United States District Court, D. Oregon
Courtney Angeli and Angela Ferrer, Buchanan Angeli Altschul
& Sullivan LLP, 921 SW Washington Street, Suite 516,
Portland, OR 97205; Edward Piper, Angeli Law Group LLC, 121
SW Morrison Street, Suite 400, Portland, OR 97204. Of
Attorneys for Plaintiff.
T. Munsinger and Jose A. Klein, Klein Munsinger LLC, 600 N.W.
Naito Parkway, Suite G, Portland OR 97209. Of Attorneys for
OPINION AND ORDER
MICHAEL H. SIMON UNITED STATES DISTRICT JUDGE
States Magistrate Judge John V. Acosta issued Findings and
Recommendation (“F&R”) in this case on March
14, 2018. ECF 84. Judge Acosta recommended denying
Plaintiff's motion to amend his complaint. Plaintiff
objects to a portion of the F&R. For the reasons that
follow, the F&R is adopted in part.
Review of a Magistrate's Findings and
the Federal Magistrates Act (“Act”), the Court
may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). If a party
files objections to a magistrate's findings and
recommendations, “the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id.; Fed.R.Civ.P. 72(b)(3).
those portions of a magistrate's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate's findings and recommendations if objection is
made, “but not otherwise”). Although in the
absence of objections no review is required, the Act
“does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate's recommendations
for “clear error on the face of the record.”
Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure
15(a)(2) of the Federal Rules of Civil Procedure provides
that the “court should freely give leave [to amend a
pleading] when justice so requires.” A district court
should apply Rule 15's “policy of favoring
amendments . . . with extreme liberality.” Price v.
Kramer, 200 F.3d 1237, 1250 (9th Cir. 2000) (quotation
marks omitted). The purpose of the rule “is ‘to
facilitate decision on the merits, rather than on the
pleadings or technicalities.'” Novak v. United
States, 795 F.3d 1012, 1020 (9th Cir. 2015) (quoting
Chudacoff v. Univ. Med. Ctr., 649 F.3d 1143, 1152
(9th Cir. 2011)). A district court, however, may, within its
discretion, deny a motion to amend “‘due to undue
delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of the
amendment.'” Zucco Partners, LLC v. Digimarc
Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (alteration in
original) (quoting Leadsinger, Inc. v. BMG Music
Publ'g, 512 F.3d 522, 532 (9th Cir. 2008)).
“Not all of the factors merit equal weight. As this
circuit and others have held, it is the consideration of
prejudice to the opposing party that carries the greatest
weight.” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “The
party opposing amendment bears the burden of showing
prejudice.” DCD Programs, Ltd. v. Leighton,
833 F.2d 183, 187 (9th Cir. 1987). Futility of amendment,
however, “can, by itself, justify the denial of a
motion for leave to amend.” Bonin v. Calderon,
59 F.3d 815, 845 (9th Cir. 1995).
Rule 16 of the Federal Rules of Civil Procedure
court has entered a case scheduling order pursuant to Rule 16
of the Federal Rules of Civil Procedure and a party requests
to amend a pleading after the expiration of the deadline set
by the court, the party's request is controlled by Rule
16(b), not by Rule 15(a). See AmerisourceBergen Corp. v.
Dialysist W., Inc., 465 F.3d 946, 952 (9th Cir. 2006);
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
607-08 (9th Cir. 1992). Thus, the party requesting an
amendment must first show “good cause” under Rule
16(b) and then show that its proposed amendment is proper
under Rule 15(a). Johnson, 975 F.2d at 608.
Ninth Circuit has explained good cause under Rule 16(b) as
“A court's evaluation of good cause is not
coextensive with an inquiry into the propriety of the
amendment under . . . Rule 15.” 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. The district court may
modify the pretrial schedule “if it cannot reasonably
be met despite the diligence of the party seeking the
extension.” Moreover, carelessness is not compatible
with a finding of diligence and offers no reason for a grant
of relief. Although the existence or degree of prejudice to
the party opposing the modification might supply additional
reasons to deny a motion, the focus of the inquiry is upon
the moving party's reasons for seeking modification. If
that party was not diligent, the inquiry should end.
Id. at 609 (citations omitted); see also In re
W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d
716, 737 (9th Cir. 2013), aff'd sub nom. Oneok, Inc.
v. Learjet, Inc., 135 S.Ct. 1591 (2015)
(““While a court may take into account any
prejudice to the party opposing modification of the
scheduling order, ‘the focus of the [Rule 16(b) ]
inquiry is upon the moving party's reasons for seeking
modification . . . [i]f ...