FLIR Systems, Inc. v. Sierra Media, Inc. et al, No. 3:2010cv00971 - Document 133 (D. Or. 2012)
Court Description: OPINION AND ORDER: FLIR's nunc pro tunc motion 88 for leave to amend is DENIED, and Defendants' motions to dismiss 80 82 are DENIED as moot. Signed on 1/25/12 by Magistrate Judge Dennis J. Hubel. (kb)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF OREGON 9 PORTLAND DIVISION 10 FLIR SYSTEMS, INC., an Oregon 11 corporation, 12 13 14 15 16 ) ) ) 3:10-cv-00971-HU Plaintiff, ) ) vs. ) OPINION AND ) ORDER SIERRA MEDIA, INC., a Washington ) corporation, and FLUKE CORPORATION,) a Washington corporation, ) ) Defendants. ) ________________________________ 17 18 Devon Zastrow Newman SCHWABE, WILLIAMSON & WYATT, P.C. 19 1211 SW 5th Avenue, Suite 1900 Portland, Oregon 97204 20 Williams A. Brewer III 21 Michael J. Collins C. Dunham Biles 22 BICKEL & BREWER 4800 Comerica Bank Tower 23 1717 Main Street Dallas, Texas 75201-4612 24 Attorneys for Plaintiff 25 Kenneth R. Davis II 26 Parna A. Mehrbarni LANE POWELL, P.C. 27 601 SW Second Avenue, Suit 2100 Portland, Oregon 97204-3158 28 OPINION AND ORDER 1 1 Dane H. Butswinkas Matthew V. Johnson 2 WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. 3 Washington, DC 20005 4 Attorneys for Defendant Fluke Corporation 5 Benjamin N. Souede David H. Angeli 6 ANGELI LAW GROUP LLC 121 SW Morrison Street, Suite 400 7 Portland, OR 97204 8 Attorneys for Defendant Sierra Media, Inc. 9 HUBEL, Magistrate Judge: 10 11 Opinion and Order Pursuant to Federal Rules of Civil Procedure ( Rule ) 12(b)(6) 12 and 12(f), defendants Sierra Media, Inc. ( Sierra ) and Fluke 13 Corporation ( Fluke ) (collectively, Defendants ) move to dismiss 14 plaintiff FLIR Systems, Inc. s ( FLIR ) Second Amended Complaint 15 ( SAC ) in its entirety or, in the alternative, to dismiss Counts 16 Two and Seven and to strike FLIR s demand for punitive damages. 17 Also before the court is FLIR s nunc pro tunc motion for leave to 18 file its SAC. The parties have consented to proceed before a U.S. 19 Magistrate pursuant to 28 U.S.C. ยง 636(c). Based on the reasons 20 set forth below, FLIR s nunc pro tunc motion [88] for leave is 21 DENIED, and Defendants motions [80] [82] are DENIED as moot. Factual Background1 22 23 This action arises between competitors in the manufacture and 24 sale of thermal imaging cameras. FLIR deals in infrared cameras, 25 thermography, and thermal imaging equipment. FLIR s products are 26 27 1 Unless otherwise indicated, the following facts are taken 28 from FLIR s First Amended Complaint ( FAC ). OPINION AND ORDER 2 1 sold in a wide range of industrial, commercial, and government 2 markets around the world. FLIR has supplied thermography and night 3 vision equipment to scientific laboratories, industrial buyers, law 4 enforcement organizations, and the military for over thirty years. 5 Fluke is a wholly-owned subsidiary of Danaher Corporation, a 6 publicly traded company, and is in the business of manufacturing, 7 distributing, and servicing electronic test tools and software. 8 Fluke also manufactures and distributes thermal imaging cameras 9 that compete with FLIR s products in interstate commerce. 10 on the other hand, is Fluke s long-time media Sierra, and marketing 11 company. Sierra and Fluke s relationship spans over fifteen years, 12 during which period Fluke has become one of Sierra s largest 13 customers. 14 According to FLIR, Fluke is unable to compete effectively 15 against them on the basis of price, quality, and service. It is 16 therefore alleged that Fluke has resorted to disparaging FLIR to 17 potential customers by making false claims regarding the durability 18 of FLIR s cameras. It is alleged Fluke, with the assistance of 19 Sierra, produced and distributed an intentionally misleading video 20 (the Video ) that includes a test, which purports to compare the 21 durability and reliability of one Fluke thermal imaging camera 22 the Fluke Ti32 (the Fluke Camera ) - to three of FLIR s thermal 23 imaging camera - FLIR I-7, FLIR I-60, and FLIR T-400 (the FLIR 24 Cameras ). Defendants claimed to have tested the durability, 25 quality, and reliability of the thermal imaging cameras by dropping 26 them from a height of two meters onto a concrete floor (the 27 Test ). FLIR claims that the Test shown in the Video was arranged 28 by Defendants to create the false impression that an independent OPINION AND ORDER 3 1 test was run by Sierra to determine which of the thermal imaging 2 cameras manufactured by FLIR, Fluke, and another manufacturer were 3 the most durable, but the Test was neither independently run, nor 4 fairly represented in the Video. 5 6 Procedural Background This court held a Rule 16 conference in this matter on 7 November 30, 2010. In the resulting scheduling order, the court 8 set April 1, 2011, as the deadline for the filing of a motion, 9 opposed or stipulated, to amend a pleading to add a party or claim. 10 FLIR filed its FAC against Defendants on December 30, 2010, 11 setting forth the following causes of action: (1) false advertising 12 under the Lanham Act; (2) trade libel/commercial disparagement; (3) 13 intentional interference with prospective economic relations; (4) 14 civil conspiracy; (5) aiding and assisting; and (6) declaratory 15 relief regarding Fluke s alleged trademark. Soon thereafter, Fluke 16 and/or Sierra moved to dismiss FLIR s state law claims under Rule 17 12(b)(6), e.g., FLIR s causes of action for trade libel/commercial 18 disparagement, intentional interference with prospective economic 19 relations, civil conspiracy, and aiding and assisting. 20 On May 10, 2011, the court granted Defendants motion to 21 dismiss with respect to FLIR s intentional interference with 22 prospective economic relations claim. On May 17, 2011, pursuant to 23 the stipulation of the parties, the court entered a new Scheduling 24 Order, which provided that the deadline to file a stipulated or 25 opposed motion to add a party, claim, or defense is July 8, 2011. 26 (Doc. #68.) 27 At FLIR s request, on June 30, 2011, a telephone conference 28 was held in which counsel for F[LIR] inquired whether the parties OPINION AND ORDER 4 1 would agree to jointly seek an extension of the Court s July 8, 2 2011 deadline. (Fluke Corp. s Mem. Supp. Mot. Dismiss ( Fluke s 3 Mem. ) at 5 n.2.) Defendants asked whether F[LIR] intended to 4 amend the FAC, and, if so, how, counsel replied that F[LIR] wanted 5 another two to four weeks to think about doing so. 6 Id. Counsel for both defendants stated that they were not adverse to a reasonable extension to put pen to paper regarding a specific new claim or claims, but that they would not agree to seek extension giving F[LIR] additional time for a deadline that had been pending for three months solely to give F[LIR] more time to further ponder whether to file yet another amended complaint. Without any further discussion, F[LIR] simply filed the SAC a little over one week later. 7 8 9 10 11 Id. 12 On July 8, 2011, the day of the Scheduling Order deadline, 13 FLIR filed its SAC, which added: (1) an unfair competition claim 14 under Oregon common law; (2) an agency cause of action; and (3) the 15 remedy fo punitive damages for FLIR s unfair competition, civil 16 conspiracy, aiding and assisting, and agency claims. FLIR concedes 17 the fact that they filed its SAC without first obtaining leave of 18 court or Defendants written consent to amend. Defendants s Rule 19 12(b)(6) and 12(f) motions, which are currently before the court, 20 were filed on August 8, 2011. FLIR s nunc pro tunc motion for 21 leave to file its SAC was filed on September 1, 2011. 22 Legal Standard 23 I. Rule 15 24 Rule 15 governs amendments to pleadings, and states, in 25 relevant part, that where a party has already been served with a 26 responsive pleading, a party may amend its pleading only with the 27 opposing party s written consent or the court s leave. The court 28 should freely give leave when justice so requires. Lyon v. Chase OPINION AND ORDER 5 1 Bank USA, N.A., Civ. No. 07-1779-AC, 2009 WL 3047240, at *1 (D. Or. 2 Sept. 22, 2009) (quoting Fed. R. Civ. P. 15(a)(1)-(2) (2007)). 3 Whether to grant or deny a motion to amend pleadings is a 4 matter within the court s discretion. Nguyen v. Saxon Mortg. 5 Servs., Inc., No. CV-10-353-HZ, 2011 WL 2600998, at *5 (D. Or. June 6 30, 2011) (citing Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 7 1331 (9th Cir. 1996)). Although a liberal standard is applied to 8 motions for leave to amend, a district court need not grant leave 9 to amend where the amendment: (1) prejudices the opposing party; 10 (2) is sought in bad faith; (3) produces an undue delay in 11 litigation; or (4) is futile. AmerisourceBergen Co. v. Dialysist 12 W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). Futility of an 13 amendment alone can justify the denial of a motion for leave to 14 amend. Nguyen, 2011 WL 2600998, at *1. 15 II. Rule 16 16 Where the court has issued a pretrial scheduling order 17 establishing a timetable for amending the pleadings, the pretrial 18 order controls the subsequent course of the action and may be 19 modified only upon a showing of good cause. Chao v. Westside 20 Drywall, Inc., 709 F. Supp. 2d. 1037, 1071-72 (D. Or. 2010). Under 21 Rule 16(b), a party must show good cause for not having amended its 22 complaint before 23 expired. Id. at 1072. 24 the time specified in the scheduling order A party seeking to amend a pleading after a scheduling order 25 has been entered . . . must first show good cause for amending 26 the scheduling order before the court considers whether 27 amendment satisfied the requirements of Rule 15(a). the Ashby v. 28 Farms Ins. Co., No. 01-CV-1446-BR, 2007 WL 5479070, at *2 (D. Or. OPINION AND ORDER 6 1 Sept. 26, 2007) (citing Johnson v. Mammoth Recreations, Inc., 975 2 F.2d 604, 608 (9th Cir. 1992)). Rule 16(b) s good cause 3 standard primarily considers the diligence of the party seeking the 4 amendment . . . . The focus is upon the moving party s reasons for 5 seeking modification. Id. at *2. 6 III. Motion to Dismiss 7 A court may dismiss a complaint for failure to state a claim 8 upon which relief can be granted pursuant to Rule 12(b)(6). In 9 considering a Rule 12(b)(6) motion to dismiss, the court must 10 accept all of the claimant s material factual allegations as true 11 and view all facts in the light most favorable to the claimant. 12 Reynolds v. Giusto, No. 08-CV-6261, 2009 WL 2523727, at *1 (D. Or. 13 Aug. 18, 2009). The Supreme Court addressed the proper pleading 14 standard under Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly, 550 15 U.S. 544 (2007). Twombly established the need to include facts 16 sufficient in the pleadings to give proper notice of the claim and 17 its basis: 18 19 20 While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. 21 Id. at 555 (brackets omitted). 22 Since Twombly, the Supreme Court has clarified that the 23 pleading standard announced therein is generally applicable to 24 cases governed by the Rules, not only to those cases involving 25 antitrust allegations. Ashcroft v. Iqbal,---U.S.---, 129 S. Ct. 26 1937, 1949 (2009). The Iqbal court explained that Twombly was 27 guided by two specific principles. 28 OPINION AND ORDER 7 First, although the court must 1 accept as true all facts asserted in a pleading, it need not accept 2 as true any legal conclusion set forth in a pleading. Id. Second, 3 the complaint must set forth facts supporting a plausible claim for 4 relief and not merely a possible claim for relief. 5 instructed that [d]etermining whether a Id. complaint The court states a 6 plausible claim for relief will . . . be a context-specific task 7 that requires the reviewing court to draw on its judicial 8 experience and common sense. Iqbal, 129 S. Ct. at 1949-50 (citing 9 Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007)). The court 10 concluded: While legal conclusions can provide the framework of a 11 complaint, they must be supported by factual allegations. When 12 there are well-pleaded factual allegations, a court should assume 13 their veracity and then determine whether they plausibly give rise 14 to an entitlement to relief. 15 Id. at 1950. The Ninth Circuit further explained the Twombly-Iqbal standard 16 in Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). The 17 Moss court reaffirmed the Iqbal holding that a claim has facial 18 plausibility when the plaintiff pleads factual content that allows 19 the court to draw the reasonable inference that the defendant is 20 liable for the misconduct alleged. Moss, 572 F.3d at 969 (quoting 21 Iqbal, 129 S. Ct. at 1949). The court in Moss concluded by 22 stating: In sum, for a complaint to survive a motion to dismiss, 23 the non-conclusory factual content, and reasonable inference from 24 that content must be plausibly suggestive of a claim entitling the 25 plaintiff to relief. Moss, 572 F.3d at 969. 26 IV. Motion to Strike 27 Rule 12(f) provides that [t]he court may strike from a 28 pleading an insufficient defense or any redundant, immaterial, OPINION AND ORDER 8 1 impertinent or scandalous matter on their own initiative or 2 pursuant to a party s motion. FED. R. CIV. P. 12(f). Granting a 3 motion to strike is within the discretion of the district court. 4 See Fed. Sav. & Loan Ins. Corp. v. Gemini Mgmt., 921 F.2d 241, 244 5 (9th Cir. 1990). Motions to strike are disfavored and should not 6 be granted unless it can be shown that no evidence in support of 7 the allegation would be admissible. Pease & Curren Ref., Inc. v. 8 Spectrolab, Inc., 744 F. Supp. 945, 947 (C.D. Cal. 1990) (internal 9 quotation marks omitted), abrogated on other grounds by Stanton Rd. 10 Ass n v. Lohrey Enters., 984 F.2d 1015 (9th Cir. 1993). Discussion2 11 12 I. FLIR s Nunc Pro Tunc Motion for Leave to File its SAC 13 FLIR claims that it erroneously concluded that amendment was 14 a matter of right when the deadline to amend was reset after the 15 Court s motions to dismiss order was entered on May 10, 2011. 16 (Pl. s Mem. Supp. Nunc Pro Tunc Mot. ( Pl. s Mem. ) at 4.) While 17 I take FLIR s argument into consideration, I also note that in 18 filing their SAC, FLIR did not exclude its intentional interference 19 with prospective 20 dismissed. economic relations claim which I previously Indeed, FLIR was not at risk of having its case 21 dismissed entirely. 22 FLIR cites Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection 23 Serv. Inc., 911 F.2d 242, 247 (9th Cir, 1990), for the proposition 24 that, Ninth Circuit precedent provides that FLIR s timely- 25 submitted Second Amended Complaint should be construed as a motion 26 27 2 Because Defendants motions/responses raise essentially the same issues, the court need not separately address the arguments 28 raised therein. OPINION AND ORDER 9 1 for leave to amend. (Pl. s Reply Br. Supp. Nunc Pro Tunc Mot. 2 ( Pl. s Reply ) at 3 n.2). Fluke argues that Cook, which is the 3 single case cited by FLIR, presents a completely different factual 4 circumstance and merely stands for the unremarkable proposition 5 that courts generally grant to leave to amend after dismissing a 6 complaint unless no amendment can cure the defect. . . . The 7 proposed amendments to 8 deficiencies in the FAC. the do not address any pleading (Fluke s Resp. Opp n Nunc Pro Tunc Mot. 9 ( Fluke s Resp. ) at 6. n.2). 10 SAC I agree with Fluke. In Cook, the plaintiff had filed a complaint on April 29, 11 1988, and an amended complaint on May 16, 1988. Id. at 243. On 12 August 2, 1988, the district court granted, without leave to amend, 13 the defendant s motion to dismiss for failure to state a claim 14 under the Lanham Act. Id. The district judge declined to exercise 15 jurisdiction over the pendent state claims in the absence of a 16 cognizable claim under the Lanham Act. Id. On appeal, the 17 plaintiff argued that the dismissal was an abuse of discretion 18 because it could have added other federal claims which would have 19 saved the pendent claims from dismissal[.] Id. at 244. In 20 addressing the denial of leave to amend, the Ninth Circuit stated 21 that: 22 23 24 25 We have held that in dismissal for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts. Therefore, it is of no consequence that [the appellant] did not file a formal motion, accompanied by a proposed amendment, requesting leave to amend. 26 Id. at 247 (internal citations omitted). Nevertheless, Cook upheld 27 the district court s decision to grant the motion without leave to 28 OPINION AND ORDER 10 1 amend since the federal causes of action that [the appellant] 2 lists in its reply brief that it contends could have been added to 3 save the pleading are either incomprehensible or futile. 4 Id. I find FLIR s reliance on Cook misplaced because Cook, and the 5 cases that came before it, focus on the liberality with which a 6 court should grant leave to amend after dismissing a complaint 7 despite the absence of a formal request, in order to avoid the 8 pitfall of dismissing with prejudice a pleading which could be 9 cured. See Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962) 10 (recognizing that if a complaint was dismissed for failure to state 11 a claim on which relief could be granted, leave to amend should be 12 granted unless the court determine[s] that the allegation of other 13 facts consistent with the challenged pleading could not possibly 14 cure the deficiency [and] . . . [i]t is of no consequence that no 15 request to amend the pleading was made in the district court. ); 16 see also Sidebotham v. Robison, 216 F.2d 816, 826 (9th Cir 1955) 17 (noting that the original action was dismissed in its entirety 18 without leave to amend, id. at 823, and that it was error to 19 dismiss a complaint with prejudice if it appears that any relief 20 could be granted on the facts stated. . . . [T]his course should be 21 followed although no request to amend the pleading [is] made to the 22 district court. ) FLIR is not seeking to cure the deficiencies that 23 led to the dismissal of its interference with prospective economic 24 advantage claim. 25 Although FLIR relied solely on Cook, there is admittedly some 26 support for its position that the filing of an amended complaint 27 may be construed as a motion for leave to amend. See Franco v. 28 Sitel Corp., No. Civ. 03-1688-JE, 2004 WL 2075025, at *1 (D. Or. OPINION AND ORDER 11 1 Sept. 15, 2004) (recognizing that the pro se plaintiff failed to 2 comply with Rule 15(a), but nevertheless treating her filing of an 3 amended complaint as a request for leave to amend); see also Dauven 4 v. George Fox Univ., No. 09-CV-305-PK, 2011 WL 901026, *1 (D. Or. 5 Mar. 15, 2011) (affirming the decision to construe a pro 6 se plaintiff s amended complaint, which was filed without leave of 7 Court, as an informal motion seeking leave to amend the Complaint 8 and a proposed amended complaint[.] ) These cases are not helpful 9 to FLIR s situation. They do not involve the failure to file an 10 opposed motion to amend by a represented corporate party prior to 11 a court imposed deadline to do so. Instead they involve leniency 12 in interpreting the actions of an unrepresented party.3 13 As the cases below demonstrate, experienced practitioners are 14 not always afforded such leniency. In Saunders v. Dist. of 15 Columbia, 711 F. Supp. 2d 42 (D.D.C. 2010), a Rule 12(b)(6) motion 16 was before the court, id. at 44-45, and the plaintiff had filed a 17 SAC without 18 consent. obtaining Id. at 51. leave or the opposing party s written The plaintiff had already amended her 19 complaint, thereby requiring her to move for leave of the Court or 20 obtain the opposing party s written consent before additional 21 amendments could be made. This she ha[d] not done. Accordingly, 22 Plaintiff s Second Amended Complaint [was] [] STRICKEN from the 23 record. Id. The operative complaint thus remained Plaintiff s 24 Amended Complaint. Id. at 49. 25 26 3 See Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986) 27 (noting that pro se litigants should be treated with great leniency when evaluating their technical compliance with the Federal Rules 28 of Civil Procedure). OPINION AND ORDER 12 1 Similarly, in Cummings v. Adidas USA, No. 08 Civ. 9860(SAS), 2 2009 WL 3270888 (S.D. N.Y. Oct. 5, 2009),the plaintiffs filed a SAC 3 without seeking leave or the defendants written consent. 4 *1. Id. at Cummings determined that the plaintiffs had failed to comply 5 with Rule 15(a)(2) and paragraph III(B) of the court s Individual 6 Rules and Procedures. Id. Thus, plaintiff s SAC was stricken from 7 the record and their later request to amend was denied. 8 Id. Moreover, in Cooper v. City of Starke, Fla., No. 3:10-cv-28-J- 9 34MCR, 2011 WL 2531192 (M.D. Fla. June 24, 2011), the court noted 10 that plaintiffs SAC had been stricken by the court because 11 plaintiffs neither obtained leave of court by motion or consent of 12 the parties. Id. at *1; see also Allia v. Target Corp., 2008 WL 13 1732964, at *9 (D. N.J. Apr. 10, 2008) (finding a SAC improperly 14 filed and determining that it would not be considered because the 15 plaintiff failed to obtain leave or the opposing party s consent, 16 as required by Rule 15(a)(2)). 17 Finally, in Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 18 1280 (N.D. Ga. 2009), the plaintiffs had not sought leave of the 19 court before filing their SAC. Id. at 1293. Plaintiffs argued, as 20 here, that they interpreted a previous court order as allowing them 21 leave to file a SAC. Id. at 1292. Anderson concluded that 22 plaintiffs failed to comply with Rule 15 and they had previously 23 amended their complaint as a matter of right. Id. at 1293. 24 Having done so, [p]laintiffs [were] not entitled to further amend 25 their pleadings as a matter of right. Id. Thus, plaintiffs SAC 26 was determined to have been filed in violation of the Federal 27 Rules of Civil Procedure and was stricken from the record. Id. at 28 1294. OPINION AND ORDER 13 1 FLIR s counsel is no stranger to federal motion practice and 2 is familiar with this court s local rules. After Fluke filed a 3 12(b)(6) motion on November 30, 2010, FLIR had until December 21, 4 2010, to file an amended complaint as a matter of course pursuant 5 to Rule 15(a)(1).4 FLIR needed additional time to file its amended 6 complaint, however. Citing to Local Rule 16-3, FLIR filed an 7 unopposed motion to extend the deadline for filing its amended 8 complaint to December 30, 2010.5 FLIR s counsel knew enough to 9 confer about an extension to the deadline for filing a motion to 10 amend and did so. However, either unable or unwilling to discuss 11 the proposed amendment s details with Fluke, a stipulation to an 12 extension was not forthcoming. Despite this familiarity with the 13 rules and the court imposed deadline, the filing of FLIR s SAC 14 failed to comply with the rules. Also ignored in the process was 15 Local Rule 15-1(c) s requirement that, any party moving for leave 16 to amend a pleading must, in the mandatory legal memorandum 17 supporting the motion, describe with particularity all of the 18 proposed changes to the party s pleading. Wright v. Am. s 19 Bulletin Newspaper Corp., No CV 10-6118-PK, 2011 WL 2213722, at *10 20 (D. Or. May 5, 2011) (citing L.R. 15-1(c)). Additionally, Fluke 21 points out FLIR did not meet and confer with Defendants regarding 22 23 4 Rule 15 provides, in pertinent part, as follows: (1) 24 Amending as a Matter of Course. A party may amend its pleading once as a matter of course: (A) 21 days after serving it, or (B) if the 25 pleading is one to which a responsive pleading is required, 21 days 26 after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. 27 FED. R. CIV. P 15(a)(1). 28 5 (Doc. #30.) OPINION AND ORDER 14 1 its proposed amendments in the SAC, in contravention of the Local 2 Rules. (Fluke s Resp. at 6 n.2). 3 For the reasons given in these cases, and the facts of this 4 case, I decline to interpret FLIR s filing of the SAC as a motion 5 for leave to file it. 6 With this in mind, I must decide whether to grant FLIR s 7 Motion to Amend nunc pro tunc filed nearly two months after the 8 deadline to do so. The first issue here is the dispute whether 9 Rule 16 s good cause standard or Rule 15 s liberal standard is 10 applicable in deciding this motion. That issue was addressed and 11 decided in Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 12 2000). The Ninth Circuit found Rule 16 s good cause standard 13 appropriate because the district court had filed a pretrial 14 scheduling order that established a timetable for amending the 15 pleadings, and the deadline had expired before [the plaintiffs] 16 moved to amend. Id. at 1294.6 As in Coleman, the deadline for 17 adding a party or claim set by this court had expired before FLIR 18 moved to amend. 19 Having determined that Rule 16(b) s good cause standard is 20 applicable, I turn to FLIR s reasons for failing to comply with the 21 Scheduling Order. In its reply brief, FLIR claims that good cause 22 exists because: 23 24 (i) FLIR was diligent with filing both its second amended complaint by the amendment deadline, and its nunc pro tunc motion for leave to amend in accordance with the 25 6 See also S & W Enters., L.L.C. v. SouthTrust Bank of Ala., N.A., 315 F.3d 533, 535-36 & n.1 (5th Cir. 2003) (agreeing with the 27 First, Second, Eighth, Ninth and Eleventh Circuits that Rule 16(b) trumps Rule 15(a) when a motion to amend comes after the deadline 28 set forth in a scheduling order) 26 OPINION AND ORDER 15 1 2 3 4 deadline to respond to Defendants motion to dismiss FLIR s Second Amended Complaint pursuant to Rule 15(a)(2); (ii) Defendants do not dispute that the amended complaint merely includes additional theories of recovery based on essentially the same facts set forth in FLIR s First Amended Complaint; and (iii) ample time exists to complete discovery. 5 (Pl. s Reply Br. at 5-6.) 6 The district court is given broad discretion in supervising 7 the pretrial phase of litigation, and its decisions regarding the 8 preclusive effect of a pretrial order . . . will not be disturbed 9 unless they evidence a clear abuse of discretion. C.F. v. Unified 10 Sch. Dist., F.3d , 2011 WL 3634159, at *7 (9th Cir. Aug. 19, 11 2011) (internal quotation marks and citation omitted). Rule 12 16(b) s good cause standard primarily considers the diligence of 13 the party seek amendment. Johnson, 975 F.2d at 609. Or, perhaps 14 more simply put, the focus of the inquiry is upon the party s 15 reasons for seeking modification. Id. However, once a party 16 fails to show diligence, the inquiry should end[,] Coleman, 232 17 F.3d at 1294, because [c]arelessness is not compatible with a 18 finding of diligence and offers no reason for a grant of relief. 19 Johnson, 975 F.2d at 609. 20 I find FLIR has failed to show diligence. 21 diligence the movant may be required to To demonstrate show that her 22 noncompliance with a Rule 16 deadline occurred or will occur, 23 notwithstanding her diligent efforts to comply, because of the 24 development of matters which could not have been reasonably 25 foreseen or anticipate at the time of the Rule 16 scheduling 26 conference and that she was diligent in seeking amendment of the 27 Rule 16 order, once it became apparent that she could not comply 28 with the order. OPINION AND ORDER Chao, 709 F. Supp. 2d. at 1072-73 (quoting 16 1 Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)). 2 FLIR has failed in both regards. FLIR was clearly aware of the 3 impeding deadline to add claims and/or parties to this case. 4 spoke with Defendants on 5 extension of the deadline. July 30, 2011, to discuss a They joint Yet, despite not obtaining Defendants 6 consent to extend the deadline, much less consent to filing the 7 SAC, FLIR failed to file a proper motion for an extension within 8 the next eight days. FLIR does not claim that notwithstanding 9 their diligent efforts matters developed which could not have been 10 foreseen, thereby preventing their compliance the July 8 deadline. 11 FLIR claims it erroneously concluded that amendment was a matter of 12 right after the court s previous motion to dismiss was entered on 13 May 10, 2011. I do not accept this explanation given the SAC that 14 was eventually filed. Nor can I find good cause when so many rules 15 that are so clear with respect to conferral about motions, and 16 disclosure of the proposed changes of an amended pleading were 17 completely ignored. Good cause to excuse the late filing of the 18 motion to amend is not present and I deny the motion to amend nunc 19 pro tunc. 20 21 Conclusion For the reasons stated above, FLIR s nunc pro tunc motion [88] 22 for leave to amend is DENIED, and Defendants motions [80] [82] are 23 DENIED as moot. 24 IT IS SO ORDERED. 25 Dated this 25th day of January, 2012. 26 /s/ Dennis J. Hubel 27 _________________________________ Dennis James Hubel Unites States Magistrate Judge 28 OPINION AND ORDER 17
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