United States District Court, D. Utah
S.G, by and through her general guardian, BRENT GORDON et al., Plaintiffs,
JORDAN SCHOOL DISTRICT et al., Defendants.
MEMORANDUM DECISION AND ORDER DENYING FOURTH MOTION
FOR LEAVE TO AMEND
C. NIELSON, JR. UNITED STATES DISTRICT JUDGE
C. Nielson, Jr. United States District Judge Plaintiffs are a
group of female high school students who seek additional
athletic opportunities, including girls’ football
teams, at their schools. Months after the court certified a
class of female students who seek to play football, but not a
broader proposed class of female athletes, Plaintiffs moved
to amend their complaint to name additional plaintiffs and to
expand their request for relief by seeking nominal damages
for previously alleged violations of Title IX. But the time
for moving to amend or to add parties has long passed. For
the following reasons, Plaintiffs’ motion is denied.
February 26, 2018, Magistrate Judge Pead issued an amended
scheduling order setting deadlines for discovery; motions to
amend or add parties; expert disclosures, reports, and
discovery; dispositive motions and motions to exclude expert
testimony; and requesting a pretrial scheduling conference.
Dkt. No. 51 at 2. Most relevant here, this order established
July 15, 2018, deadlines both for motions to amend and for
motions to add parties. Id.
August 15, 2018, one month after these deadlines had passed,
the parties moved to extend the deadline to serve written
discovery and “adjust all other deadlines
accordingly.” Dkt. No. 101 at 1. Magistrate Judge Pead
granted the motion. See Dkt. No. 102. On October 9, 2018,
Chief Judge Shelby issued the class certification ruling. See
Dkt. No. 115. He then ordered the parties to submit a revised
scheduling proposal. See Dkt. No. 119. On November 5, 2018,
the parties moved to amend the schedule by delaying all of
the outstanding deadlines by seven to nine months. See Dkt.
No. 120. Judge Pead granted the request on November 21, 2018.
See Dkt. No. 123. Neither the August order nor the November
order referenced, let alone explicitly changed, the deadlines
for motions to amend or for motions to add parties.
February 20, 2019, Plaintiffs moved to amend their complaint
to add more plaintiffs and expand their request for relief.
See Dkt. No. 130. Concluding that the November scheduling
order (and presumably the August order) “did not change
the previously established and passed July 15, 2018 cutoff
date to amend pleadings or join parties, ” Chief Judge
Shelby denied the motion without prejudice, giving Plaintiffs
leave to file a new motion demonstrating that they could
satisfy Federal Rule of Civil Procedure 16(b)(4)’s
“good cause” requirement for modifying scheduling
orders. Dkt. No. 154 at 2–5. Plaintiffs filed a fourth
motion for leave to amend, which is now before the court. See
Dkt. No. 157.
devote much of their briefing to arguing that Chief Judge
Shelby was wrong and that either the August or the November
order vacated the July 15, 2018, deadlines. Accordingly,
Plaintiffs argue, Rule 16 does not apply to their motion, and
they need satisfy only the more lenient requirements of
Federal Rule of Civil Procedure 15. The court agrees with
Chief Judge Shelby that the July 15 deadlines for motions to
amend and motions to add parties remain binding and rejects
have repeatedly held that expired deadlines need not be
restated in amended scheduling orders to remain binding.
Cole v. Sandel Med. Indus., L.L.C., 413
Fed.App’x 683 (5th Cir. 2011), is particularly
instructive. There, the case was reassigned to a different
judge after the deadline for amending the complaint had
passed. Id. at 688. The new judge vacated the
original scheduling order and issued an amended order.
Id. After the plaintiff’s subsequently filed
motion to amend was denied under Rule 16, she moved for
reconsideration, arguing that “no pleading deadline
existed”-and thus that Rule 16 did not
apply-“because the court’s [later] order vacated
and withdrew the original scheduling order and the amended
order contained no such deadline.” Id. at 689.
Both the district court and the Fifth Circuit rejected this
argument, concluding that “[t]he new order ‘did
not change any deadlines which had already passed, but merely
set new deadlines for future events.’”
Id. (quoting district court order). Other courts
follow the same rule. See Thomason v. Toyota Motor
Eng’g & Mfg. N. Am., Inc., No. 6:14-CV-04895,
2017 WL 10901214, at *5 (D.S.C. Mar. 6, 2017) (“The few
authorities that address the issue indicate that a previous
scheduling order’s deadline for submitting a filing is
not negated merely because a subsequent scheduling order
omits a deadline for submitting the filing.”).
Burlington N. Santa Fe Ry. Co. v. A 50-Foot Wide Easement,
invoked by Plaintiffs, is readily distinguishable: in that
case, “neither the original order nor the amendments
contained a deadline for amendments to pleadings.” 346
Fed.App’x 297, 304 (10th Cir. 2009). Where, as here, an
earlier scheduling order did establish certain deadlines, and
those deadlines were omitted from a subsequent order only
after they had come and gone, the cases appear unanimously to
hold that the omitted deadlines remain binding.
rule is supported not only by precedent but also by the text
of Rule 16. That rule mandates that “[t]he scheduling
order must limit the time to join other parties, amend the
pleadings, complete discovery, and file motions.”
Fed.R.Civ.P. 16(b)(3)(A). The court will not lightly read an
amended scheduling order to violate this Rule by omitting
required deadlines. Where such an order omits required
deadlines that have already passed, it is far more reasonable
to view the omission as reflecting an implicit understanding
that such deadlines need not be repeated.
court accordingly rejects Plaintiffs’ arguments that
either the August or the November scheduling order implicitly
eliminated the already-passed July 15 motion deadlines. To be
sure, the August order not only explicitly extended the
deadline for serving written discovery but also adjusted
“all other deadlines . . . accordingly.” Dkt. No.
102 at 2. It is not difficult to understand how the
outstanding deadlines could be adjusted
“accordingly” since all of them had been
scheduled to occur after the deadline for serving written
discovery and involved matters, such as the close of
discovery, expert disclosures, dispositive motions, and the
pretrial conference, that would ordinarily (and often
necessarily) postdate this deadline. Since the deadline for
serving written discovery was extended until 30 days after a
ruling on class certification, the other deadlines would
presumably be extended to preserve the same sequence and
intervals among the deadlines that had been established by
the previous scheduling order. It is not clear, however, how
deadlines that had already passed could be extended
“accordingly.” Preserving the same sequence and
intervals established by the February order would require
that the deadlines for motions to amend and motions to add
parties be one month before the deadline for serving written
discovery-immediately upon (if not before) issuance of the
class certification ruling. That would make little sense. It
is far more natural to read the August 15 order simply to
extend all deadlines that had not yet passed.
from the law of contracts, Plaintiffs also argue that the
subsequent orders not merely amended, but entirely
superseded, the February order and that the February order
thus has no continuing legal effect. Even assuming this
distinction applies in the quite different context presented
here, Plaintiffs’ argument is unavailing. For under
Utah law, an agreement supersedes an earlier one only when it
is “plainly shown that that was the intent of the
parties.” Foote v. Taylor, 635 P.2d 46, 48
(Utah 1981). “[T]his is usually where the later
contract fully covers an earlier one.” Id.
(emphasis added). Here, of course, neither the August order
nor the November order “fully covers” the subject
matter of the February order-to the contrary, both omit
deadlines that had already passed, including the deadlines
for motions to amend and motions to add parties.
alternative, Plaintiffs argue that they satisfy the Rule 16
standard-that there is good cause to amend. But “[i]n
the Tenth Circuit, good cause ‘requires the movant to
show the scheduling deadlines cannot be met despite [the
movant’s] diligent efforts.’” McCubbin
v. Weber Cty., No. 1:15-CV-132, 2018 WL 6602210, at *5
(D. Utah Dec. 17, 2018) (quoting Gorsuch, Ltd., B.C. v.
Wells Fargo Nat. Bank Ass’n, 771 F.3d 1230, 1240
(10th Cir. 2014)). Good cause to amend does not exist where a
party fails to act “due to an error of law or fact, a
strategic decision, or a mere oversight.” Packers
Sanitation Servs., Inc., Ltd. v. Moroni Feed Co., No.
2:17-CV-01222, 2018 WL 3966281, at *3 (D. Utah Aug. 17,
2018). Indeed, “[i]t is well settled in this circuit
that untimeliness alone is a sufficient reason to deny leave
to amend.” Frank v. U.S. West, Inc., 3 F.3d
1357, 1365 (10th Cir. 1993) (collecting cases).
premise of Plaintiff’s motion is that two developments,
taken together, justify their motion to amend. First, in late
Spring or Summer of 2018, Plaintiff M.C. graduated from high
school and both she and her younger sister I.C. moved. See
Dkt. No. 157 at 7. Second, Chief Judge Shelby denied the
motion to certify one of the two proposed classes. See Dkt.
No. 115 at 6–8. As a result of these developments,
Plaintiffs fear they may now lack standing to maintain some
of their claims against the Canyons School District because
no remaining named Plaintiff currently attends a high school
in that District and the proposed class of all female
athletes or potential athletes was not certified. See Dkt.
No. 130 at 3–4; cf. Dkt. No. 130-1 at 24–30
(proposed claim on behalf of class of female athletes).
Plaintiffs seek to add new plaintiffs who attend high school
within the District to ensure their standing ...