United States District Court, D. Nevada
SERENA J. GOODMAN, Plaintiff,
M&T BANK, NATIONAL ASSOCIATION; and EXPERIAN INFORMATION SOLUTIONS, INC., Defendants.
ORDER (1) DENYING MOTION TO AMEND COMPLAINT; AND (2)
DENYING MOTION TO FILE SUPPLEMENTAL AUTHORITY (ECF NOS. 45,
P. GORDON UNITED STATES DISTRICT JUDGE
Serena Goodman sued multiple parties based on alleged issues
with her credit reports following a bankruptcy discharge.
Only two defendants remain, and Goodman seeks to amend her
complaint primarily to add two new class action claims under
the Fair Credit Reporting Act. The defendants oppose the
motion, arguing that Goodman has not demonstrated good cause
to amend after the scheduled deadline for doing so. Because I
find that Goodman was not diligent in seeking amendment, I
deny her motion to amend the complaint. Goodman's motion
to file supplemental authority to support her motion is
denied as moot.
filed her complaint on July 28, 2016. ECF No. 1. A scheduling
order was entered on October 5, 2016 setting the deadline to
amend pleadings as December 5, 2016. ECF No. 17. The parties
stipulated to extend the time for discovery on December 22,
2016 and March 23, 2017, but did not request or stipulate to
extend the deadline to amend pleadings. ECF Nos. 27, 35.
discovery, on November 22, 2016 Experian produced
Goodman's consumer disclosures from before and after
litigation began. ECF Nos. 45 at 7; 47 at 8. Experian
produced confidential discovery materials on February 9,
2017. ECF No. 45 at 7. This production included a report that
allegedly lists credit inquiries that had not been included
on the previously produced consumer disclosures. Id.
at 8. It appears that this discrepancy forms the basis of the
plaintiffs motion to amend.
deposed Experian's designated witness on March 3, 2017.
ECF Nos. 45 at 8; 47 at 4. Experian verified the transcript
of this deposition on April 18, 2017. ECF No. 45 at 11.
Experian deposed Goodman on either on March 15 or March 20,
2017 (the parties can't agree on the date).
Compare ECF No. 45 at 9, with ECF No. 47 at
4. Goodman requested additional discovery based on these
depositions; Experian refused to produce any additional
documents on May 15, 2017. ECF No. 45 at 11. Goodman filed
the motion to amend on May 19, 2017. ECF No. 45.
motion to amend is generally considered under Federal Rule of
Civil Procedure 15. But where a scheduling order has been
entered, Rule 16 controls. Coleman v. Quaker Oats
Co., 232 F.3d 1271, 1294 (9th Cir. 2000). "Where a
party moves to amend the pleadings after a deadline set in
the Rule 16 scheduling order, the Court should not modify the
scheduling order except upon a showing of good cause."
Crockett & Myers, Ltd. v. Napier, Fitzgerald &
Kirby, LLP, 430 F.Supp.2d 1157, 1163 (D. Nev. 2006).
This standard "primarily considers the diligence of the
party seeking the amendment." Coleman, 232 F.3d
at 1294. If the moving party "was not diligent, the
inquiry should end." Johnson v. Mammoth Recreations,
Inc., 975, F.2d 604, 609 (9th Cir. 1992).
Schwerdt v. International Fidelity Insurance
Company, 28 Fed.Appx. 715 (9th Cir. 2002), the court
held that the party seeking amendment had not been diligent
when it waited one month after learning the basis for seeking
to amend his complaint to inform the defendant of this
intention, and another seven weeks to file his motion.
Id. at 719. Multiple "[c]ourts have held that
waiting two months after discovering new facts to bring a
motion to amend does not constitute diligence under Rule
16." Sako v. Wells Fargo Bank, Nat'l Assoc,
No. 14cvl034-GPC(JMA), 2015 WL 5022326, at *2 (S.D. Cal. Aug.
basis for Goodman's motion to amend appears to be the
information gleaned from a report produced as part of
Experian's February 9, 2017 production. Even crediting
Goodman's argument that she had to wait for her own
deposition to understand how this report formed the basis of
a new claim, that deposition occurred by March 20, 2017.
Goodman filed her motion on May 19, 2017, nearly nine weeks
after allegedly discovering the basis for amendment.
argues she was waiting for Experian to review and verify its
deposition testimony and because Experian refused to produce
documents related to this possible new cause of action.
Neither of these allegations changes the fact that Goodman
had the necessary documents to be aware of her cause of
action on February 9, was able to question Experian about
these documents on March 3, and gave "Experian ... a
full and fair opportunity to explore [these] issues itself at
her deposition. ECF No. 47 at 5. Goodman has not explained
what information learned in the verified deposition
transcript, let alone her own deposition, added to her
understanding of the facts forming the basis of the proposed
new claims. Therefore, Goodman was not diligent in filing her
motion for leave to amend her complaint, and I deny the
motion to amend. Goodman's motion to file supplemental
authority in support of the motion to amend is denied as
THEREFORE ORDERED that Goodman's motion to amend (ECF No.
45) is DENIED.
FURTHER ORDERED that Goodman's motion to file