United States District Court, D. New Jersey
OPINION AND ORDER
HONORABLE JAMES B. CLARK, III UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on a motion by
Plaintiff Physicians Healthsource, Inc. ("Plaintiff) for
leave to file a Second Amended Complaint [ECF No. 27].
Defendant Advanced Data Systems International, LLC.
("Defendant" or "ADSI") opposes
Plaintiffs motion [ECF No. 28]. The Court fully reviewed the
parties' written submissions and considers Plaintiffs
motion without oral argument pursuant to L. Civ. R. 78.1(b).
For the reasons set forth below, Plaintiffs Motion to Amend
of background, this is a "junk fax" case brought
under the Telephone Consumer Protection Act
("TCPA"), 47 U.S.C. § 227, on behalf of
Plaintiff and all those similarly situated. See
generally Am. Compl. According to the Amended Complaint,
on or about March 7, 2013 and March 20, 2013 Plaintiff
received advertisements from Defendant via facsimile. Am.
Compl. ¶ 2. Plaintiff claims that the faxes describe the
commercial availability or quality of Defendant's
products, goods and services. Id. Although it was
not directly stated, the March 7, 2013 fax appears to be from
"Advanced Data Systems Corporation" which is
clearly printed at the top of the fax. Exh. 1, ECF No. 16-1
at 2. The March 20, 2013 fax, however, does not contain the
same language as the March 7, 2013 fax and it is not clear
who this fax is from. Id. at 4. According to
Plaintiff, these faxes were unsolicited. Am. Compl. ¶ 2.
January 31, 2017, the Court entered a Pretrial Scheduling
Order ("Scheduling Order") directing the parties to
file motions for leave to amend the pleadings by no later
than May 12, 2017. Scheduling Order ¶¶ 15, 16, ECF
No. 23. On November 2, 2017, more than 5 months after the
deadline to amend the pleadings expired, Plaintiff filed the
present motion to amend. See Pl.'s Mot. to Am.
Compl. ("Pl.'s Mot"), ECF No. 27. In its
motion, Plaintiff seeks to add Advanced Data Systems
Corporation of Delaware ("ADSC" or the
"Proposed Defendant") as a party and to include six
additional fax advertisements as exhibits. Id.
opposes Plaintiffs motion to amend on several grounds.
See Def's Mem. in Opp'n ("Def's
Opp'n"), ECF No. 28. In first part, Defendant argues
that the record submitted by Plaintiff is devoid of any
evidence of good cause, and therefore Plaintiffs motion must
be denied. Id. at 1-2. In second part, Defendant
argues that even if the Court finds good cause, Plaintiffs
motion should still be denied because Plaintiff failed to
offer a reasonable excuse for its undue delay.
threshold issue in resolving a motion to amend is the
determination of whether the motion is governed by Rule 15 or
Rule 16 of the Federal Rules of Civil Procedure."
Karlo v. Pittsburgh Glass Works, LLC, 2011 WL
5170445, at *2 (W.D.Pa. Oct. 31, 2011). Rule 15 states, in
pertinent part, "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). "Rule
16, on the other hand, requires a party to demonstrate
'good cause' prior to the Court amending its
scheduling order." Karlo, 2011 WL 5170445, at
*2 (citing Fed.R.Civ.P. 16(b)(4)). In situations such as the
present, where a party seeks to amend "after the
deadline for doing so set by the Court, the movant must
satisfy the [good cause standard] of Rule 16 before the Court
will turn to Rule 15." Id. at *2; see also
Dimensional Commc'n, Inc. v. OZ Optics, Ltd., 148
Fed.Appx. 82, 85 (3d Cir. 2005) (instructing that the Third
Circuit has adopted a good cause standard when determining
the propriety of a motion to amend after the deadline has
Rule 16 Standard
Rule of Civil Procedure 16 authorizes courts to enter
schedules of proceedings. The pretrial scheduling order
allows a court to take "judicial control over a case and
to schedule dates for completion by the parties of the
principal pretrial steps." Harrison Beverage Co. v.
Dribeck Imps., Inc., 133 F.R.D. 463, 469 (D.N.J. Oct.
19, 1990) (quoting Fed.R.Civ.P. 16 advisory committee's
note (1983 Amendment)); see also Newton v. A.C. & S.,
Inc., 918 F.2d 1121, 1126 (3d Cir. 1990) (stating the
purpose of Rule 16 is to provide for judicial control over
cases, streamline proceedings, maximize efficiency of the
court system, and actively manage the timetable of case
preparation to expedite speedy and efficient disposition of
scheduling order must, among other things, "limit the
time to join other parties, amend the pleadings, complete
discovery, and file motions." Fed.R.Civ.P. 16(b)(3)(A).
The requirement of a deadline for amending pleadings in the
pretrial scheduling order "assures that at some point.
.. the pleadings will be fixed." Fed.R.Civ.P. 16(b)
advisory committee's note (1983 Amendment); see also
Harrison, 133 F.R.D. at 469 ("The careful scheme of
reasonable framing and enforcement of scheduling orders for
case management would thus be nullified if a party could
inject amended pleadings upon a showing of less than good
cause after scheduling deadlines have expired."). The
burden is on the moving party to show "good cause"
for its failure to comply with the applicable scheduling
order, and accordingly, for the Court to allow its proposed
amended pleading. Prince v. Aiellos, No. 09-5429,
2012 WL 1883812, at *6 (D.N.J. May 22, 2012) (quoting
Graham, 271 F.R.D. at 118); see also Race Tires
Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84
(3d Cir. 2010) (affirming the trial court's holding that
"Rule 16(b)(4) focuses on the moving party's burden
to show due diligence").
Court has "discretion in determining what kind of
showing the moving party must make in order to satisfy Rule
16(b)'s good cause requirement." Phillips v.
Greben, No. 04-5590, 2006 WL 3069475, at *6 (D.N.J.
Oct.27, 2006). The determination of whether "good
cause" exists under Rule 16 hinges to a large extent on
the diligence, or lack thereof, of the moving party.
GlobespanVirata, Inc. v. Texas Instruments, Inc.,
2005 WL 1638136, at *3 (D.N.J. July 12, 2005) (quoting
Rent-A-Ctr. v. Mamaroneck Ave. Corp., 215 F.R.D.
100, 104 (S.D.N.Y. Apr. 9, 2003)). Put succinctly,
"[a]bsent diligence, there is no 'good
cause.'" Chancellor v. Pottsgrove Sch.
Dist., 501 F.Supp.2d 695, 702 (E.D.Pa. Aug. 8, 2007);
see also Fed. R. Civ. P. 16(b), advisory
committee's note (1983 Amendment) ("[T]he court may
modify the schedule on a showing of good cause if it cannot
reasonably be met despite the diligence of the party seeking
examining a party's diligence and whether "good
cause" exists for granting an otherwise untimely motion
to amend pleadings, courts typically ascertain whether the
movant possessed, or through the exercise of reasonable
diligence should have possessed, the knowledge necessary to
file the motion to amend before the deadline expired. See
Stallings ex rel. Estate of Stallings v. IBM
Corp., Civ. No. 08-3121, 2009 WL 2905471, at *16 (D.N.J.
Sept. 8, 2009) (denying plaintiffs' motion to amend
because they "had sufficient information to state the
proposed claims well in advance of the Scheduling Order
deadline"); Kennedy v. City of Newark,, 2011 WL
2669601, at *2 (D.N.J. July 7, 2011) ("The most common
basis for finding a lack of good cause is the party's
knowledge of the potential claim before the deadline to amend
has passed."). If a movant had the knowledge necessary
to file a motion to amend prior to the expiration of the
Court's deadline set forth in the scheduling order, and
if the movant can provide no satisfactory explanation for the
delay, the Court may, in its discretion, deny the motion.
See Dimensional Commc'n., 148 Fed.Appx. at 85
(upholding trial court's finding that the movant could
not show "good cause" because it was in possession
of the facts underlying its proposed counterclaim well before
the deadline for amendment). Under some circumstances, good
cause may be satisfied if the movant shows that its delay in
filing the motion to amend stemmed from "any mistake,
excusable neglect or any other factor which might
understandably account for failure of counsel to undertake to
comply with the Scheduling Order." Phillips,
2006 WL 3069475, at *6.