United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION FOR LEAVE TO FILE AMENDED
S. Lasnik United States District Judge.
matter comes before the Court on plaintiff Aklilu
Yohannes's “Motion for Leave to File an Amended
Complaint.” Dkt. #77. For the following reasons,
plaintiffs motion is denied.
2006, defendant Olympic Collection Inc. (“OCI”)
obtained a default judgment against Yohannes in the Snohomish
County District Court in a debt collection case. Dkt. #32 at
¶ 11; Ex. 1, Dkt. #32-2 at 6. After the balance remained
uncollected for a decade, OCI filed a writ of garnishment and
successfully garnished plaintiffs wages. Ex. 1, Dkt. #32-2 at
7-9; Dkt. #32 at ¶ 8. When the default judgment expired
in 2016, plaintiff informed OCI of his intent to file a
lawsuit. Dkt. #32 at ¶ 42. OCI then refunded the
garnished money to plaintiff. Id Plaintiff maintains
that he was harmed by defendants' attempts to collect the
alleged debt and brings this action asserting several claims
against OCI, Ansari, Susan Cable, and Norman L. Martin.
See Dkt. #32. Plaintiff alleges, inter
alia, violations of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq., Washington's
Collection Agency Act, RCW 19.16 et seq., and
Washington's Consumer Protection Act (“CPA”),
RCW 19.86 et seq. Id.
filed his initial complaint on March 31, 2017. Dkt. #1. On
May 24, 2017, the Court ordered parties to be joined by June
21, 2017 and discovery to be completed by September 10, 2017.
Dkt. #9. On December 7, 2017, plaintiff was granted leave to
amend his complaint to include violations of the CPA, to
properly raise a constitutional challenge to RCW 6.27, and to
cure any other deficiencies. Dkt. #31. Plaintiff filed his
amended complaint on December 29, 2017. Dkt. #32. On February
5, 2018, the parties stipulated to an extension of time for
defendants to respond to the amended complaint until February
9, 2018. Dkt. #37. In the stipulation, the parties stated
that they “[would] be proposing new case schedule
dates.” Id. The Court accordingly issued an
order granting the extension on February 6, 2018. Dkt. #38.
On August 19, 2018, plaintiff filed a motion for entry of a
revised scheduling order. Dkt. #62. The Court granted
plaintiffs motion in part and extended discovery to May 10,
2019. Dkt. #71. The parties then stipulated to another
extension and the Court entered an “Amended Order
Setting Trial Date and Related Dates.” Dkt. #73. This
order set the trial for October 7, 2019, and set deadlines of
March 6, 2019 for the addition of new parties, April 10, 2019
for the amendment of pleadings, and June 9, 2019 for the
completion of discovery. Id. On April 9, 2019,
plaintiff filed this motion for leave to file a second
amended complaint. Dkt. #77.
proposed second amended complaint adds four new defendants
and asserts additional claims against new and original
defendants. Id. The additional defendants include
defendants' attorney Michael O'Meara, OCI Director
Muneera Merchant, and former OCI employees Lonnie Ledbetter
and Kayla Brown. Id. at 4-6; Dkt. #80 at 3. The
proposed claims include two new violations of the Racketeer
Influence and Corrupt Organizations Act (RICO), 18 U.S.C.
§ 1961 et seq, and one new violation of the
Washington Criminal Profiteering Act, RCW 9A.82 et
seq. Dkt. #77 at 6. Plaintiffs proposed Count 12 alleges
violations of RICO predicated on mail fraud and extortion.
Ex. 1, Dkt. #77-7 at ¶¶ 235-79. Proposed Count 13
alleges RICO violations based on the collection of an
unlawful debt and a racketeering enterprise. Id. at
¶¶ 280-86. Proposed Count 14 alleges that the
original debt assignment and the writs of garnishment were
forgeries in violation of the Washington Criminal
Profiteering Act. Id. at ¶¶ 287-95.
district court is given broad discretion in supervising the
pretrial phase of litigation.” Zivkovic v. S.
California Edison Co., 302 F.3d 1080, 1087 (9th Cir.
2002) (quoting Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 607 (9th Cir. 1992)). Other than an amendment
as a matter of course, “a party may amend its pleading
only with the opposing party's written consent or the
court's leave. The court should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). However, a
case scheduling order may be modified “only for good
cause and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). “A party seeking to amend a pleading after
the date specified in the scheduling order must first show
good cause for amendment under Rule 16, and then demonstrate
that the amendment is proper under Rule 15.” Paz v.
City of Aberdeen, No. C13-5104 RJB, 2013 WL 6163016, at
*2 (W.D. Wash. Nov. 25, 2013); see Rain Gutter Pros, LLC
v. MGP Mfg., LLC, No. C14-0458 RSM, 2015 WL 6030678, at
*1 (W.D. Wash. Oct. 15, 2015).
Rule 16, “good cause” means that “the
scheduling deadlines cannot be met despite the party's
diligence.” Paz, 2013 WL 6163016 at *2 (citing
Johnson, 975 F.2d at 609). “If the party
seeking the modification was not diligent, the inquiry should
end.” Id. (citing Millenkamp v. Davisco
Foods Intern., Inc., 448 Fed.Appx. 720, 721 (9th Cir.
“sets forth a very liberal amendment policy.”
Rain Gutter Pros, LLC, 2015 WL 6030678 at *1 (citing
Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d
708, 712 (9th Cir. 2001)). “Five factors are used to
assess the propriety of a motion for leave to amend: (1) bad
faith, (2) undue delay, (3) prejudice to the opposing party,
(4) futility of amendment, and (5) whether the party has
previously amended its pleading.” Life Last Inc. v.
Charter Oak Fire Ins. Co., No. C14-1031JLR, 2015 WL
12910683, at *2 (W.D. Wash. July 6, 2015) (citing Allen
v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.
1990)). Delay, by itself, is not sufficient to justify denial
of leave to amend. Paz, 2013 WL 6163016 at *3
(citing DCD Programs, Ltd. v. Leighton, 833 F.2d
183, 186 (9th Cir. 1986)). However, the remaining factors
“could each, independently, support a denial of leave
to amend a pleading.” Id. (citing Lockheed
Martin Corp. v. Network Solutions, Inc., 194 F.3d 980,
986 (9th Cir. 1999)). “Of these factors, prejudice to
the opposing party is the most important factor.”
Id. (citing Jackson v. Bank of Hawaii, 902
F.2d 1385, 1387 (9th Cir. 1990)).
to evaluating the delay issue is whether the moving party
knew or should have known the facts and theories raised by
the amendment.” Id. at *4 (citing
Jackson, 902 F.2d at 1388). “A party that
contends it learned ‘new' facts to support a claim
should not assert a claim that it could have pleaded in
previous pleadings.” Id. (citing Chodos v.
West Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002).
Bad faith exists where “the plaintiff merely is seeking
to prolong the litigation by adding new but baseless legal
theories.” Griggs v. Pace Am. Grp., Inc., 170
F.3d 877, 881 (9th Cir. 1999) (citing Steckman v. Hart
Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998)).
“Prejudice may effectively be established by
demonstrating that a motion to amend was made after the
cutoff date for such motions, or when discovery had closed or
was about to close.” Paz, 2013 WL 6163016 at
*4 (citing Zivkovic, 302 F.3d at 1087). “Leave
to amend need not be given if a complaint, as amended, is
subject to dismissal.” Moore v. Kayport Package
Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing
Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d
539, 546 (5th Cir. 1980), cert. denied, 454 U.S. 927
Joinder of Parties
requests to add four new defendants more than a month after
the Court's deadline for joining additional parties has
passed. See Dkt. #73; Dkt. #77. Plaintiff does not
acknowledge that deadline and moves only to amend his
complaint. Dkt. #77. The deadline for joining additional
parties is set early in the case to ensure that “all
interested parties have a full and fair opportunity to
participate in discovery.” Muse Apartments, LLC v.
Travelers Cas., No. C12-2021-RSL, 2014 WL 11997862, at
*1 (W.D. Wash. Nov. 12, 2014). When a party moves to amend
its complaint after the relevant deadline has passed, but
does not request that the Court modify its scheduling order,
the Court need not construe the motion as a motion to amend
the scheduling order. Johnson 975 F.2d at 608-09
(The “court may deny as untimely a motion filed after
the scheduling order cut-off date where no request to modify