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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LIL’ MAN IN THE BOAT, INC.,

Plaintiff,

v.

CITY AND COUNTY OF SAN 

FRANCISCO, et al.,

Defendants.

Case No. 17-cv-00904-JST 

ORDER DENYING MOTION FOR 

LEAVE TO FILE A SECOND 

AMENDED COMPLAINT

Re: ECF Nos. 79, 80, 81

Before the Court is Plaintiff Lil’ Man in the Boat, Inc.’s motion for leave to file a second 

amended complaint. ECF No. 79. Defendants City and County of San Francisco, San Francisco 

Port Commission, Elaine Forbes, Peter Dailey, Jeff Bauer, and Joe Monroe oppose the motion. 

ECF No. 80. The Court will deny the motion.

I. BACKGROUND

Lil’ Man operates a charter vessel out of South Beach Harbor. ECF No. 33 ¶ 1. South 

Beach Harbor is a “full service marina” on the San Francisco Bay, operated by the San Francisco 

Port Commission. ECF No. 54 at 2. The harbor has two “guest docks” relevant to this litigation, 

known as the North Dock and the South Dock. Id.

In 2016, harbormaster Joe Monroe and his staff asked commercial vessels using South 

Beach Harbor to sign a new landing agreement. Id. Lil’ Man refused to sign the agreement. ECF 

No. 50-2 at 5-6. In February 2017, Lil’ Man brought this suit as a putative class action, asserting

four claims under 42 U.S.C. § 1983: violation of the Tonnage Clause of the United States 

Constitution; violation of the First Amendment right to petition; violation of the Commerce 

Clause; and violation of the Rivers and Harbors Act. ECF No. 1. Lil’ Man also asserted claims 

under the Bane Act, which the Court dismissed on Defendants’ motion. ECF No. 29. 
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United States District Court

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Lil’ Man amended its complaint in August 2017. ECF No. 33. On September 6, 2017, the 

parties appeared for a case management conference, and the Court issued a scheduling order 

setting September 15, 2017 as the deadline to amend the pleadings. ECF No. 37. 

On January 11, 2018, the parties filed a stipulated request to allow Lil’ Man to file a 

second amended complaint. ECF No. 38. The Court denied the request the following day because 

the parties provided no explanation of good cause for the failure to comply with the deadline to 

amend the pleadings set forth in the scheduling order. ECF No. 29.

Thereafter, Defendants moved for judgment on the pleadings as to the First Amendment 

claim and the claims for violation of California Business and Professions Code § 23300. ECF No. 

40. The Court granted that motion in September 2018. ECF No. 49. In October 2018, Lil’ Man 

moved for class certification on its remaining claims. ECF No. 50. The Court denied the motion 

for lack of numerosity. ECF No. 66. 

In January 2019, the Court held a further case management conference and set March 15, 

2019 as the deadline to file a motion to amend the pleadings. ECF No. 71. On the day of the

deadline, Lil’ Man moved to file a second amended complaint. ECF No. 79. Defendants oppose 

the motion. ECF No. 80.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 15(a)(2), a “court should freely give leave [to 

amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Court considers five factors in 

deciding a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, 

futility of amendment, and whether the plaintiff has previously amended its complaint. In re W. 

States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013). The rule is “to 

be applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 

(9th Cir. 2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 

2001)). Generally, a court should determine whether to grant leave indulging “all inferences in 

favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999). 

“Courts may decline to grant leave to amend only if there is strong evidence of ‘undue delay, bad 

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by 
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United States District Court

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amendments previously allowed, undue prejudice to the opposing party . . . or futility of 

amendment, etc.’” Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th 

Cir. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

Requests to modify a scheduling order made after the Court has set a deadline for 

amending the pleadings are governed by Federal Rule of Civil Procedure 16. Coleman v. Quaker 

Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). Rule 16 requires “good cause” and the consent of 

the Court to amend a scheduling order. Fed. R. Civ. P. 16(b)(4). This good cause standard

“primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “The pretrial schedule may be modified ‘if it 

cannot reasonably be met despite the diligence of the party seeking the extension.’” Zivkovic v. S. 

Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting Johnson, 975 F.2d at 609). 

III. DISCUSSION

Lil’ Man seeks leave to file a second amended complaint “to add a claim for retaliation 

[under 42 U.S.C. § 1983] arising from facts that arose after the litigation was filed, and after 

Plaintiff was last permitted leave to amend its complaint.” ECF No. 79 at 2. Specifically, Lil’ 

Man alleges that Defendants shut down, then tore down, the North Dock in retaliation for Lil’ 

Man’s filing of this lawsuit. ECF No. 79-3 ¶¶ 75-89. The closure of the North Dock allegedly 

occurred on April 24, 2017; “[t]he North Dock was removed by Defendants entirely in 2018.” Id.

¶ 83. 

As an initial matter, the Court notes that the motion is controlled by Rule 16 of the Federal 

Rules of Civil Procedure, and not Rule 15 as Lil’ Man’s motion suggests. The Court previously 

set September 15, 2017 as the deadline to amend the pleadings, ECF No. 37, and the present 

motion was filed a year-and-a-half after that date. Thus, Lil’ Man must demonstrate good cause 

before the Court will allow amendment. Fed. R. Civ. P. 16(b)(4). Lil’ Man argues that it 

understood the Court’s January 2019 order to have “implicitly modified the prior case 

management order” which set September 15, 2017 as the deadline to amend the pleadings. ECF 

No. 81 at 3. The Court did not intend to, and did not, modify its prior case management order. It 

merely set a deadline for the filing of Plaintiff’s motion. In fact, the Court reminded Plaintiff of 
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the need to show good cause at the January 30, 2019 case management conference. Moreover, in 

January 2018, the Court denied a stipulated request to allow Lil’ Man to file a second amended 

complaint due to the parties’ failure to make the good cause showing required by Rule 16. ECF 

No. 39. The inference Lil’ Man draws from the setting of a motion deadline is not reasonable. 

Lil’ Man next attempts to demonstrate diligence and good cause by separating its 

allegation that Defendants shut down the North Dock from its allegation that they closed the North 

Dock, and focusing the Court on the latter event. Because the argument was made for the first 

time on reply, the Court need not consider it. Ass’n of Irritated Residents v. C & R Vanderham 

Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006) (“The Court does not consider new facts or 

argument made for the first time in a reply brief.”). 

The argument also fails, however, considered on the merits. Plaintiff’s proposed amended 

complaint makes clear that the City’s actions were all part of one alleged course of conduct. See, 

e.g., ECF No. 79-3 ¶ 82 (“Upon information and belief, in response to Plaintiff’s prosecution of 

this litigation, government officials, i.e., Defendants, took adverse retaliatory action against 

Plaintiff by shutting down, and subsequently tearing down the North Dock, thereby precluding 

Plaintiff’s access and use.”). That course of conduct began in April 2017. Waiting until March 

2019 to file a proposed amended complaint does not demonstrate diligence. 

Finally, Lil’ Man asserts that its proposed amendments respond to the Court’s orders 

granting partial judgment on the pleadings, ECF No. 49, and denying Lil Man’s motion for class 

certification, ECF No. 66. ECF No. 79 at 3. These matters do not require amendment of the 

complaint. 

CONCLUSION

For the foregoing reasons, Lil’ Man’s motion for leave to file a second amended complaint 

is denied. 

IT IS SO ORDERED.

Dated: April 19, 2019

______________________________________

JON S. TIGAR

United States District Judge