United States District Court, D. Nevada
ORDER ON SECOND MOTION FOR LEAVE TO AMEND (ECF NO.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT COURT
the Court comes Plaintiff Proficio Mortgage Ventures, LLC
(“Plaintiff”)'s Second Motion for Leave to
Amend/Correct Complaint. (ECF No. 133). For the reasons
discussed below, the motion is DENIED.
filed its Complaint against Defendant The Federal Savings
Bank (“Defendant”) on March 20, 2015. (ECF No.
1). An Amended Complaint was filed on March 17, 2016. (ECF
No. 51). In the Complaint, Plaintiff alleges the following
claims: 1) misappropriation of trade secrets pursuant to
Nevada Revised Statute (“NRS”) § 600A.010 et
seq.; 2) unfair trade practices pursuant to NRS §
603.040; 3) infringement of trade secrets pursuant to NRS
§ 603.050; 4) intentional interference with prospective
economic advantage; 5) and unjust enrichment. Plaintiff seeks
both monetary and injunctive relief.
11, 2016, Plaintiff filed a Second Motion for Leave to
Amend/Correct the Amended Complaint, seeking leave to add
allege punitive damages for Counts 1, 2, 3 and 4. (ECF No.
67). Magistrate Judge Cam Ferenbach heard argument on the
motion on August 16, 2016, and denied the motion. (ECF No.
78). Plaintiff filed a Motion to Reconsider the Magistrate
Judge's ruling on October 30, 2016. (ECF No. 79). On
August 11, 2017, the Court held a hearing on the motion to
reconsider, as well as the parties' partial motions for
summary judgment. (ECF No. 111). The Court denied the motion
to reconsider on the record. Following the hearing, the Court
consolidated a related matter into the case, and reopened
discovery on the issues pertaining to the consolidated
case. A Scheduling Order was entered by the
Magistrate Judge in relation to the consolidated case on
August 24, 2017, giving the signing parties until October 26,
2017 to amend the pleadings. (ECF No. 117). Plaintiff filed
the instant motion on September 26, 2017. (ECF No.
133). Defendant filed a Response on October 5,
2017. (ECF No. 136). On October 12, 2017, Plaintiff filed a
Reply. (ECF No. 137).
Rule of Civil Procedure 15(a) instructs that courts should
“freely” grant a party leave to amend “when
justice so requires.” However, once a scheduling order
has been entered pursuant to Federal Rule of Civil Procedure
Rule 16, the district court is to first apply the standards
of Rule 16 rather than those of Rule 15. Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th
Cir. 1992); see also Coleman v. Quaker Oats Co., 232
F.3d 1271, 1294 (9th Cir. 2000) (“[T]he district court
correctly found that it should address the issue under [Rule]
16 because it had filed a pretrial scheduling order that
established a timetable for amending the pleadings, and the
deadline had expired . . . .”). The “good
cause” standard of Rule 16 “primarily considers
the diligence of the party seeking the amendment, ” and
a party's “carelessness is not compatible with a
finding of diligence and offers no reason for a grant of
relief.” In re W. States Wholesale Nat. Gas
Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013)
(quoting Johnson, 975 F.2d at 609).
argues that leave to amend the Complaint should be granted
because the facts and circumstances noted in the prior motion
for leave to amend have changed, given the Court's
reopening of discovery in light of the consolidated case. As
the Scheduling Order was modified to extend discovery,
Plaintiff contends that a diligence inquiry is not warranted.
Plaintiff also argues that Defendant faces no prejudice from
amendment, as the extended discovery period allowed Defendant
to address any issues with respect to punitive damages.
Plaintiff additionally re-asserts arguments made in previous
motions, including that the conduct discovered during
litigation merits an award of punitive damages. In response,
Defendant argues that the deadline for amending the pleadings
was September 18, 2015, and that Plaintiff nonetheless was
given leave to file its First Amended Complaint on March 17,
2016, in which Plaintiff did not plead punitive damages.
Defendant contends that there is no good cause for
Plaintiff's delay in seeking to assert punitive damages.
Court finds that Plaintiff fails to satisfy the good cause
standard of Rule 16, for the same reasons as articulated on
the record during the August 11, 2017 hearing. The Court
affirmed the Magistrate Judge's denial of Plaintiff's
prior motion for leave to amend, finding that no clear error
was committed. The operative Amended Complaint does not
provide sufficient notice to Defendant that Plaintiff seeks
punitive damages, and Plaintiff's acknowledgment in the
instant motion that “a demand of punitive damages is
dependent upon the existing facts and theories in the
case” demonstrates that Plaintiff failed to act with
diligence in amending the Complaint to plead punitive damages
before the deadline for amendment passed. The Court does not
find that the “facts and circumstances” have
changed between the earlier request for leave to plead
punitive damages and the filing of the instant motion, such
that Plaintiff is now entitled to relief. Therefore, the
motion for leave to amend is denied.
IT IS ORDERED that Plaintiff's Second
Motion for Leave to Amend to Plead Punitive Damages (ECF No.
133) is DENIED.
IS FURTHER ORDERED that Defendant's Motion to
Dismiss Count II of North American Marketing, Inc.'s
First Amended Complaint (ECF No. 127) is DENIED AS MOOT.
IS FURTHER ORDERED that Plaintiff's Motion to
Amend / Correct  ...