United States District Court, D. Montana, Butte Division
ORDER, AND FINDINGS AND RECOMMENDATION
Jeremiah C. Lynch United States Magistrate Judge
matter is before the Court on Defendants First Montana Bank,
Inc. and Chris DuToit's Fed.R.Civ.P. 12(b)(1) and (b)(6)
motion to dismiss. In response to the motion Plaintiff Dan
McCaul asserts he intends to file a motion for leave to amend
his present pleading to include necessary facts that came to
light after he filed his Second Amended Complaint. (Doc. 80
at 7 of 34 n.2.) For example, in his brief McCaul presents
additional facts not set forth in his pleading which seek to
support his contention that an “enterprise”
existed as is necessary to plead his claim under the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§ 1961 et seq. (Doc. 80 at 21-22 of 34.)
in the parties' recent stipulation to amend the
scheduling order they acknowledged that McCaul served
discovery requests upon Defendants in March, 2018, that
Defendants requested an extension of time to respond to those
discovery requests, and McCaul agreed to allow Defendants
until the week of May 20, 2018, to serve their
responses. (Doc. 85 at 2.) Thus, McCaul represents
that based on the discovery responses he anticipates
receiving after May 20, 2018, he may seek to amend his
pleading. (Doc. 85 at 2.) Defendants' counsel signed the
stipulation and, therefore, Defendants are at least aware of
McCaul's intent to seek leave to amend.
McCaul moves for leave to amend his pleading as intended, he
would be obligated to demonstrate “good cause”
under Fed.R.Civ.P. 16(b)(4) to extend the deadline for
amendment of pleadings, and he would have to satisfy the
standard for granting leave to amend under Fed.R.Civ.P.
15(a). Where, as here, the deadline for amendment of
pleadings has expired, a litigant must first satisfy the
“good cause” standard of Rule 16(b)(4) before he
can invoke the liberal amendment standards of Rule 15(a).
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294
(9thCir. 2000) (citing Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607-09 (9th
the Court were satisfied that McCaul's intended motion
for leave to amend presented sufficient information to meet
the referenced standards under Rules 15 and 16 and,
therefore, grants the motion for leave to amend, then
Defendants' present motion to dismiss would be rendered
moot by the filing of another amended pleading. Furthermore,
the Court's expenditure of time and resources to address
the merits of Defendants' present motion to dismiss and
to issue a recommendation to the presiding District Judge
would be wasted if an amended pleading is filed.
federal courts have “broad discretion in supervising
the pretrial phase of litigation” (Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607
(9th Cir. 1992)), and “inherent power to
control their docket” (Ready Transportation, Inc.
v. AAR Manufacturing, Inc., 627 F.3d 402, 404
(9th Cir. 2010)) “in a manner which will
promote economy of time and effort for itself, for counsel,
and for litigants.” CMAX, Inc. v. Hall, 300
F.2d 265, 268 (9th Cir. 1962). See Landis v.
North American Co., 299 U.S. 248, 254 (1936) (same).
the circumstances of this case, and McCaul's expressed
intent to seek leave to file an amended pleading, the Court
concludes further time and resources spent on the present
motion to dismiss would constitute an unnecessary waste of
judicial resources. Therefore, the Court exercises its
inherent authority to control the matters on its docket, and
IT IS HEREBY ORDERED that on or before June 8, 2018, McCaul
shall file his intended motion for leave to file an amended
pleading in compliance with Fed.R.Civ.P. 15 and 16(b)(4).
of McCaul's opportunity to move for leave to amend, IT IS
HEREBY RECOMMENDED that Defendants' Fed.R.Civ.P. 12(b)(1)
and (b)(6) motion to dismiss be DENIED with leave to renew.
Defendants should be permitted to renew their motion to
dismiss after McCaul files his amended pleading if the Court
grants him leave to do so, or after June 8, 2018, if McCaul
elects not to move for leave to amend.
parties are advised that pursuant to 28 U.S.C. § 636,
any objections to these findings and recommendation must be
filed on or before May 17, 2017. See United States v.
Barney, 568 F.2d 134, 136 (9th Cir. 1978)
(the court need not give the parties the full statutory
period set forth in 28 U.S.C. § 636(b)(1) within which
to file objections).
The Court granted the parties'
stipulation and extended the pretrial schedule and trial date
by approximately 5 months. But the deadline for amendment of
pleadings was previously set for January 5, 2018, and the new