United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Waste Action
Project's (“WAP”) motion for leave to amend.
Dkt. 41. The Court has considered the pleadings filed in
support of and in opposition to the motion and the remainder
of the file and hereby denies the motion for the reasons
12, 2017, WAP filed a citizen suit under section 505 of the
Clean Water Act as amended, 33 U.S.C. § 1365a, against
Defendant Port of Olympia (“Port”). Dkt. 1. WAP
alleged that the Port had “discharged stormwater
containing levels of pollutants that exceed the benchmark
values established by” the relevant permits.
Id. ¶ 21.
October 23, 2017, WAP sent the Port a notice letter informing
the Port of alleged “illicit discharges of grain dust
and process wastewater from dust control operations . . .
.” Dkt. 41-1, ¶ 34.
Court has granted numerous stipulated extensions of various
deadlines based on assertions that the parties were actively
discussing settlement. See, e.g., Dkt. 28. However,
on September 26, 2018, the Court issued a new scheduling
order setting the date for amended pleadings as November 6,
2018. Dkt. 38.
April 18, 2019, WAP filed the instant motion for leave to
amend the complaint to add claims regarding the alleged
illicit discharges of dust. Dkt. 41. On April 29, 2019, the
Port responded. Dkt. 44. On May 3, 2019, WAP replied. Dkt.
47. On May 7, 2019, the Port filed a surreply requesting that
the Court strike WAP's reference to the reason for the
breakdown in settlement negotiations. Dkt. 50.
the deadline to amend pleadings has passed, the moving party
must establish “good cause” to amend. Johnson
v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th
Cir. 1992). “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.” Id. “If [the moving] party
was not diligent, the inquiry should end.” Branch
Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751,
764 (9th Cir. 2017) (quoting Johnson, 975 F.2d at
case, WAP has failed to establish diligence, thus ending the
inquiry. First, WAP's arguments regarding any prejudice
the Port may suffer are irrelevant. Dkt. 47 at 1-3. Second,
WAP's diligence arguments are without merit. WAP argues
that the parties could not settle “this case”
without a further action by the Washington Department of
Ecology, which has not occurred. Id. at 4. While
waiting for an administrative action is certainly an excuse
for being unable to prosecute this case, WAP's
proposed claims are not in this case, and WAP
provides no explanation for why the proposed claims could not
have been added earlier despite the administrative
also argues that settlement discussions did not fully
dissolve until March 28, 2019. Dkt. 47 at 4. WAP provides no
explanation for why it could not add claims to its complaint
that were presented to the Port in its notice letter while
settlement negotiations were ongoing. It is entirely possible
that WAP intended to settle the current claims and then
immediately file a new complaint based on the dust claims.
Thus, settlement negotiations regarding current claims is no
excuse for failure to add noticed claims.
WAP argues that “[c]ourts have found plaintiffs
demonstrated diligence despite longer delays than that
presented here.” Dkt 47 at 4. While true, that is an
insufficient excuse for essentially doing nothing
procedurally with respect to the noticed claims. If anything,
WAP could have included in one of the parties' stipulated
motions for an extension that its failure to act on the
noticed claims was not a lack of diligence but a deliberate
decision to save the Court's and the parties'
resources. Moreover, it is unclear whether the Port would
have even objected to a timely motion to amend. The Court is
aware of the judicial inefficiencies involved with WAP filing
a new complaint that could be consolidated with this action,
but binding precedent requires a finding of diligence, which
is completely lacking here.
it is hereby ORDERED that WAP's motion
for leave ...