Handel v. Rhoe et al, No. 3:2014cv01930 - Document 39 (S.D. Cal. 2015)
Court Description: ORDER granting Defendant's 30 Motion to File Amended Answer, Amended Counterclaim, and Cross-Claims. Dft must file amended answer, amended counterclaim, and cross-claims by 10/20/2015. Signed by Judge Cynthia Bashant on 10/16/2015. (jah)
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Handel v. Rhoe et al Doc. 39 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN HANDEL d/b/a/ LAW OFFICES OF SUSAN HANDEL, 12 13 14 15 Case No. 14-cv-1930-BAS(JMA) ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER, AMENDED COUNTERCLAIM, AND CROSSCLAIMS Plaintiff, v. ELIZABETH RAE RHOE, [ECF No. 30] Defendant. 16 17 AND RELATED COUNTERCLAIM. 18 19 On July 21, 2014, Plaintiff Susan Handel d/b/a Law Offices of Susan Handel 20 commenced this declaratory-relief action against Defendant Elizabeth Rae Rhoe in 21 the San Diego Superior Court related to payment for legal services. Thereafter, 22 Defendant removed this action to federal court and answered with several 23 counterclaims. Defendant now moves for leave to file an amended answer, amended 24 counterclaim, and cross-claims (“amended response”) under Federal Rule of Civil 25 Procedure 15(a). Plaintiff opposes. 26 The Court finds this motion suitable for determination on the papers submitted 27 and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the 28 Court GRANTS Defendant’s motion. –1– 14cv1930 Dockets.Justia.com 1 I. BACKGROUND 2 On June 25, 2010, Defendant was injured in an automobile collision in La Paz 3 County, Arizona, which resulted in a lawsuit in the Stanislaus Superior Court, Rhoe 4 v. Sandhu, Case No. 672661. (Compl. ¶ 4; see also Countercl. ¶ 7.) Shortly 5 thereafter, Defendant and Plaintiff entered into a written retainer agreement in San 6 Diego County in which Plaintiff “agreed to provide professional [legal] services to 7 defendant RHOE regarding injuries sustained in an automobile accident.” (Compl. 8 ¶ 5; Countercl. ¶ 8.) 9 On April 21, 2014, Plaintiff communicated to Defendant an offer to settle the 10 Sandhu action for $100,000. (Compl. ¶ 6.) Defendant was given 24 hours “to think 11 about” whether to accept the offer, with the expiration of the offer being April 22, 12 2014 at 5:00 p.m. PST. (Id. ¶ 7.) 13 Plaintiff alleges that Defendant “discharged plaintiff approximately 90 14 minutes before the expiration of said deadline to accept the settlement offer; further, 15 that approximately 15 minutes after defendant RHOE discharged plaintiff, defendant 16 RHOE then accepted the settlement offer[.]” (Compl. ¶ 8.) After “discharging 17 Plaintiff and accepting the settlement offer, defendant RHOE substituted herself as 18 her own attorney ‘in pro per’” in the Sandhu action. (Id.) These circumstances 19 culminated in a dispute “regarding the reasonable value of the services performed 20 under the contract and the amounts to be paid to plaintiff for attorney fees and costs.” 21 (Id. ¶¶ 10–12.) This dispute is central to Plaintiff’s complaint. 22 Defendant adds details surrounding the dissociation in her counterclaim, 23 alleging Plaintiff “made false representations of various costs and legal expenses” 24 and “concealed material information.” (Countercl. ¶ 9.) Some of the alleged false 25 representations include, among others, Plaintiff’s representations that Defendant was 26 “a bad witness for herself” and “exaggerating her injuries,” and that Defendant’s 27 “$19,000 lost wages were not recoverable.” (Id.) Defendant asserts four causes of 28 action against Plaintiff in her counterclaim, including professional negligence and –2– 14cv1930 1 fraud. 2 In moving for leave to file an amended answer, amended counterclaim, and 3 cross-claims, Defendant seeks to add attorneys Kenneth M. Sigelman and John 4 Machado, who are or were associated with Plaintiff, as “necessary parties.” She also 5 seeks leave to add an additional affirmative defense through the amended answer and 6 several additional causes of action through the amended counterclaim. Plaintiff filed 7 an opposition to the motion, but Defendant did not file a reply in support of her 8 motion. 9 10 II. LEGAL STANDARD 11 Rule 15(a) of the Federal Rules of Civil Procedure provides that after a 12 responsive pleading has been served, a party may amend its complaint only with the 13 opposing party’s written consent or the court’s leave. Fed. R. Civ. P. 15(a). “The 14 court should freely give leave when justice so requires,” and apply this policy with 15 “extreme liberality.” Id.; DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th 16 Cir. 1987). However, leave to amend is not to be granted automatically. Zivkovic v. 17 S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Jackson v. Bank of 18 Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)). Granting leave to amend rests in the 19 sound discretion of the district court. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 20 1331 (9th Cir. 1996). 21 The Court considers five factors in assessing a motion for leave to amend: (1) 22 bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of the 23 amendment, and (5) whether the plaintiff has previously amended the complaint. 24 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); see also Foman v. Davis, 25 371 U.S. 178, 182 (1962). The party opposing amendment bears the burden of 26 showing any of the factors above. See DCD Programs, 833 F.2d at 186. Of these 27 factors, prejudice to the opposing party carries the greatest weight. Eminence 28 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). However, absent –3– 14cv1930 1 prejudice, a strong showing of the other factors may support denying leave to amend. 2 See id. 3 After a scheduling order has been issued setting a deadline to amend the 4 pleadings, and a party moves to amend the pleadings after the deadline, the motion 5 amounts to one to amend the scheduling order and thus is properly brought under 6 Rule 16(b) of the Federal Rules of Civil Procedure rather than Rule 15. See Johnson 7 v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Under Rule 8 16(b), a scheduling order “may be modified only for good cause and with the judge’s 9 consent.” Fed. R. Civ. P. 16(b)(4). The decision to modify a scheduling order is 10 within the broad discretion of the district court. Johnson, 975 F.2d at 607 (citation 11 omitted). If good cause is shown, the court proceeds to consider the requirements of 12 Rule 15(a). Id. at 608 (citing approvingly Forstmann v. Culp, 114 F.R.D. 83, 85 13 (M.D.N.C. 1987), for its explication of this order of operations); see also C.F. v. 14 Capistrano Unified Sch. Dist., 656 F. Supp. 2d 1190, 1192 (C.D. Cal. 2009). 15 16 III. DISCUSSION 17 Under the good-cause standard of Rule 16(b)(4), the court’s primary focus is 18 on the movant’s diligence in seeking the amendment. Johnson, 975 F.2d at 609. 19 “Good cause” exists if a party can demonstrate that the scheduling order could not or 20 “cannot reasonably be met despite the diligence of the party seeking the extension.” 21 Id. (citation omitted). “[C]arelessness is not compatible with a finding of diligence 22 and offers no reason for a grant of relief.” Id. “Although the existence or degree of 23 prejudice to the party opposing the modification might supply additional reasons to 24 deny a motion, the focus of the [Rule 16] inquiry is upon the moving party’s reasons 25 for seeking modification.” Id. (citations omitted). The party seeking to continue or 26 extend the deadlines bears the burden of demonstrating good cause. See Zivkovic v. 27 S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 975 F.2d at 608- 28 09. –4– 14cv1930 In addressing the diligence requirement, one district court in the Ninth Circuit 1 2 noted: 10 [T]o demonstrate diligence under Rule 16’s “good cause” standard, the movant may be required to show the following: (1) that she was diligent in assisting the Court in creating a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that she was diligent in seeking amendment of the Rule 16 order, once it became apparent that she could not comply with the order. 11 Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted). 12 If the district court finds a lack of diligence, “the inquiry should end.” Johnson, 975 13 F.2d at 609. If, however, the movant clears the Rule 16 bar, the Court proceeds to 14 consider the motion under the usual standard of Rule 15. Campion v. Old Republic 15 Home Prot. Co., Inc., 861 F. Supp. 2d 1139, 1150 (S.D. Cal. 2012). 3 4 5 6 7 8 9 16 According to the March 4, 2015 Scheduling Order, the parties had until May 17 1, 2015 to file any motion to join other parties, amend the pleadings, or file additional 18 pleadings. (Scheduling Order ¶ 2.) On April 30, 2015, Defendant filed the amended 19 answer, amended counterclaim, and cross-claim without first obtaining leave of the 20 Court. (ECF No. 23.) The amended response was stricken for untimeliness under 21 Rule 15(a)(1). (ECF No. 29.) Defendant subsequently filed her motion for leave to 22 file the amended answer, amended counterclaim, and cross-claims on May 28, 2015 23 (ECF No. 27), well after the motion-cutoff date from the scheduling order. 24 In her motion, Defendant argues that Plaintiff would not be prejudiced and that 25 Mr. Sigelman and Mr. Machado are necessary parties under Rules 19 and 20. (Def.’s 26 Mot. 3:18–4:18.) Though Defendant does not address good cause or diligence under 27 Rule 16(b) in her motion, the supporting declaration of her current counsel, Bill 28 Clark, provides some explanation of the chain of events leading to the missed filing –5– 14cv1930 1 deadline.1 Mr. Clark explains that he filed the amended response “by mistake 2 because of a clerical and transcription error” with the mistaken understanding that 3 the scheduling order “had already granted [him] authority to file these Pleadings and 4 that no other authorization was required.” (Clark Decl. ¶¶ 3–7.) Mr. Clark asserts 5 that he acted in good faith, and admirably admits that he was “was clearly wrong.” 6 (Id. ¶¶ 10–11.) 7 To begin, a court may deny as untimely a motion for leave to amend after a 8 scheduling order deadline has passed, simply because the party seeking an extension 9 of time did not request a modification of the scheduling order as well. See Johnson, 10 975 F.2d at 608. Given that Defendant failed to move to amend the scheduling order, 11 that would be adequate grounds to deny Defendant’s request for leave to amend. See 12 id. 13 Considering the circumstances that led to the missed filing deadline, there 14 certainly is ample support to conclude Defendant’s counsel was careless. Mr. Clark 15 uses words such as “mistake,” “missed,” and “forgot” when explaining the 16 circumstances leading to the missed filing deadline. (Clark Decl. ¶¶ 3, 6, 10–11.) 17 Discussing the mistake in further detail, Mr. Clark describes a “clerical and 18 transcription error” when he recorded the scheduling-order deadline as “DEADLINE 19 for filing all pleadings is May 1, 2015.” (Id. ¶ 4.) The portion of the scheduling order 20 that Defendant’s counsel incorrectly transcribed reads as follows: “Any motion to 21 join other parties, to amend the pleadings, or to file additional pleadings shall be filed 22 on or before May 1, 2015.” (Scheduling Order ¶ 2 (emphasis in original).) The 23 scheduling order’s language is clear that “any motion . . . to amend the pleadings” is 24 what the deadline is for. (See id. (emphasis added).) Mr. Clark’s mistake may be 25 simple in nature, but it is ultimately one that could be described as deriving from 26 carelessness. However, it is this Court’s belief that the mistake derives more 27 1 28 Defendant chose not to file a reply in support of her motion, which presumably would have been an opportune time to address good cause and diligence under Rule 16(b). –6– 14cv1930 1 accurately from incompetence, as opposed to lack of diligence. 2 Misreading or incorrectly transcribing a provision of the scheduling order is 3 not the only factor indicating incompetence. Rule 15(a) permits amendment of 4 pleadings as a matter of course in limited circumstances. “A party may amend its 5 pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the 6 pleading is one to which a responsive pleading is required, 21 days after service of a 7 responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), 8 whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend 9 its pleading only with the opposing party’s written consent or the court’s leave.” Fed. 10 R. Civ. P. 15(a)(2). 11 Defendant first attempted to file her amended answer, amended counterclaim, 12 and cross-claim on April 28, 2015. The entries on the docket immediately preceding 13 this first attempt are two court orders, one of which is the scheduling order, dated 14 March 4, 2015. (ECF Nos. 18, 19.) And the filing she now seeks to amend was filed 15 on August 22, 2014. (ECF No. 2.) In other words, under Rule 15(a), Defendant did 16 not have the right as a matter of procedure to file the amended pleading at the time 17 she first attempted to file it. See Fed. R. Civ. P. 15(a). As a litigant before this Court, 18 Defendant and her counsel are expected to know and follow the Federal Rules of 19 Civil Procedure. See Standing Order for Civil Cases. But Mr. Clark failed to do so. 20 He failed to recognize that Defendant lacked the procedural right to file an amended 21 pleading at the time without leave of the Court even though he should have been 22 aware of the limitations of Rule 15(a)(1)’s right to amend as a matter of course. 23 With great reservations, the Court finds good cause under Rule 16(b). 24 Defendant describes a diligent effort to follow the scheduling order; her counsel just 25 failed to competently follow through. 26 Moving on to the Rule 15(a) factors, Plaintiff focuses on the fact that 27 Defendant fails to justify why she failed to previously add the “necessary parties” 28 while also arguing that permitting amendment will significantly delay this case and –7– 14cv1930 1 prejudice Plaintiff. (Pl.’s Opp’n 7:23-8:20.) As the party opposing amendment, 2 Plaintiff bears the burden of demonstrating that the Rule 15(a) factors weigh in her 3 favor. See DCD Programs, 833 F.2d at 186. Given Rule 15(a)’s policy to “freely 4 give leave when just so requires” with “extreme liberality,” the Court, in its 5 discretion, finds that Plaintiff fails to carry her burden under Rule 15(a). See 6 Pisciotta, 91 F.3d at 1331. 7 8 IV. CONCLUSION & ORDER 9 The Court cannot impress upon Defendant’s counsel enough the importance 10 and necessity to familiarize himself with not only the Federal Rules of Civil 11 Procedure, but also this district’s Civil Local Rules and Electronic Case Filing 12 Administrative Policies & Procedures Manual in addition to this Court’s Standing 13 Order for Civil Cases. Excluding the Federal Rules of Civil Procedure, all of the 14 aforementioned rules and procedures are available on this district’s website. 15 However, in its discretion, the Court GRANTS Defendant’s motion for leave 16 to file an amended answer, amended counterclaim, and cross-claims. (ECF No. 30.) 17 Defendant must file the amended answer, amended counterclaim, and cross-claims 18 on the docket no later than October 20, 2015. 19 IT IS SO ORDERED. 20 21 DATED: October 16, 2015 22 23 24 25 26 27 28 –8– 14cv1930
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