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Because oral argument will not be of material 1

assistance, the court orders the matter submitted on the briefs. 

E.D. Cal. L. R. 78-230(h).

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

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IMPRIMIS INTERNATIONAL, INC.,

Plaintiff,

v. NO. CIV. S-04-1297 FCD DAD

MEMORANDUM AND ORDER

ROBERT B. FRAIDENBURGH, 

Defendants.

___________________________/

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This matter is before the court on defendant Robert B.

Fraidenburgh’s (“Fraidenburgh”) motion to amend the pretrial

scheduling order and defendant’s answer. Plaintiff Imprimis

International, Inc. (“Imprimis”) opposes the motion. For the

reasons set forth below, defendant’s motion is GRANTED. 1

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BACKGROUND

This case arises out of a contingency fee agreement between

plaintiff Imprimis and defendant Fraidenburgh, wherein Imprimis

would be paid with federal funds for assisting Fraidenburgh in

obtaining federal funds for the development of a material that

would be used in naval defense systems. (Decl. of Shawn M. Krogh

in Supp. of Mot. to Amend (“Krogh Decl.”), filed Dec. 12, 2005, ¶

4). Plaintiff filed suit for breach of contract in the United

States District Court for the Eastern District of Virginia. (Id.

¶ 7). On defendant’s motion, the case was transferred to this

court. (Id. ¶ 10). 

On November 30, 2004, a pretrial scheduling order was

entered in this court. The scheduling order provides that “[n]o

further joinder of parties or amendments to pleadings is

permitted without leave of court, good cause having been shown.” 

(Pretrial Scheduling Order, Nov. 30, 2004, Docket No. 11 (citing

Rule 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604

(9th Cir. 1992)). Throughout the course of litigation, the

parties stipulated to modify the pre-trial scheduling order

twice. (Id. ¶ 16). As a result of the modifications, the

discovery deadline was October 31, 2005. (Id.) 

On October 31, 2005, defendant deposed Ben Hord (“Hord”),

the principal owner of Imprimis. (Id. ¶ 17). During the

deposition, defendant discovered that Imprimis changed its theory

for recovering under the agreement and that facts disclosed by

Hord implicated additional available defenses. (Id. ¶ 18). 

Specifically, defendant states that he learned that Imprimis and

Fraidenburgh modified the contract during the contractual

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relationship and that Imprimis knew that the funds to be paid to

it were to be paid out of federal funds received by defendant. 

(Id.) Defendant states that none of this information was

divulged prior to the deposition of Hord. (Id. ¶ 19). 

As a result of the information learned in the deposition,

defendant sought to amend his answer to conform to the newly

discovered evidence and theories and to add affirmative defenses. 

(Id. ¶ 20). On November 17, 2005, defendant requested that

Imprimis stipulate to defendant’s filing of an Amended Answer. 

(Id. ¶ 22). On December 5, 2005, defendant received a facsimile

from plaintiff indicating that it would not stipulate to the

filing. (Id. ¶ 23). 

On December 12, 2005, defendant filed a motion to amend the

pretrial scheduling order. Specifically, defendant seeks to

include affirmative defenses such as “unclean hands,” “illegal

contractual penalty provision,” “recission by mutual consent,”

and “lack of consideration.” (Id. 20).

STANDARD 

Once the court has entered a pretrial scheduling order

pursuant to Rule 16, the standards of Rule 16 rather than Rule 15

govern amendment of the pleadings. See Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Orders

entered before the final pretrial conference may be modified only

“upon a showing of good cause.” Fed. R. Civ. P. 16(b). The good

cause requirement of Rule 16 primarily considers the diligence of

the party seeking the amendment. The pretrial scheduling order

can only be modified “if it cannot reasonably be met despite the

diligence of the party seeking the extension.” Mammoth

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Recreations, 975 F.2d at 609. 

When evaluating whether a party was diligent, the Ninth

Circuit has determined that “the focus of the inquiry is upon the

moving party’s reasons for modification. If that party was not

diligent, the inquiry should end.” Id. at 610; see also

Gestetner, 108 F.R.D. at 141. When the proposed modification is

an amendment to the pleadings, the moving party may establish

good cause by showing “(1) that [he or she] was diligent in

assisting the court in creating a workable Rule 16 order; (2)

that [his or her] noncompliance with a rule 16 deadline occurred

or will occur, notwithstanding [his or 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 [he or she] was

diligent in seeking amendment of the Rule 16 order, once it

became apparent that [he or she] could not comply with the

order.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D.

Cal. 1999)(citations omitted). 

Only after the moving party has demonstrated diligence under

Rule 16 does the court apply the standard under Rule 15 to

determine whether the amendment was proper. See Mammoth

Recreations, 975 F.2d at 608; Eckert Cold Storage, 943 F. Supp.

at 1232 n.3. Pursuant to Rule 15(a), “leave [to amend] is to be

freely given when justice so requires.” “[L]eave to amend should

be granted unless amendment would cause prejudice to the opposing

party, is sought in bad faith, is futile, or creates undue

delay.” Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir.

1997).

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ANALYSIS

Defendant has demonstrated good cause for amending the

pretrial scheduling order to file an amended answer. Defendant

presents evidence that he worked with plaintiff’s counsel

throughout the course of litigation in preparing joint status

reports and stipulating to extend discovery deadlines. (Krogh

Decl. ¶¶ 12, 16; Supplemental Decl. of Shawn M. Krogh in Supp. of

Mot. to Amend (“Suppl. Krogh Decl.”), filed Jan. 19, 2005, ¶ 7). 

Plaintiff does not dispute that defendant was diligent in

assisting the court in creating a workable Rule 16 order.

Further, defendant has demonstrated that he seeks amendment

based upon the development of matters which could not have been

reasonably foreseen or anticipated at the time of the Rule 16

scheduling conference. Defendant asserts that he was not aware

of the change in plaintiff’s theory of the case or of facts

giving rise to additional affirmative defenses until the

deposition of Hord on October 31, 2005. Plaintiff disputes this

assertion and states that Hord produced no new information during

the deposition that was not available through discovery or

through plaintiff’s deposition. (Pl.’s Opp’n to Def.’s Mot. to

Amend, filed Jan. 13, 2006, ¶ 4). However, plaintiff has

proffered no specific evidence to support this blanket assertion. 

Finally, defendant has shown diligence in filing his motion

to amend the pretrial scheduling order. Within three weeks of

Hord’s deposition, defendant submitted an amended answer to

plaintiff and sought a stipulation in this matter. A week after

plaintiff refused to stipulate, defendant filed this motion to

amend the complaint. 

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Plaintiff does not contend that allowing the defendant 2

to amend his answer would prejudice the plaintiff or cause undue

delay. 

A summary review of plaintiff’s deposition however does 3

not reveal a bad faith failure to respond to questions. 

6

Plaintiff contends that defendant should not be allowed to

amend his answer because he has proceeded in bad faith. In 2

support of this argument, plaintiff points generally to

defendant’s deposition and defendant’s failure to answer

questions. However, even if defendant’s deposition reflects a

failure to answer questions, this does not demonstrate 3

defendant’s bad faith in bringing this motion to amend his

answer. Rather, defendant presents evidence that he brings the

motion to conform his answer to newly discovered evidence and

theories. (Krogh Decl. ¶ 19). Therefore, because there is no

indication of defendant’s bad faith in bringing this motion to

amend, leave to amend is GRANTED. 

CONCLUSION

For the reasons stated herein, defendant’s motion to amend

the pretrial scheduling order and his answer is GRANTED. 

Defendant is granted fifteen (15) days from the date of this

order to file an amended answer in accordance with this order. 

IT IS SO ORDERED.

DATED: January 27, 2006.

 /s/Frank C. Damrell, Jr. 

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

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