1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 G&M FARMS INC., a California Case No. 1:24-cv-00213-JLT-BAM Corporation, 12 FINDINGS AND RECOMMENDATIONS Plaintiff, REGARDING MOTION FOR LEAVE OF 13 COURT TO FILE FOURTH AMENDED v. COMPLAINT 14 E.I. du PONT, dba CORTEVA (Doc. 43) 15 AGRISCIENCE, and Does 1-50, inclusive, 16 Defendants. 17 G&M Farms Inc. (“G&M Farms”) alleges that it suffered losses caused by the application 18 of Fontelis® fungicide to its blueberry plants, including the Snow Chaser variety. Currently 19 before the Court is G&M Farms’ motion for leave to file a fourth amended complaint pursuant to 20 Federal Rule of Civil Procedure 15(a)(2).1 (Doc. 43.) Defendants EIDP, Inc. and Corteva 21 Agriscience LLC (incorrectly named as E.I. du Pont and Corteva Agriscience) opposed the 22 motion. (Doc. 48.) G&M Farms did not file a reply. The matter has been submitted on the record 23 pursuant to Local Rule 230(g). (See Doc. 46.) 24 For the reasons that follow, the Court will recommend that G&M Farms’ motion for leave 25 of court to file a fourth amended complaint be DENIED. 26

28 1 The motion was referred to the undersigned for appropriate action. (Doc. 45.) 1 BACKGROUND 2 G&M Farms initiated this action in Fresno County Superior Court on January 10, 2024, 3 and asserted causes of action for strict liability in tort, negligence in manufacture, negligence n 4 warning, and breach of warranty. (See Doc. 5, Complaint.) Defendants removed the matter to 5 this Court on February 15, 2024. (Doc. 1.) 6 On March 8, 2024, Defendants moved to dismiss the complaint in its entirety. (Doc. 8.) 7 On March 26, 2024, G&M Farms filed a first amended complaint, asserting causes of 8 action for strict liability in tort, negligence in failing to warn, strict liability in labeling, breach of 9 warranty, and breach of implied warranty. (Doc. 12.) The filing of the first amended complaint 10 rendered the pending motion to dismiss as moot. (Doc. 16.) Defendants answered the first 11 amended complaint on April 9, 2024. (Doc. 17.) 12 On June 11, 2024, after a Scheduling Conference with the parties, the Court issued a 13 Scheduling Conference Order. (Doc. 27.) The Scheduling Conference Order set the following 14 deadlines:

15 Initial Disclosure: June 25, 2024 Amendment to Pleadings: September 6, 2024 16 Non-expert Discovery Cutoff: July 31, 2025 Expert Disclosure: August 22, 2025 17 Supplemental Expert Disclosure: October 3, 2025 Expert Discovery Cutoff: November 7, 2025 18 Pretrial Motion Filing Deadline: January 26, 2026 Pretrial Conference: June 29, 2026 19 Jury Trial: September 1, 2026 20 (Id.) 21 On August 28, 2024, G&M Farms filed a second amended complaint. (Doc. 33.) 22 Thereafter, on August 30, 2024, G&M Farms filed a motion for leave to file its second amended 23 complaint to delete its claim for punitive damages.2 (Doc. 34.) Defendants filed a statement of 24 non-opposition to the motion. (Doc. 39.) On September 30, 2024, the Court granted the motion 25 and, to avoid confusion, directed G&M Farms to file its complaint as a third amended complaint. 26 (Id.) . (Doc. 41.) 27 2 G&M Farms had mistakenly filed its second amended complaint without first seeking leave to amend 28 under Rule 15(a)(2). (See Doc. 43-5 at ¶ 6.) 1 On October 3, 2024, G&M Farms filed its third amended complaint, which asserts causes 2 of action for strict liability in tort, negligence in manufacture, negligence in labeling, breach of 3 written warranty, and breach of implied warranty. (Doc. 42.) G&M Farms also filed the instant 4 motion for leave to file a fourth amended complaint. (Doc. 43.) G&M Farms asserts that the 5 proposed amendment seeks to provide additional facts upon which the causes of action are based. 6 (Id. at 1.) G&M Farms explains that on September 19, 2024, while waiting for the Court’s 7 decision on the motion for leave to file a second amended complaint, Defendants advised that 8 they intended to file a motion to dismiss the bulk of the second amended complaint “on the basis 9 that allegations of defective manufacture and design, and inadequate warning and inadequate 10 testing were insufficiently plead.” (Doc. 43-5 at ¶ 7; Doc. 43-7, Ex. 1 to Declaration of D. 11 Mitchell Taylor (“Taylor Decl.”) at 3.) Counsel for G&M Farms indicated that he would prepare 12 a detailed factual basis for the allegations and asked defense counsel to stipulate to the filing of a 13 third (fourth) amended complaint. (Doc. 43-5 at ¶ 7; Doc. 43-7, Ex. 1 to Taylor Decl. at 3.) After 14 reviewing the proposed amended complaint, Defendants reportedly offered to stipulate to its 15 filing provided the allegations of defective design, inadequate warning, and inadequate testing 16 were removed. (Doc. 43-5 at ¶ 8.) G&M Farms rejected the offer. Defendants then indicated 17 that September 6, 2024 was the deadline set by the Court to file an amended complaint. Counsel 18 for G&M Farms asserted, however, that the deadline was specifically for the issue of punitive 19 damages. (Id.) 20 Upon review, the proposed fourth amended complaint submitted by G&M Farms includes 21 additional factual allegations in causes of action for strict liability in tort, negligence in 22 manufacture, breach of written warranty, and breach of implied warranty. (See Doc. 43-1, 23 Proposed Fourth Amended Complaint ¶¶ 9-11, 16, 41-42, 46.) The proposed fourth amended 24 complaint also (1) modifies the claim for negligence in labeling into a claim for failure to warn 25 with corresponding allegations, (id. ¶¶ 18-24), and (2) includes separate causes of action for 26 inadequate testing and design defect, (id. ¶¶ 25-31, 32-35). 27 /// 28 1 LEGAL STANDARDS 2 A. Federal Rule of Civil Procedure 16 3 G&M Farm’s request for leave to amend comes after expiration of the relevant Scheduling 4 Conference Order deadline for amendment to the pleadings. As observed by Defendants, the 5 Court therefore must apply the standard for amending a scheduling order under Federal Rule of 6 Civil Procedure 16. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (finding 7 district court correctly addressed motion for leave to amend under Rule 16 because it had issued a 8 pretrial scheduling order that established a timetable for amending the pleadings and the motion 9 was filed after the deadline had expired); Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. 10 Cal. June 16, 1999) (“[O]nce the district court has filed a pretrial scheduling order pursuant to 11 Rule 16 which establishes a timetable for amending pleadings, a motion seeking to amend 12 pleadings is governed first by Rule 16(b), and only secondarily by Rule 15(a).”). 13 District courts enter scheduling orders in actions to “limit the time to join other parties, 14 amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). Once 15 entered, a scheduling order “controls the course of the action unless the court modifies it.” Fed. R. 16 Civ. P. 16(d). Scheduling orders are intended to alleviate case management problems, Johnson v. 17 Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992), and are “the heart of case 18 management,” Koplove v. Ford Motor Co., 795 F.2d 15, 18 (3rd Cir. 1986). Indeed, a scheduling 19 order is “not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by 20 counsel without peril.” Johnson, 975 F.2d at 610 (quoting Gestetner Corp. v. Case Equip. Co., 21 108 F.R.D. 138, 141 (D. Maine 1985)). Accordingly, pursuant to Federal Rule of Civil Procedure 22 16(b), a scheduling order “may be modified only for good cause and with the judge’s consent.” 23 Fed. R. Civ. P. 16(b)(4); see also Green Aire for Air Conditioning W.L.L. v. Salem, No. 1:18-cv- 24 00873-LJO-SKO, 2020 WL 58279, at *3 (E.D. Cal. Jan. 6, 2020) (“Requests to modify a 25 scheduling order are governed by Rule 16(b)(4) of the Federal Rules of Civil Procedure, which 26 provides that a court may modify a scheduling order ‘only for good cause.’”). 27 /// 28 /// 1 As the Ninth Circuit has explained,

2 In these days of heavy caseloads, trial courts in both the federal and state systems routinely set schedules and establish deadlines to foster the efficient treatment and 3 resolution of cases. Those efforts will be successful only if the deadlines are taken seriously by the parties, and the best way to encourage that is to enforce the 4 deadlines. Parties must understand that they will pay a price for failure to comply strictly with the scheduling and other orders, and that failure to do so may properly 5 support severe sanctions and exclusions of evidence. 6 Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005). 7 The party seeking to modify a scheduling order bears the burden of demonstrating good 8 cause. Handel v. Rhoe, No. 14-cv-1930-BAS(JMA), 2015 WL 6127271, at *2 (S.D. Cal. Oct. 16, 9 2015) (citing Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 975 10 F.2d at 608-609). The Court may modify the scheduling order “if it cannot reasonably be met 11 despite the diligence of the party seeking the extension.” Johnson, 975 F.2d at 609. If the party 12 was not diligent, then the inquiry should end. Id. If, however, there is good cause to modify the 13 scheduling order pursuant to Rule 16(b), the Court will then turn to Rule 15(a) to determine 14 whether the movant’s requested amendment to the pleading should be granted. Ramos v. FCA US 15 LLC, No. 1:17-CV-00973, 2019 WL 2106172, at *5 (citing Jackson, 186 F.R.D. at 607). 16 B. Federal Rule of Civil Procedure 15(a) 17 Rule 15(a) provides that a court “should freely give leave [to amend] when justice so 18 requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has stated:

19 [i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies 20 by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the leave sought 21 should, as the rules require, be “freely given.” 22 Foman v. Davis, 371 U.S. 178, 182 (1962). The intent of the rule is to “facilitate decision on the 23 merits, rather than on the pleadings or technicalities.” Chudacoff v. Univ. Med. Center of S. Nev., 24 649 F.3d 1143, 1152 (9th Cir. 2011). Consequently, the “policy of favoring amendments to 25 pleadings should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 26 (9th Cir. 1981). 27 Courts consider five factors in determining whether justice requires allowing amendment 28 under Rule 15(a): “bad faith, undue delay, prejudice to the opposing party, futility of amendment, 1 and whether the plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 2 1067, 1077 (9th Cir. 2004) (citation omitted); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 3 1995) (citing Western Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991)). 4 These factors are not of equal weight as prejudice to the opposing party has long been held to be 5 the most critical factor in determining whether to grant leave to amend. Eminence Capital, LLC v. 6 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (“As this circuit and others have held, it is the 7 consideration of prejudice to the opposing party that carries the greatest weight”); Jackson v. 8 Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (“Prejudice to the opposing party is the 9 most important factor.”). Absent prejudice, or a strong showing of any of the remaining factors, a 10 presumption exists under Rule 15(a) in favor of granting leave to amend. Eminence Capital, 316 11 F.3d at 1052. 12 DISCUSSION 13 As indicated, G&M Farms’ request for leave to amend comes after expiration of the 14 relevant deadline for amendment of the pleadings as set forth in the Scheduling Conference 15 Order. Although G&M Farms contends that such deadline was specific to the punitive damage 16 claim, (see Doc. 43-5 at ¶ 9; Doc. 43-6, Taylor Decl. ¶ 8), that contention is incorrect. The 17 Scheduling Conference Order deadline applies to all motions to amend the pleadings, and 18 expressly states, “All stipulated amendments or motions to amend shall be filed by September 6, 19 2024.” (Doc. 27 at 2.) G&M Farms is therefore required to demonstrate good cause to modify 20 the Scheduling Conference Order. See Coleman, 232 F.3d at 1294–95; Johnson, 974 F.2d at 609. 21 The Court will examine G&M Farms’ diligence to determine whether amendment of the 22 Scheduling Conference Order is proper. Phillips-Kerley v. City of Fresno, No. 1:18-cv-00438- 23 AWI-BAM, 2021 WL 1966387, at *3 (E.D. Cal. May 17, 2021). In determining diligence, the 24 Court can inquire into (1) whether the movant was diligent in aiding the Court in creating a 25 scheduling order, (2) whether matters that were not, and could not be foreseeable at the time the 26 scheduling order was entered caused the need to amend, and (3) whether the movant was diligent 27 in attempting to amend the scheduling order once the need to amend became apparent. Gonzalez 28 v. Jones, No. 2:15-cv-2448-TLN-KJN, 2020 WL 9144005, at *2 (E.D. Cal. April 13, 2020) 1 (citation omitted). 2 Here, the Court does not find the requisite diligence to support modification of the 3 Scheduling Conference Order. First, G&M Farms has neither requested modification of the 4 Scheduling Conference Order, nor addressed the Rule 16 standard. Second, although G&M 5 Farms aided the Court in creating a scheduling order, it is not evident that the present need to 6 amend was caused by matters that were not, and could not be, foreseeable at the time the 7 Scheduling Conference Order was entered. For instance, G&M Farms has not indicated that the 8 underlying facts and causes of action that it seeks to include in the fourth amended complaint 9 were not known or knowable when it initiated this action in January 2024. Additionally, it 10 appears that G&M Farms is attempting to amend its complaint to address purported pleading 11 deficiencies in its claims of defective manufacture and design, inadequate warning, and 12 inadequate testing, which were identified by Defendants after expiration of the amendment 13 deadline. (Doc. 43-5 at ¶ 7; Doc. 43-7, Ex. 1 to Taylor Decl.) However, Defendants previously 14 challenged the sufficiency of G&M Farms’ claims for defects in testing, design, manufacture, 15 labeling, and warning by filing a motion to dismiss in March 2024.3 (See Doc. 8; Doc. 48 at 3.) 16 This was well before the Court issued the Scheduling Conference Order in June 2024. (Doc. 27.) 17 G&M Farms has had multiple opportunities to amend its complaint prior to expiration of the 18 relevant amendment deadline as evidenced by filing both a first amended complaint and seeking 19 leave to file a second amended complaint (now identified as the third amended complaint). There 20 is no indication as to why the pleading deficiencies could not have been addressed at that time. 21 Third, and finally, even if G&M Farms was unaware of any pleading deficiencies in its operative 22 complaint until after expiration of the amendment deadline, (see Doc. 43-5 at ¶ 7; Doc. 43-7, Ex. 23 1 to Taylor Decl.), G&M Farms has not presented any argument that it attempted to seek 24 modification of the Scheduling Conference Order once any need to amend became apparent. For 25 these reasons, the Court does not find the requisite diligence and concludes that there is not good 26

27 3 Defendants also notified G&M Farms in May 2024 of pleading deficiencies in its strict liability in tort cause for any alleged defects in testing or manufacture. (Doc. 48-1, Declaration of William E. Padgett ¶ 3 28 and Ex. 1.) 1 cause for modifying the Scheduling Conference Order. Johnson, 975 F.2d at 609. Accordingly, 2 the Court need not address whether G&M Farms satisfied Rule 15(a)(2)’s standard for amending 3 the complaint, and will recommend denial of G&M Farms’ motion for leave to amend. See 4 Ramos, 2019 WL 2106172, at *8. 5 CONCLUSION AND RECOMMENDATION 6 For the reasons discussed above, IT IS HEREBY RECOMMENDED that G&M Farms’ 7 motion for leave of court to file an amended complaint (Doc. 43) be DENIED. 8 These Findings and Recommendations will be submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 10 fourteen (14) days after being served with these Findings and Recommendations, the parties may 11 file written objections with the court. The document should be captioned “Objections to 12 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed 13 fifteen (15) pages or include exhibits. Exhibits may be referenced by document and page 14 number if already in the record before the Court. Any pages filed in excess of the 15-page 15 limit may not be considered. The parties are advised that failure to file objections within the 16 specified time may result in the waiver of the “right to challenge the magistrate’s factual 17 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter 18 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

21 Dated: December 3, 2024 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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