Green v. County of Yuba ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JUSTIN GREEN, individually and No. 2:18-cv-02234-JAM-AC doing business as GREEN 11 SOLUTIONS, 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO AMEND 13 v. 14 COUNTY OF YUBA, et. Al, 15 Defendants. 16 17 On August 16, 2018, Justin Green (“Plaintiff”) filed this 18 action against Yuba County and several of its employees including 19 Jeremy Strang, John Jacenich, and Melanie Marquez (“Defendants”) 20 who were involved in a nuisance abatement action against 21 Plaintiff’s property that took place in August 2017. See Compl. 22 ¶¶ 8-10, 14-31, ECF No. 1. Plaintiff has amended his complaint 23 twice. See First Am. Compl. (“FAC”), ECF No. 7; Second Am. 24 Compl. (“SAC”), ECF No. 14. Plaintiff now moves for leave to 25 file a Third Amended Complaint (“TAC”) to add Kevin Mallen 26 (“Mallen”) as a named defendant. See Mot. to Am. (“Mot.”), ECF 27 No. 28. Defendants oppose the motion. See Opp’n, ECF No. 42. 28 Plaintiff filed a reply. See Reply, ECF No. 45. 1 For the reasons set forth below, the Court DENIES 2 Plaintiff’s Motion to Amend.1 3 4 I. BACKGROUND2 5 On August 22, 2019, the Court issued an initial pretrial 6 scheduling order pursuant to Federal Rule of Civil Procedure 7 16(b) which established a cut-off date for joining additional 8 parties and amending the complaint. See Sched. Order, ECF No. 9 24. Specifically, the scheduling order states: “No further 10 joinder of parties or amendments to pleadings is permitted except 11 with leave of court, good cause having been shown.” Id. at 1. 12 In December 2020, the parties stipulated to continuing some of 13 the Court’s pretrial scheduling order deadlines but left the cut- 14 off date for joining additional parties and making amendments 15 unchanged. See Order Modifying Sched. Order Deadlines, ECF No. 16 27; see also Reply at 2 (acknowledging the deadline to amend 17 pleadings was “the date of entry of the original scheduling 18 order”). 19 On November 13, 20203, Defendants served a supplemental 20 initial disclosure, identifying Kevin Mallen as the individual 21 who “oversaw the inspection and abatement at issue, as well as 22 1 This motion was determined to be suitable for decision without 23 oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for July 27, 2021. 24 2 The facts of the case are set forth in detail in the Court’s prior Order. See Order on Mot. to Dismiss at 2-4, ECF No. 13. 25 They will not be reduced into writing again here. 26 3 Defendants claim this supplemental initial disclosure was served on November 11, 2020, see Opp’n at 3, while Plaintiff 27 insists it was November 13, 2020, see Reply at 3. As explained below, even under Plaintiff’s stated date, the Court finds 28 Plaintiff was not diligent in seeking leave to amend. 1 presentation to the Board of the nuisance conditions.” 2 Whitefleet Decl. ¶ 4, ECF No. 42-1; see also Reply at 3 3 (acknowledging receipt of this document). 4 On December 15, 2020, Defendants provided Plaintiff with a 5 transcript of the August 22, 2017 Board of Supervisors hearing, 6 which reflects that during that hearing Mallen verbally 7 identified himself by name and title – namely as the Yuba County 8 Community Development Director – and cross-examined Plaintiff who 9 was also present. Whitefleet Decl. ¶ 3; see also Ex. B to 10 Whitefleet Decl. 11 Plaintiff, however, contends Mallen’s “direct role” in the 12 nuisance abatement action was not disclosed to him until “the 13 deposition of non-party Christopher Monaco” which “occurred on 14 April 22, 2021 and the transcript delivered on May 13, 2021.” 15 Mot. at 2. 16 17 II. OPINION 18 A. Legal Standard 19 Once the Court has filed a pretrial scheduling order, a 20 party’s motion to amend must satisfy Federal Rule of Civil 21 Procedure 16(b)’s “good cause” requirement. Johnson v. Mammoth 22 Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). This 23 requirement primarily looks to “the diligence of the party 24 seeking the amendment.” Id. at 609. “[T]he existence or degree 25 of prejudice to the party opposing the modification might supply 26 additional reasons to deny a motion.” Id. But unlike Federal 27 Rule of Civil Procedure 15’s analysis, “the focus of the inquiry 28 is upon the moving party’s reasons for seeking modification.” 1 Id. If the “[moving] party was not diligent, the inquiry should 2 end.” Id. 3 B. Rule 16(b) 4 Plaintiff argues he should be granted leave to amend the 5 complaint to add Mallen as a named defendant because “the direct 6 role Mr. Mallen played in the nuisance abatement action” was not 7 “discovered until the deposition of nonparty Christopher Monaco 8 on April 22, 2021 and receipt of his deposition transcript on May 9 13, 2021.” Reply at 3; Mot. at 4. By filing this Motion on May 10 25, 2021, Plaintiff contends he was diligent. See Reply. 11 Defendants counter that Plaintiff has been aware or at least 12 should have been aware of Mallen’s involvement in the abatement 13 action for some time now, and thus, has not been diligent in 14 seeking amendment. Opp’n at 4-6. As a result, Plaintiff has 15 failed to establish good cause. The Court agrees. 16 Defendants disclosed Mallen’s name to Plaintiff on November 17 13, 2020 in its supplemental initial disclosure. See Ex. C to 18 Whitefleet Decl. In that disclosure, Defendant not only 19 identified Mallen, but also described him as an individual likely 20 to have discoverable information, noting that he “oversaw the 21 inspection and abatement at issue, as well as presentation to the 22 Board of the nuisance conditions.” Id. at 2. Plaintiff 23 acknowledges receipt of this supplemental disclosure. Reply at 24 3. Thus, as of November 2020, Plaintiff knew that Mallen was the 25 Yuba County employee who oversaw the inspection and abatement at 26 issue. 27 Further, on December 15, 2020, Defendants provided Plaintiff 28 with a transcript of the August 22, 2017 Board of Supervisors’ 1 hearing, indicating that Kevin Mallen verbally identified himself 2 by name and title – namely as the Yuba County Community 3 Development Director – at the hearing and cross-examined 4 Plaintiff. Whitefleet Decl. ¶ 3; see also Ex. B to Whitefleet 5 Decl. 6 In light of the November and December 2020 disclosures, 7 Plaintiff’s argument that he did not know of the direct role Mr. 8 Mallen played until the deposition of Christopher Monaco strains 9 credulity. Reply 2-5. By the end of 2020, Plaintiff clearly was 10 on notice of the central role Mallen played; it was at that 11 point, he should have moved for leave to amend. Waiting until 12 May 25, 2020 - almost six months later – to bring this motion to 13 amend is not diligent. See Johnson, 975 F.2d at 610 (affirming 14 the district court’s finding that waiting four months after 15 deadline set forth in the scheduling order passed was not 16 diligent and failed to establish good cause); see also 17 Experexchange, Inc. v. Doculex, Inc., No. C-08-03875-JCS, 2009 WL 18 3837275, at *29 (N.D. Cal. Nov. 16, 2009)(finding delay of two 19 months after discovering new facts did not meet the Rule 16 good 20 cause standard). 21 The Court further notes that were Plaintiff granted leave to 22 amend at this late stage, after discovery has closed and trial 23 has been set for November 8, 2021, Defendants would suffer 24 prejudice. Opp’n at 7-8. Any amendment would cause delay and 25 hinder Defendants’ ability to prepare for trial. Id. 26 Plaintiff’s lack of diligence thus prevents him from making 27 the requisite showing of “good cause” under Rule 16(b) here. 28 Under Johnson, the inquiry properly ends there. See 975 F.2d at nnn nen nn I EO I EO EEE 1 609 (instructing that if the “[moving] party was not diligent, 2 the inquiry should end.”). Accordingly, the Court does not reach 3 the parties’ additional arguments regarding the statute of 4 limitations and relation back, see Opp’n at 6-7; Reply at 6, nor 5 those regarding the Forman factors, see Opp’n at 7-8; Mot. at 4. 6 C. Sanctions 7 A violation of the Court’s standing order requires the 8 offending counsel (not the client) to pay $50.00 per page over 9 the page limit to the Clerk of Court. Order re Filing 10 Reguirements at 1, ECF No. 3-2. Moreover, the Court does not 11 consider arguments made past the page limit. Id. 12 Plaintiff’s reply brief exceeds the Court’s page limit by 2 13 | pages. See Reply. Plaintiff’s counsel must therefore send a 14 check payable to the Clerk for the Eastern District of California 15 for $100.00 no later than seven days from the date of this Order. 16 17 Til. ORDER 18 Because Plaintiff has failed to show good cause for his 19 | dilatory motion to amend, the Court DENIES Plaintiff’s Motion to 20 Amend. 21 IT IS SO ORDERED. 22 | Dated: July 30, 2021 23 kA 24 teiren staves odermacr 7008 25 26 27 28