Walther v. United Parcel Service, Inc., No. 2:2009cv00494 - Document 56 (E.D. Cal. 2009)

Court Description: ORDER denying 25 dft's motion for leave to amend to file a counterclaim, signed by Judge John A. Mendez on 12/11/09. (Kastilahn, A)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Case No.: 2-09-CV-0494-JAM-KJM LARRY WALTHER, 12 ORDER DENYING DEFENDANT’S MOTION FOR LEAVE TO FILE A COUNTERCLAIM Plaintiff, 13 v. 14 15 UNITED PARCEL SERVICE, INC. and DOES 1 through 20, inclusive, 16 Defendants. 17 18 ______________________________/ 19 20 21 This matter comes before the Court on Defendant United Parcel Service, Inc.’s (“UPS”) motion for leave to file a 22 counterclaim against Plaintiff Larry Walther (“Plaintiff”) 23 pursuant to Federal Rule of Civil Procedure 15. 24 25 26 27 28 1 (Doc. # 26). 1 Plaintiff opposes the motion. 2 forth below, Defendant’s motion is DENIED. 1 (Doc. # 35). For the reasons set 3 I. FACTUAL AND PROCEDURAL BACKGROUND 4 Plaintiff filed the present action against UPS on August 5 6 13, 2008 in Sacramento County Superior Court. 7 complaint alleges three causes of action against UPS for: (1) 8 Plaintiff’s violation of the California Family Rights Act; (2) violation of 9 the Fair Employment and Housing Act; and (3) wrongful demotion 10 11 in violation of public policy. UPS served document requests to Plaintiff on August 27, 12 13 14 2008. Pl’s Opp., Doc. # 35, at 1. On October 29, 2008, UPS received Plaintiff’s discovery responses, which included a 15 compact disc with six audio recordings of conversations between 16 17 Plaintiff and various UPS employees and managers. Def’s Mot., 18 Doc. # 26, at 2. Thereafter, UPS’s counsel listened to the 19 compact disc recordings. 20 among other things, Plaintiff’s complaints about his demotion Id. The conversations concerned, 21 and medical issues. Id. 22 UPS served Requests for Admission to Plaintiff on or about 23 24 December 18, 2008 regarding these recordings. Id. at 3. On 25 January 26, 2009, UPS received Plaintiff’s discovery responses 26 27 28 1 Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h). 2 1 2 in which Plaintiff declined to respond based on the Fifth Amendment. Id. UPS removed the matter to this Court on 3 February 20, 2009. (Doc. # 1). On April 21, 2009 the parties 4 5 submitted their Joint Status Report and informed the Court that 6 they did not intend to amend any of the pleadings. 7 The Court issued a Pre-trial Scheduling Order that prohibited 8 (Doc. # 13). any further amendments to pleadings except with leave of court, 9 good cause having been shown. (Doc. # 18). The Court set the 10 11 12 discovery deadline for December 31, 2009 and set jury trial for May 24, 2010. 13 14 Id. Defendant’s instant motion for leave to amend to file a counterclaim against Plaintiff for violation of Penal Code 15 Section 632 was filed on September 22, 2009, almost one year 16 17 from the date that Defendant had notice of the recordings, and 18 months after the issuance of the Court’s Pre-trial Scheduling 19 Order prohibiting further amendment absent good cause. 20 Nevertheless, Defendant seeks leave to amend to file a 21 counterclaim based on the recordings it received in October 22 2008. 23 II. OPINION 24 25 The Court’s Pre-trial Scheduling Order expressly included 26 the requirement to show good cause to justify amendment of the 27 pleadings. (Doc. # 18). As such, Defendant’s motion must first 28 3 1 2 be evaluated under Federal Rule of Civil Procedure 16(b). 2 Johnson v. Mammoth Recreations, 975 F.2d 604, 607-08 (9th Cir. 3 1992). Rule 16(b) states that “[a] schedule may be modified 4 5 only for good cause and with the judge’s consent.” 6 P. 16(b)(4). 7 diligence of the party seeking the amendment.” 8 Fed. R. Civ. The “good cause” standard “primarily considers the Recreations, 975 F.2d at 609. Mammoth The Pre-trial Scheduling Order 9 can only be modified “if it cannot reasonably be met despite the 10 11 diligence of the party seeking the extension.” Id. When 12 evaluating whether a party was diligent, the Ninth Circuit has 13 determined that “the focus of the inquiry is upon the moving 14 party’s reasons for modification. If that party was not 15 diligent, the inquiry should end.” Id. at 610. 16 Only after the moving party has demonstrated diligence 17 18 under Rule 16 does the Court apply the standard under Rule 15 to 19 determine whether amendment was proper. 20 See Id. at 608. Here, Defendant UPS has not demonstrated good cause under 21 Rule 16 to permit amendment of the Pre-trial Scheduling Order. 22 Defendant simply argues that it “reasonably took some time to 23 24 evaluate its strategy with respect to the counterclaim” and that 25 any additional delay in filing the instant motion was “due to 26 27 28 2 Defendant’s motion fails to recognize that the liberal amendment standard set out in Rule 15(a) is inapplicable until Plaintiff first demonstrates that “good cause” as prescribed by Rule 16(b) justifies the amendment. 4 1 2 factors inherent in litigation.” Pl’s Reply, Doc. # 37, at 2. UPS concedes that it received the recordings of the 3 conversations between Plaintiff and UPS employees and managers 4 5 on October 29, 2008. As such, Defendant was aware of the 6 circumstances giving rise to a counterclaim against Plaintiff 7 for violation of Penal Code Section 632 at the time the parties 8 submitted their Joint Status Report. Nevertheless, UPS remained 9 silent about any intention to file a counterclaim. Such an 10 11 omission is not “compatible with a finding of diligence.” 12 Mammoth Recreations, 975 F.2d at 609. 13 filing a counterclaim have an obligation to alert the Rule 16 14 Parties anticipating scheduling judge of the nature and timing of such anticipated 15 amendments in their status reports so that the judge may 16 17 18 properly create a workable scheduling order. UPS also asserts it had good cause for filing the instant 19 motion after the Pre-trial Scheduling Order because Plaintiff’s 20 discovery requests were “time-consuming” and UPS prepared its 21 counterclaim and associated papers as soon as it “gained 22 availability” to do so. Def’s Reply, Doc. # 37, at 2. 23 24 Defendant’s conduct and explanation is insufficient to 25 demonstrate good cause to permit the filing of its proposed 26 counterclaim at this late stage in the litigation, where the 27 discovery deadline is December 31, 2009 and dispositive motions 28 are due by February 3, 2010. Defendant’s “carelessness is not 5 1 2 compatible with a finding of diligence and offers no reason for a grant of relief.” See id. There is simply no justifiable 3 reason for Defendant’s delay in failing to file a counterclaim 4 5 until late September 2009. Under these circumstances, 6 Defendant’s have failed to satisfy the threshold “diligence” 7 requirement of Rule 16, and thus, Defendant’s motion must be 8 DENIED. 9 III. ORDER 10 11 12 For the above reasons, Defendant’s motion for leave to amend to file a counterclaim is DENIED. 13 14 IT IS SO ORDERED. 15 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE Dated: December 11, 2009 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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