Jason Lamberth, as father in his individual capacity v. Clark County School District

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON LAMBERTH, as father in his
individual capacity and estate representative
of H.L.; JENNIFER LAMBERTH, as
mother in her individual capacity and estate
representative of H.L.; J.L., brother of H.L.,
Plaintiffs-Appellants,
v.
CLARK COUNTY SCHOOL DISTRICT;
PAT SKORKOWSKY, in his official
capacity as CCSD Superintendent; ERIN A.
CRANOR; LINDA E. YOUNG; PATRICE
TEW; STAVAN CORBETT; CAROLYN
EDWARDS; CHRIS GARVEY; DEANNA
WRIGHT; ANDREA KATONA; RON
KAMMAN; APRIL BARR; SABREENA
ADAMS; KIM JEFFERSON; ANDRE
LONG; CCSD BOARD OF TRUSTEES;
THURMAN WHITE MIDDLE SCHOOL,
Defendants-Appellees.
No. 15-17546
D.C. No.
2:14-cv-02044-APG-GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted September 15, 2017
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: GOULD, TALLMAN, and WATFORD, Circuit Judges.
In this tragic case, after seventh grader H.L. committed suicide, her parents
Jason and Jennifer Lamberth and brother J.L. sued Clark County School District,
Thurman White Middle School, and various school officials (collectively “CCSD”)
for allegedly failing to protect H.L. from the bullying that her family claims led her
to take her life. The district court dismissed the Lamberths’ federal civil rights
claims because they accused CCSD only of inaction, not affirmative misconduct.
A month later, after the deadline for amending the pleadings, the Lamberths moved
to amend their complaint to allege new facts and add 27 new claims. The district
court denied this untimely motion. The Lamberths appeal the district court’s
dismissal of their federal claims and subsequent denial of their motion to amend.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The Lamberths’ complaint alleges that school officials knew H.L. was
regularly bullied in school, yet “fail[ed]” to properly report the bullying,
“ignoring” the school district’s policy and state law. After being bullied for about
three months, H.L. committed suicide. She left behind a note requesting that
someone tell her school about her suicide so that other students might not be
bullied in the future. We accept these factual allegations as true and construe the
complaint in the light most favorable to the Lamberths. See Manzarek v. St. Paul
Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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The Lamberths contend they adequately pled that CCSD engaged in
affirmative conduct that placed H.L. in harm’s way, satisfying the state-created
danger exception to the general rule that a state is not liable for its omissions. See
Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72 (9th Cir. 2011). We disagree. By
its terms, the original complaint accuses CCSD only of inaction—not wrongful
affirmative conduct. The complaint does not allege that CCSD took any steps to
expose H.L. to a danger she did not already face. See Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). Nor do the Lamberths’ attempts
to portray CCSD’s alleged omissions as intentional decisions turn these omissions
into affirmative exercises of the state’s power. See DeShaney v. Winnebago Cty.
Dep’t of Soc. Servs., 489 U.S. 189, 196–97 (1989). Our review on appeal of a
motion to dismiss is limited to the operative complaint that was before the district
court. See Garmon v. Cty. of Los Angeles, 828 F.3d 837, 842 (9th Cir. 2016). So
we do not address the additional allegations found only in the Lamberths’ proposed
amended complaint.
The Lamberths also contend that the district court erred in denying their
motion to amend the complaint. The Lamberths could not reserve the right to file a
motion and have it deemed timely merely by including a single-sentence request
for leave to amend at the end of their brief in opposition to the motion to dismiss.
Instead, a request for leave to amend “must be made by motion” and must “state

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with particularity the grounds for seeking” an order granting leave to amend. Fed.
R. Civ. P. 7(b)(1). The Lamberths’ first and only proper motion for leave to amend
was filed after the dismissal of their complaint, months after the deadline to amend
the pleadings that was set by the scheduling order.
Once the pleadings amendment deadline has passed, a moving party must
satisfy Federal Rule of Civil Procedure 16(b)’s “good cause” standard to change
the scheduling order’s deadlines before a court will consider on the merits whether
Rule 15(a)’s liberal amendment standard has been satisfied. See Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Rule 16(b)’s
good cause standard “primarily considers the diligence of the party seeking the
amendment.” Id. at 609. Good cause will be shown if a scheduling order’s
deadline “cannot reasonably be met despite the diligence of the party seeking the
extension.” Id. (citation omitted). “If that party was not diligent, the inquiry
should end.” Id.
The Lamberths’ motion was made three and a half months after the cut-off
date for amendment had expired. Yet the Lamberths waited two months after
discovery opened before propounding any written discovery, giving themselves
less than a month to receive responses and consider amending their complaint
before the deadline. They also waited five months before taking their first
deposition, nearly two months after this amendment deadline. The Lamberths do

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not explain why they could not have sought discovery or have taken depositions
earlier, or why they could not seek an extension of the amendment deadline until
months after it had passed. The district court did not clearly err in finding no
showing of good cause to change the scheduling order’s amendment deadline, see
id. at 610, and there was no abuse of discretion in denying the Lamberths’
untimely motion to amend.
The Lamberths’ arguments that they nevertheless have shown good cause
for late amendment are unpersuasive. If the Lamberths wanted to conserve judicial
resources because of the pending motion to dismiss, they could have amended as
of right within 21 days of service of the motion. See Fed. R. Civ. P. 15(a)(1)(B).
Instead, by waiting, the Lamberths risked that their case would be dismissed and
that they would lose the opportunity to amend. Moreover, the scheduling order’s
statement that the amendment deadline “may” be altered by the district court does
not help the Lamberths because the court declined to exercise its power to do that
here based on this untimely request.
For these reasons, we affirm the district court’s dismissal of the Lamberths’
federal claims and its subsequent denial of their motion to amend. Costs are
awarded to the Appellees.
AFFIRMED.

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