                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 24 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



BILL MILLENKAMP and SUSIE                        No. 10-35013
MILLENKAMP, husband and wife, dba
Millenµamp Cattle,                               D.C. No. 1:03-cv-00439-EJL-
                                                 LMB
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

DAVISCO FOODS INTERNATIONAL,
INC.,

              Defendant - Appellee.



BILL MILLENKAMP and SUSIE                        No. 10-35664
MILLENKAMP, husband and wife, dba
Millenµamp Cattle,                               D.C. No. 1:03-cv-00439-EJL-
                                                 LMB
              Plaintiffs - Appellants,

  v.

DAVISCO FOODS INTERNATIONAL,
INC.,

              Defendant - Appellee.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Appeal from the United States District Court
                               for the District of Idaho
                      Edward J. Lodge, District Judge, Presiding

                          Argued and Submitted July 11, 2011
                                 Seattle, Washington

Before: CLIFTON and N.R. SMITH, Circuit Judges, and KORMAN, Senior
District Judge.**




1.     The district court did not abuse its discretion by denying the Millenµamps'

motion to amend the complaint. A court abuses its discretion when it bases its

decision on an incorrect view of the law or a clearly erroneous finding of fact.

Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). 'Abuse of

discretion is a highly deferential standard, under which the appellate court cannot

substitute its view . . . for that of the district court; rather, the review is limited to

assuring that the district court's determination has a basis in reason.' Id. (internal

quotation marµs and citation omitted). Although this court may have made a

different decision, we cannot say that the district court either based its decision on

an erroneous view of the law or on clearly erroneous facts. Therefore, we must

affirm.



          **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New Yorµ, Brooµlyn, sitting by designation.

                                              2
      The standard of review for amending a Rule 16 scheduling order must be

applied in maµing our decision, rather than the liberal amendment standards of

Rule 15.1 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.

1992). The party seeµing amendment of a Rule 16 order must show 'good cause'

for the untimely amendment--a standard which 'primarily considers the diligence

of the party seeµing the amendment.' Id. at 609. Here, the Millenµamps have not

been diligent in seeµing an amendment. They admit that the amendment is not

based on any new facts. They have not argued that there were any circumstances

which prevented them from amending the complaint between the original filing in

October 2003 and the amendment deadline, August 2, 2004. Nor have they shown

that they could not have amended at any time prior to trial in 2006. Even under

Rule 15, a district court does not abuse its discretion by denying amendment after a

final judgment when 'the movant present[s] no new facts but only new theories

and provide[s] no satisfactory explanation for his failure to fully develop his




      1
        The Millenµamps argued, without citation to any authority, that the
scheduling order had 'expired' upon remand. However, the magistrate judge in
interpreting the order did not hold that it had expired, and the district court, in
issuing a new scheduling order did not prolong the previously established
deadlines for amending the complaint or discovery.

                                           3
contentions originally.' Vincent v. Trend W. Technical Corp., 828 F.2d 563, 570-

71 (9th Cir. 1987) (internal quotation marµs and citation omitted).

      Under Rule 16, it is irrelevant that granting leave to amend may not have

prejudiced Davisco, because the motion was filed six months prior to the new trial

date and no new discovery was necessary. The same 'good cause' standard for

amending would have applied between August 2004 and the first trial in May

2006, even though discovery concluded by November 2004. It would be

incongruous to find the district court abused its discretion in denying leave to

amend at this late date, when the court would have been justified in denying leave

to amend at an earlier date under similar facts and the same standard. 2

2.    The district court did not abuse its discretion in awarding attorney's fees to

Davisco. The party challenging the award of fees has the burden of submitting

evidence to show which hours were duplicative or unreasonable. Gates v.

Deuµmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1993). Here, because the time

records submitted by Davisco were sufficiently detailed to segregate the allowed


      2
        We agree with Judge Korman that the Millenµamps' case presents
sympathetic facts. However, as a court of appeals, we are governed by the
standard of review and must defer to the judgment of the district court, rather than
maµing a de novo decision. Because we cannot say the district court abused its
discretion, we must affirm.

                                          4
fees from the hours expended on the negligence claims, the fee award was proper.

BECO Constr. Co. v. J-U-B Engineers Inc., 233 P.3d 1216, 1220-21 (Idaho 2010).

Although the Millenµamps argue that the hours billed by Davisco are

unreasonable, they point to no evidence in the record to show that the fees awarded

by the district court included duplicative hours. 'If opposing counsel cannot come

up with specific reasons for reducing the fee request that the district court finds

persuasive, it should normally grant the award in full, or with no more than a

haircut.' Moreno v. City of Sacramento, 534 F.3d 1106, 1116 (9th Cir. 2008).

      AFFIRMED.




                                           5
                                                                               FILED
Millenµamp v. Davisco Foods Int'l, Inc., No. 10-35013, 10-35664                 AUG 24 2011

                                                                           MOLLY C. DWYER, CLERK
KORMAN, District Judge., dissenting:                                         U.S . CO U RT OF AP PE A LS




      Bill and Susie Millenµamp raise calves near Jerome, Idaho. In 2002, the

Millenµamps purchased milµ permeate from Davisco Foods International ('Davisco')

to feed their calves. Soon after they began feeding the permeate, the calves began to

sicµen and die. Subsequently, a complaint was filed against Davisco, alleging that the

permeate was the cause of death. The causes of action included breach of an express

warranty and breach of an implied warranty of fitness for a particular purpose.

      Prior to trial, the district court entered the first of three scheduling orders. The

first set the trial date for April 5, 2005, and the date for all amendments to pleadings

and joinder of parties for June 1, 2004. Consistent with the purpose of Rule 16(b)(4),

the scheduling order declared that the deadline should be extended for good cause

shown because '[a]ll parties are entitled to µnow the claims and parties well before

trial.' Scheduling Order at 1, Millenµamp v. Davisco Foods Int'l, Inc., No. 03-439 (D.

Idaho Mar. 10, 2004), ECF No. 14. Subsequently, on July 21, 2004, after the initial

due date, the scheduling order was amended to extend the deadline to amend

pleadings and join parties to August 2, 2004. And on February 11, 2005, the trial date

was moved to January 17, 2006. Then, on September 21, 2004, although containing

a pro forma recital of good cause, the scheduling order was amended again for no


                                           1
apparent reason. The district court, however, included a handwritten note 'that by

granting this stipulation the scheduled trial date may necessarily be affected.' Third

Order Extending Deadlines, Millenµamp v. Davisco Foods Int'l, Inc., No. 03-439 (D.

Idaho Sept. 21, 2004), ECF No. 35. Indeed, it was extended to May 2, 2006, over a

year after the initial scheduled trial date. Ultimately, the Millenµamps secured a

favorable jury verdict of ü303,758.92 and counsel fees of ü100,158.75.

      Davisco appealed, and we reversed and remanded for a new trial. Millenµamp

v. Davisco Foods Int'l, Inc., 562 F.3d 971 (9th Cir. 2009). We did so because the

district court erred by admitting evidence, and instructing the jury, on Idaho feed

labeling requirements. Such requirements were irrelevant to the two warranty claims

alleged in the complaint. Significantly, we held that the result would have been

different had the Millenµamps alleged a cause of action for breach of warranty of

merchantability.

              The implied warranty of merchantability requires a
              merchant to properly label the items it sells. Idaho Code y
              282-314(2)(e). A failure to label under Idaho's Milµ
              Permeate Labeling Requirement may result in a breach of
              the implied warranty of merchantability, but the
              Millenµamps did not allege a breach of this warranty.
Id. at 977 n. 3.

      On remand, the Millenµamps did what any reasonable party would have done

in the circumstances. On May 19, 2009, a weeµ before the district court entered a new


                                          2
scheduling order, they promptly moved to amend their complaint to include a claim

for breach of warranty of merchantability. While the scheduling order set a new trial

date of November 17, 2009, and mirrored in many respects the provisions of the

original scheduling order, it did not contain any deadlines for amending the complaint.

Nevertheless, the magistrate judge denied the motion to amend on July 24, 2009,

holding that the original scheduling order (and later amendments) required any

amendment to the complaint to be made prior to August 2, 2004, unless the

Millenµamps showed good cause for the amendment, which he held that they had

failed to do so.

       The trial which followed resulted in a verdict for Davisco. The verdict not only

deprived the Millenµamps of the benefit of the initial judgment, but it also saddled

them with ü378,086.42 in legal fees, a sum that may do irreparable damage to this

family owned farm. On this appeal, they argue that they should have been allowed

to file an amended complaint, to correct the deficiency identified in our opinion

reversing the judgment in their favor. The majority affirms the denial of their motion

to file an amended complaint--a result for which there is no justifiable reason and

which will burden the Millenµamps with tens of thousands of dollars in additional

legal fees. Indeed, even the majority acµnowledges that it 'may have made a different

decision.' Majority Op. at 2. Nevertheless, it 'cannot say that the district court either


                                           3
based its decision on an erroneous view of the law or on clearly erroneous facts.' Id.

      I agree with the majority that a district court abuses its discretion as a matter of

law when 'it bases its decision on an incorrect view of the law or a clearly erroneous

finding of fact.' Majority Op. at 2 (citing Gonzales v. Free Speech Coalition, 408

F.3d 613, 618 (9th Cir. 2005)). This, however, is not the only standard for reviewing

a discretionary decision. The exercise of discretion ultimately involves the exercise

of judgment and an abuse of discretion may arise even where a judge correctly views

the law and the facts. Thus, as we have held, a reviewing court may reverse for abuse

of discretion if it 'has a definite and firm conviction that the district court committed

a clear error of judgment in the conclusion it reached upon a weighing of the relevant

factors.' Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1042 (9th Cir. 2003);

see also, United States v. Brooµe, 4 F.3d 1480, 1487 (9th Cir. 1993)

      Under either standard, the district court abused its discretion here. Passing over

the apparent willingness of the district court to extend repeatedly the pleading and trial

dates in the scheduling order, if both parties agreed, the stated purpose of the cutoff

date for amended pleadings was that '[a]ll parties are entitled to µnow the claims and

parties well before trial.' Scheduling Order at 1, Millenµamp v. Davisco Foods Int'l,

Inc., No. 03-439 (D. Idaho Mar. 10, 2004), ECF No. 14. The holding that this cutoff

date applied to a retrial after a reversal means that an error which we held could have


                                            4
been corrected by an amended complaint, could not be corrected even though the

correction could have been accomplished consistent with the stated purpose of the

cutoff date. Moreover, the fact that the scheduling order for the second trial, which

did not address the issue, was entered after the Millenµamps moved to file an

amended complaint, and which set a trial date six months after the motion was filed,

strongly argues against the farfetched notion that the original scheduling order

remained in place in the context of the unusual circumstances of this case.

      Perhaps more significantly, even if the original scheduling order applied, there

was plainly good cause for allowing the amended complaint to be filed. After all, the

motivation for the amended complaint was an error of law that was committed by the

district court judge, who erroneously admitted evidence and instructed the jury based

upon his assessment of the allegations in the complaint. While the Millenµamps'

attorney may have borne some responsibility for this error, this is not a case in which

the desire to file an amended complaint was an afterthought following the entry of a

final judgment. In a perfect world, such errors would not be made. Nevertheless, the

law has developed safety valves that include the exercise of informed discretion to

save parties from the injustice that would result from saddling them with the

consequences of good faith errors that cause little or no prejudice to the opposing

party. See United States v. Layton, 767 F.2d 549, 554 (9th Cir. 1985) ('Implicit in the


                                          5
creation of this discretionary power is the assumption that truth and justice cannot be

captured by mere language, but require the intervention of human sensibilities.')

(internal citation omitted).

      Significantly, in choosing a good cause standard for modifying a scheduling

order, the Advisory Committee deliberately chose a standard less demanding than the

manifest injustice standard for amending an 'order issued after a final pretrial

conference,' Fed. R. Civ. P. 16(e). The Committee did so because, 'the scheduling

order is entered early in the litigation,' Advisory Committee Note to Fed. R. Civ. P.

16(b)(4), and any more demanding test would cause the parties to 'fear that extensions

w[ould] not be granted [and] may encourage counsel to request the longest possible

periods for completing pleading, joinder, and discovery.' Id. The irony here is that

the wooden application of the good-cause standard, which the majority affirms, is

even more rigorous than the stricter manifest-injustice standard that the Advisory

Committee set as the standard for a motion to amend a final pretrial order.

      Nor can this result be justified by the dictum in the majority opinion that

'[e]ven under Rule 15, a district court does not abuse its discretion by denying

amendment after a final judgment when 'the movant present[s] no new facts but only

new theories and provide[s] no satisfactory explanation for his failure to fully develop

his contentions originally.'' Majority Op. at 3-4 (quoting Vincent v. Trend W.


                                           6
Technical Corp., 828 F.2d 563, 570-71 (9th Cir. 1987)) (emphasis added).

      Passing over the less-than-seamless cases upon which Vincent relies, and the

fact that it did not rely upon Rule 15, Vincent has nothing to do with this case because

it addresses the issue of an effort to amend a complaint after the entry of a final

judgment. A final judgment has yet to be entered in the present case. Our original

reversal contemplated a new trial and not a final judgment of dismissal, because the

district court admitted evidence and charged the jury in a way that resulted in a verdict

for the plaintiff. The only reason for the amendment was an oversight in drafting the

complaint. Indeed, in denying the Millenµamps' motion to amend, the United States

magistrate judge held that the exercise of his discretion was governed by Rule 16 and

simply stated that he 'will not now exercise [his] discretionary authority to allow

Plaintiffs to amend their complaint in order to raise a claim that was not pursued

initially from the outset of this action.' Order at 8, Millenµamp v. Davisco Foods Int'l,

Inc., No. 03-439 (D. Idaho July 24, 2009), ECF No. 235. No prejudice to the

defendant was cited, nor would the filing of an amended complaint have delayed the

trial date. Moreover, this is not a case in which the plaintiff seeµs to draw out the

proceedings with repeated amendments to the complaint. An amended complaint, if

followed by an adverse jury verdict, will add hundreds of thousands of dollars to the

already grossly inflated legal fees to which they are subject to under Idaho law.


                                           7
      Under the unique circumstances of this case, the denial of the motion to amend,

six months before the scheduled trial date (the latter of which the district court judge

seemed quite willing to extend repeatedly in deference to the joint agreement of the

parties) constituted an abuse of discretion. The affirmance of that holding constitutes

a manifest injustice.




                                           8
