Bill Millenkamp v. Davisco Foods International, I

MEMORANDUM **

*721 1. The district court did not abuse its discretion by denying the Millenkamps’ motion to amend the complaint. A court abuses its discretion when it bases its decision on an incorrect view of the law or a clearly erroneous finding of fact. Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir.2005). “Abuse of discretion is a highly deferential standard, under which the appellate court cannot substitute its view ... for that of the district court; rather, the review is limited to assuring that the district court’s determination has a basis in reason.” Id. (internal quotation marks and citation omitted). Although this court may have made a different decision, we cannot say that the district court either based its decision on an erroneous view of the law or on clearly erroneous facts. Therefore, we must affirm.

The standard of review for amending a Rule 16 scheduling order must be applied in making our decision, rather than the liberal amendment standards of Rule 15. 1 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.1992). The party seeking amendment of a Rule 16 order must show “good cause” for the untimely amendment — a standard which…

dissenting:

Bill and Susie Millenkamp raise calves near Jerome, Idaho. In 2002, the Millen-kamps purchased milk permeate from Davisco Foods International (“Davisco”) to feed their calves. Soon after they began feeding the permeate, the calves began to sicken and die. Subsequently, a complaint was filed against Davisco, alleging that the permeate was the cause of death. The causes of action included breach of an express warranty and breach of an implied warranty of fitness for a particular purpose.

Prior to trial, the district court entered the first of three scheduling orders. The first set the trial date for April 5, 2005, and the date for all amendments to pleadings and joinder of parties for June 1, 2004. Consistent with the purpose of Rule 16(b)(4), the scheduling order declared that the deadline should be extended for good cause shown because “[a]ll parties are entitled to know the claims and parties well before trial.” Scheduling Order at 1, Millenkamp v. Davisco Foods Int’l, Inc., No. 03-439 (D.Idaho Mar. 10, 2004), ECF No. 14. Subsequently, on July 21, 2004, after the initial due date, the scheduling order was amended to extend the deadline to amend pleadings and join…

FILED

NOT FOR PUBLICATION AUG 24 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

BILL MILLENKAMP and SUSIE No. 10-35013 MILLENKAMP, husband and wife, dba Millenµamp Cattle, D.C. No. 1:03-cv-00439-EJL-

LMB

Plaintiffs - Appellants,

v. MEMORANDUM *

DAVISCO FOODS INTERNATIONAL,

INC.,

Defendant - Appellee.

BILL MILLENKAMP and SUSIE No. 10-35664 MILLENKAMP, husband and wife, dba Millenµamp Cattle, D.C. No. 1:03-cv-00439-EJL-

LMB

Plaintiffs - Appellants,

v.

DAVISCO FOODS INTERNATIONAL,

INC.,

Defendant - Appellee.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Argued and Submitted July 11, 2011 Seattle, Washington

Before: CLIFTON and N.R. SMITH, Circuit Judges, and KORMAN, Senior District Judge.**

1. The district court did not…