1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ISA PLUS, LLC, Case No.: 3:22-cv-01211-JAH-JLB 11 Plaintiff,

ORDER DENYING MOTION FOR

12 v. LEAVE TO AMEND THE

COMPLAINT WITHOUT

13 PREHIRED LLC, a Delaware Limited

PREJUDICE

Liability Company; JOSHUA K. 14 JORDAN, an individual; and DOES 1 [ECF No. 93] 15 THROUGH 2, inclusive 16 Defendants. 17 18 Pending before this Court is Defendant Joshua K. Jordan’s Motion for Leave to File 19 an Amended Complaint. ECF No. 93 (the “Motion” or “Mot.”). After the resolution of 20 his motion for summary judgment, [see ECF No. 92], Jordan seeks leave to amend his 21 complaint to file a third-party complaint against Strategic Education Loan Fund, LLC 22 ("SELF") and Jeffrey Bernstein ("Bernstein"), and a Counterclaim against ISA Plus, LLC 23 ("ISAP"). 24 Federal Rule of Civil Procedure 16 applies to a motion for leave to amend a 25 complaint after the scheduling order is filed. Fed. R. Civ. P. 16. Under Rule 16(b)(4), “[a] 26 schedule may be modified only for good cause and with the judge’s consent.” 27 Fed. R. Civ. P. 16(b)(4). The Rule 16 “good cause” standard is “more stringent” than the 28 liberal amendment procedures prescribed by Rule 15(a) and considers whether the party 1 seeking the amendment has been diligent. AmerisourceBergen Corp. v. Dialysist W., Inc., 2 465 F.3d 946, 952 (9th Cir. 2006); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 3 609 (9th Cir. 1992). The Advisory Committee Notes to Rule 16 explain that the “[t]he 4 court may modify the schedule on a showing of good cause if it cannot reasonably be met 5 despite the diligence of the party seeking the extension.” Fed. R. Civ. P. 16 advisory 6 committee’s notes to 1983 amendment. 7 In determining whether a party has been diligent under Rule 16’s “good cause” 8 standard, courts within the Ninth Circuit ask whether the moving party has shown the 9 following three factors: (1) diligence in helping the Court create a workable Rule 16 order; 10 (2) noncompliance with a Rule 16 deadline occurred or will occur, despite the moving 11 party’s diligent efforts to comply, because of the development of matters not reasonably 12 foreseeable or anticipated at the time of the Rule 16 scheduling conference; and (3) 13 diligence in seeking amendment of the Rule 16 order, once it was apparent the moving 14 party could not comply with the scheduling order. Jackson v. Laureate, Inc., 186 F.R.D. 15 605, 608 (E.D. Cal. 1999) (citations omitted); Verdandi VII, Inc. v. Accelerant Specialty 16 Ins. Co., 2024 WL 239093, at *5 (S.D. Cal. Jan. 22, 2024). In assessing diligence, courts 17 focus on “the time between the moving party’s discovery of new facts and its asking leave 18 of the court to file an amended pleading.” San Diego Ass’n of Realtors, Inc. v. Sandicor, 19 Inc., 2017 WL 6344816, at *5 (S.D. Cal. Dec. 12, 2017) (citing Zivkovic v. S. California 20 Edison Co., 302 F.3d 1080, 1087-88 (9th Cir. 2002)). If the party seeking the extension 21 “was not diligent, the inquiry should end” and the motion to amend should be denied. 22 Zivkovic, 302 F.3d at 1087 (quoting Johnson, 975 F.2d at 609). While prejudice to the 23 non-moving party is not required, it can further support a court’s decision to deny a motion 24 to amend the complaint. San Diego Ass’n of Realtors, Inc., 2017 WL 6344816, at *5 (citing 25 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1295 (9th Cir. 2000)). As is the case here, a 26 motion seeking to amend pleadings is governed first by Rule 16(b), then secondarily by 27 Rule 15(a). 28 1 Jordan fails to discuss the applicable legal standards and he does not attach the 2 entirety of the proposed amended complaint and counterclaim, but seeks “10 days from the 3 of this motion to file the final versions of the proposed Third-Party Complaint and 4 ||Counterclaim[.]” Mot. at 3. Jordan also failed to obtain a motion hearing date prior to 5 || filing the instant motion, [CivLR 7.1.b.], and is reminded to familiarize himself with the 6 || Civil Local Rules and the Federal Rules of Civil Procedure. Accordingly, Jordan’s motion 7 denied without prejudice. 8 IT IS SO ORDERED. 9 || DATED: October 3, 2024 M&S 10 11 JOH A. HOUSTON

D UNWED STATES DISTRICT JUDGE

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