1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 AYATO IKEMA, Case No.: 22-cv-1548-CAB-MDD

13 Plaintiff, ORDER DENYING MOTION FOR 14 v. LEAVE TO AMEND COMPLAINT 15 NISHIKI DINER USA, INC., et al, 16 Defendants. 17 18 Before the Court is Plaintiff’s motion for leave to amend the complaint. [Doc. No. 19 7]. For the reasons set forth, the motion is DENIED. 20 Plaintiff filed this case against his former employers on September 6, 2022, alleging 21 violations of California labor laws and the federal Fair Labor Standards Act. This action 22 was removed from state court on October 10, 2022. [Doc. No. 1]. The Parties filed a Rule 23 26(f) Status Report on December 2, 2022, indicating that there were no anticipated 24 amendments to the pleadings. [Doc. No. 4]. Magistrate Judge Mitchell D. Dembin issued 25 a scheduling order on December 14, 2022, requiring the Parties to submit any motion to 26 amend the pleadings by January 30, 2023. [Doc. No. 6]. Plaintiff filed this motion for leave 27 to amend the complaint on March 6, 2023. [Doc. No. 7]. Defendants filed their opposition 28 to Plaintiff’s motion on March 27, 2023. [Doc. No. 8]. 1 When assessing an untimely motion to amend, the Court must apply the “good 2 cause” standard set forth in Federal Rule of Civil Procedure 16(b)(4). A “schedule may be 3 modified only if for good cause and with the judge’s consent.” Fed. R. Civ. Proc. 16(b)(4). 4 ||“The focus of the [Rule 16(b)] inquiry is upon the moving party’s reasons for seeking 5 ||modification . . . [i]f that party was not diligent, the inquiry should end.” Johnson v. 6 || Mammoth Recreations, Inc.,

(9th Cir. 1992). “The good cause standard 7 || typically will not be met where the party seeking to modify the scheduling order has been 8 ||aware of the facts and theories supporting amendment since the inception of the action.” 9 || In re W. States Wholesale Nat. Gas Antitrust Litig.,

(9th Cir. 2013), aff'd 10 || sub nom. Oneok, Inc. v. Learjet, Inc.,

(2015). 11 Plaintiff moves to add a new cause of action of constructive discharge due to the 12 ||recent discovery by Plaintiff's counsel of the alleged factual circumstances surrounding 13 || Plaintiff's resignation. [Doc. No. 7 at 3]. Defendant argues, and the Court agrees, that 14 || Plaintiff was aware of the reasons for his own resignation from at least August 2022 when 15 resigned. [Doc. No. 8 at 1]. Plaintiff had multiple opportunities prior to the 16 ||commencement of discovery to disclose the facts necessary to add a constructive discharge 17 ||claim. The Court finds Plaintiff has not exercised diligence in bringing this new claim and 18 || there is no good cause to grant leave to amend. 19 In light of the foregoing, Plaintiffs motion for leave to amend is DENIED.! This 20 || order is without prejudice to Plaintiff filing the additional claim in state court. 21 22 It is SO ORDERED. 23 ||Dated: April 10, 2023 € ZL 24 Hon. Cathy Ann Bencivengo 25 United States District Judge 26 27 || ———___—_—_—- 28 Defendants’ objections to Attorney Robert Cohen’s declaration [Doc. No. 8-2] are DENIED as moot.