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Because oral argument will not be of material assistance, 1

the Court orders this matter submitted on the briefing. E.D.

(continued...)

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

ROBERT BARABINO, No. 2:04-cv-2359-MCE-PAN

Plaintiff,

v. MEMORANDUM AND ORDER

DAN GAMEL, INC.; FLEETWOOD

ENTERPRISES, INC., FLEETWOOD

MOTOR HOMES OF PENNSYLVANIA,

INC.,

Defendants.

----oo0oo----

Plaintiff Robert Barabino (“Plaintiff”) concurrently seeks

to amend his Complaint in this matter and to extend the discovery

cut-off currently in effect. As set forth below, both motions

entail modification of the Court’s Pretrial (Status) Scheduling

Order of March 31, 2005 (“Scheduling Order”) and both motions

will be granted.1

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(...continued) 1

Local Rule 78-230(h).

2

BACKGROUND

The Court’s Scheduling Order provides in pertinent part that

no further amendment of pleadings will be permitted “without

leave of court, good cause having been shown”. (March 31, 2005

Scheduling Order, 1:25-26). Additionally, the Scheduling Order

provides that non-expert discovery be completed not later than

November 25, 2005. (Id. at 2:5-6). By subsequent Order filed

December 29, 2005, that deadline was extended to January 31,

2006.

Plaintiff’s attorney now alleges that during the deposition

of her client, which occurred on February 24, 2006 (after the

discovery cut-off, and apparently by stipulation of the parties

to depose Mr. Barabino at that later time), counsel for Defendant

Fleetwood questioned Plaintiff about whether anyone associated

with Co-Defendant Gamel had told him that the recreational

vehicle at issue in this lawsuit had previously been used as a

daily rental. Plaintiff claims he was unaware of this

possibility beforehand. Because his expert believes the wear and

tear associated with such rental could explain the vehicle’s

deficiencies, Plaintiff now wants to pursue additional discovery

associated with such rental. In addition, Plaintiff asks to

amend his Complaint to include additional facts gleaned through

discovery and to assert further claims against Defendant Gamel as

a result of that discovery.

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3

While Defendants appear to claim that Plaintiff should have

discovered any issue pertaining to potential rental of the

vehicle earlier, through agreement of the parties the deposition

of Defendant Gamel has been postponed until April 18, 2006. In

his Reply to the Motion for Extension of Discovery Cut-Off,

Plaintiff limits his request for additional discovery to a

request that Gamel “produce additional documents at its

deposition, limited to the issue of the use of Plaintiff’s RV as

a daily rental or demonstrator unit.” (Reply, 1:22-26). 

Defendants do not assert that Plaintiff was remiss in not

scheduling the Gamel deposition earlier, and make no specific

argument that Plaintiff could have uncovered facts pertaining to

rental of the vehicle by Gamel prior to that time, had counsel

for Defendant Fleetwood not raised the issue at Plaintiff’s own

deposition.

Additionally, in opposing Plaintiff’s request to amend his

Complaint, Defendants focus almost exclusively on the fact that

Plaintiff’s late request will impact their ability to file a

dispositive motion challenging the sufficiency of the Complaint,

since the deadline for filing such motions under the Scheduling

Order falls on the same day the motions presently before the

Court are set. 

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4

While Defendant Fleetwood makes a passing comment that allowing

Plaintiff to add additional facts through an amended complaint

would entail prejudice by precluding Fleetwood from “conducting

discovery on the Amended Complaint” (Opp. to Mot. to Amend

Compl., p. 5), elsewhere in its Opposition Fleetwood appears to

agree with Plaintiff’s assessment that most of the additional

facts were generated through discovery, and Fleetwood makes no

concrete representation that additional discovery on its part

will in fact be necessary. Moreover, for its part, Defendant

Gamel makes no argument for any prejudice whatsoever aside from a

claim mirroring that made by Fleetwood that any new claims would

not be subject to challenge absent modification of the date for

filing dispositive motions. 

In mitigation, should Plaintiff’s request to amend be

granted, Defendant Fleetwood requests that the deadline for

filing dispositive motions be continued approximately thirty days

in order to permit a challenge to the new pleading. Fleetwood

points out that such a continuance would not interfere with the

timely filing of the parties’ Joint Pretrial Statement (due on

June 19, 2006), and would not necessitate a continuance of either

the July 3, 2006 Final Pretrial Conference or the August 30, 2006

trial date. 

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 Unless otherwise stated, all references to “Rule” or 2

“Rules” refer to the Federal Rules of Civil Procedure.

5

STANDARD

Once a district court has filed a pretrial scheduling order

pursuant to Federal Rule of Civil Procedure 16, that Rule’s 2

standards control. Johnson v. Mammoth Recreations, Inc., 975

F.2d 604, 607-08 (9th Cir. 1992). Prior to the final pretrial

conference, a court may modify a status order upon a showing of

“good cause.” See Fed. R. Civ. P. 16(b).

 “Unlike Rule 15(a)’s liberal amendment policy which focuses

on the bad faith of the party seeking to interpose an amendment

and the prejudice to the opposing party, Rule 16(b)’s ‘good

cause’ standard primarily considers the diligence of the party

seeking the amendment.” Johnson, 975 F.2d at 609. In explaining

this standard, the Ninth Circuit has stated that:

[a] district court may modify the pretrial schedule ‘if it

cannot reasonably be met despite the diligence of the party

seeking the extension.’ Moreover, carelessness is not

compatible with a finding of diligence and offers no reason

for granting of relief. Although the existence or degree of

prejudice to the party opposing the modification might

supply additional reasons to deny a motion, the focus of the

inquiry is upon the moving party’s reasons for seeking

modification. If that party was not diligent, the inquiry

should end.

Id. (citations omitted).

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Significantly, neither Defendant believes that Plaintiff’s 3

counsel has acted in bad faith in her handling of this lawsuit. 

(continued...)

6

ANALYSIS

Plaintiff asserts he could not reasonably have discovered

that the recreational vehicle at issue herein may have been used

as a daily rental prior to its sale to him as a “new” vehicle. 

In opposition, Defendants provide no specifics as to what

additional discovery Plaintiff could have done to have discovered

that potential issue earlier. The proposed additional discovery

is minor and can be accommodated within the confines of a

deposition (the person most knowledgeable at Defendant Gamel)

already agreed to by the parties. Under the circumstances,

Plaintiff has demonstrated “good cause” for modifying the

existing discovery cut-off with respect to documents to be

produced at the Gamel deposition.

With respect to amending the Complaint, again the focus must

be on Plaintiff’s diligence in not doing so earlier, although

potential prejudice may also be considered. Johnson, 975 F.2d at

609. Insofar as amending the Complaint to conform with facts

obtained through the discovery process is concerned, the

Declaration of Plaintiff’s counsel, Sharon Kinsey, details how

the press of other business and substantial disruptions at her

office prevented that from being accomplished earlier. The

defense does not take issue with Ms. Kinsey’s explanation in that

regard other than to state generally that her case handling has

been “dilatory”. 

3

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(...continued) 3

(Fleetwood Opp., p. 6, Gamel Opp., 2:13). Fleetwood’s counsel

specifically describes Plaintiff’s counsel as conducting her case

honestly (even if untimely) throughout this litigation.

7

In addition, Plaintiff’s counsel cannot be deemed less than

diligent in failing to anticipate the rental issue for the same

reason that she demonstrated good cause to explore that issue

further in discovery, as enumerated above.

Finally, since the Court will permit an extension of the

deadline for filing dispositive motions to conform with its

permission for filing an amended complaint, Defendants have also

demonstrated no concrete prejudice resulting from the amended

pleading. 

CONCLUSION

Good cause having been shown, the Court’s Scheduling Order

will be modified 1) to permit the immediate filing of Plaintiff’s

proposed First Amended Complaint for Damages as attached to the

Declaration of Sharon L. Kinsey filed in support of Plaintiff’s

Motion to Amend Complaint; and 2) to permit extension of the

deadline for conducting non-expert discovery to include the

production of additional documents, limited to the issue of the

use of Plaintiff’s recreational vehicle as a daily rental or

demonstrator unit, at the deposition of the person most

knowledgeable at Defendant Gamel; and 3) to extend the hearing of

any dispositive motions in this matter to May 15, 2006. 

///

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Subject to these conditions, Plaintiff’s Motion to Amend

Complaint, and his Motion to Extend Discovery Cut-Off, are

accordingly GRANTED. 

IT IS SO ORDERED.

DATED: March 31, 2006

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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