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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

William R Donges, et al., 

Plaintiffs, 

v. 

USAA Federal Savings Bank, 

Defendant. 

No. CV-18-00093-TUC-RM

ORDER 

Pending before the Court is Plaintiffs William and Carolyn Donges’ Motion to 

Amend Complaint. (Doc. 78.)1

 For the following reasons, Plaintiffs’ request for leave to 

amend will be denied. 

I. Background 

On April 23, 2018, the Court issued a Scheduling Order setting a deadline of May 

18, 2018, to amend pleadings. (Doc. 32 at 1.) On May 18, 2018, Plaintiffs requested and 

were granted leave to file the operative First Amended Complaint. (Docs. 33, 34, 35.) 

On August 2, 2018, the parties jointly requested an extension of the deadline to 

complete discovery, which the Court granted. (Docs. 39, 40.) The parties did not request 

an extension of the already-expired amendment deadline. (See Doc. 39.) 

Briefing on the parties’ summary judgment motions was completed on January 25, 

2019. (Docs. 76, 77.) Plaintiffs filed their Motion to Amend Complaint on February 5, 

 1

 Also pending are Plaintiffs’ Motion for Partial Summary Judgment and Defendant USAA Federal Savings Bank’s Motion for Summary Judgment, both of which are fully briefed. (Docs. 54, 64, 69, 71, 76, 77.) The summary judgment motions will be resolved in a separate order. 
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2019. (Doc. 78.) They seek to add two new claims. (See id.) 

II. Standard of Review 

Plaintiffs’ motion was filed more than eight months after the May 18, 2018 

amendment deadline. Accordingly, their motion is properly examined first under Federal 

Rule of Civil Procedure 16(b)(4) as a motion to amend the Scheduling Order. Coleman v. 

Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (citing Johnson v. Mammoth 

Recreations, Inc., 975 F.2d 604, 607–09 (9th Cir. 1992)). Rule 16(b)(4) provides that a 

scheduling order “may be modified only for good cause and with the judge’s consent.” 

“This standard ‘primarily considers the diligence of the party seeking the amendment.’” 

Coleman, 232 F.3d at 1294 (quoting Johnson, 975 F.2d at 609). If the moving party “was 

not diligent, the inquiry should end.” Johnson, 975 F.2d at 609; see Wong v. Regents of 

Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005) (“Parties must understand that they will 

pay a price for failure to comply strictly with scheduling and other orders . . . .”). 

If the party seeking to amend shows good cause under Rule 16(b)(4), he or she must 

then show that the amendment would be proper under the liberal requirements of Rule 

15(a). Johnson, 975 F.2d at 608 (citing Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 

1987)). The district court has discretion in determining whether to grant or deny leave to 

amend, Foman v. Davis, 371 U.S. 178, 182 (1962), but leave should freely be given “when 

justice so requires,” Fed. R. Civ. P. 15(a)(2). In determining whether to grant leave to 

amend under Rule 15(a), the Court considers whether there has been “‘undue delay, bad 

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

amendments previously allowed, undue prejudice to the opposing party by virtue of 

allowance of the amendment, futility of amendment, etc.’” Eminence Capital, LLC v. 

Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam) (quoting Foman, 371 U.S. 

at 182). 

III. Discussion 

Plaintiffs have not shown good cause under Rule 16(b)(4) for allowing their 
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untimely motion.2 Two circumstances show that they were not diligent. First, they 

concede that they have been in possession of the evidence on which the proposed 

amendment is based at least since the end of discovery, on September 21, 2019.3

 Thus, all 

the facts necessary for Plaintiffs to bring their proposed claims were in their possession 

months before they made their request (and probably before they filed this lawsuit). 

Second, Plaintiffs claim they only became aware of the legal significance of such evidence 

while preparing their response to Defendant’s Motion for Summary Judgment. The 

response was filed on January 10, 2019. Even assuming it was reasonable for Plaintiffs to 

identify their proposed claims so long after discovery, they still waited approximately one 

month to file their motion. 

Because Plaintiffs were not diligent, they cannot show good cause under Rule 

16(b)(4). Johnson, 975 F.2d at 609. The Court therefore declines to amend the Scheduling 

Order and will deny Plaintiffs’ Motion to Amend Complaint as untimely. 

Furthermore, the Court finds that the Foman factors weigh against granting 

Plaintiffs leave to amend. The parties’ summary judgment motions are fully briefed. If 

Plaintiffs were granted leave to add new claims, Defendant would be entitled to time to file 

an answer, to conduct discovery, and to file another summary judgment motion on those 

claims. Thus, the amendment would clearly result in undue delay. Furthermore, the 

necessity of reopening discovery on Plaintiff’s new claims would prejudice Defendant.4

 

See Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999) (“A 

need to reopen discovery and therefore delay the proceedings supports a district court’s 

finding of prejudice from a delayed motion to amend the complaint.” (citing Solomon v. N. 

Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir. 1998))). 

 2

 Neither party addresses Rule 16(b)(4)’s good-cause requirement. 3

 As Defendant points out, Plaintiffs probably had the evidence in their possession in October 2017. 4

 Plaintiffs assert that additional discovery is unnecessary because they have all the facts they need to prevail on their proposed additional claims. Defendant asserts that it would likely need to depose both Plaintiffs again. It is not unreasonable to believe that Defendant may have additional, material questions relevant to Plaintiffs’ proposed claims that went unasked because they appeared irrelevant to Plaintiffs’ operative pleading. The Court thus finds that additional discovery would be required if Plaintiffs were granted leave to amend. 
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Therefore, Plaintiffs’ Motion to Amend Complaint also fails under Rule 15. 

IT IS ORDERED that Plaintiffs’ Motion to Amend Complaint (Doc. 78) is denied. 

Dated this 10th day of April, 2019.