United States District Court, D. Arizona
LAURIE MILLER, BRIAN DIMAS, KIM MILLS, ANTHONY SOZA, BRUCE CAMPBELL, KELLIE BOWERS, TIM HUNTER, BRIAN SAYLOR, MICHAEL SCHAMADAN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HIS WIFE, BRANDI SCHAMADAN, Plaintiffs,
YORK RISK SERVICES GROUP, Defendant.
ORDER AND OPINION [Re: Motion at docket 64]
JOHN W. SEDWICK, District Judge.
I. MOTION PRESENTED
At Docket 64, plaintiffs Laurie Miller, Brian Dimas, Kim Mills, Anthony Soza, Bruce Campbell, Kellie Bowers, Tim Hunter, Brian Saylor, and Michael Schamadan, individually and as representative of the estate of his wife, Brandi Schamadan, (collectively "Plaintiffs") move pursuant to Rules 15 and 16(b) for permission to file an amended complaint. At docket 79, defendant York Risk Services Group ("Defendant") responds. No reply has been filed. Oral argument was not requested and would not assist the court.
Plaintiffs are or were employed by The City of Phoenix ("City") fire department as firefighters or engineers. Defendant adjusts workers' compensation claims made by City employees. In their First Amended Complaint,  Plaintiffs alleged that they sustained serious injuries or illnesses at work and filed workers' compensation claims. Plaintiffs also alleged that Defendant, with assistance from certain City employees, wrongfully denied or delayed payment of workers' compensation benefits.
The First Amended Complaint pleads two claims against Defendant. First, it alleges that Defendant, acting in concert with the City, fraudulently denied Plaintiffs' workers' compensation benefits in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, 1964, and 1965. Second, it alleg es that Defendant violated Arizona law by aiding and abetting the City's breach of its duty of good faith and fair dealing. Defendant moved to dismiss both claims. The court denied the motion in general, but granted some relief as to Michael Schamadan's claims. The court allowed Plaintiffs to file a further complaint refining the Shamadan claims. A Second Amended Complaint setting forth the same claims as the First Amended Complaint and refining the Shamadan claims was filed at docket 28.
In the meantime, the court filed a Scheduling and Planning Order which set February 28, 2014, as the deadline for filing amended pleadings. Plaintiffs timely filed a motion to amend their complaint on February 28, 2014, at docket 49. Their proposed amended complaint would add The Frank Gates Services Company d/b/a Avizent Risk ("Avizent") as a defendant. Plaintiffs also proposed to add a claim for intentional infliction of emotional distress ("IIED") against both Avizent and York. On March 14, 2014, York filed an opposition to the motion to amend. Five days later Plaintiffs withdrew the pending motion to amend,  and filed a new motion to amend at docket 64. The motion at docket 64 proposes to add Avizent as a defendant, to include IIED claims, and to add Phoenix police detective Joie Klages ("Klages") as a plaintiff. Plaintiffs assert that Klages suffered an on-the-job injury which resulted in a wrongful denial of her claim for workers' compensation benefits. Klages did not contact Plaintiffs' counsel until March 5, 2014, several days after the timely motion to amend at docket 49 had been filed.
III. STANDARD OF REVIEW
A. Rule 16(b)
After a district court has filed a scheduling order setting a deadline for amending pleadings, the standards of Rule16(b) must be considered. Rule 16(b)(4) provides that a scheduling order "may be modified only for good cause and with the judge's consent." "Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s good cause' standard primarily considers the diligence of the party seeking the amendment." Id. at 609.
B. Rule 15
Rule 15 governs motions to amend. After a responsive pleading is served, a party may file an amended complaint "only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Grant or denial is vested in the trial court's discretion. Ordinarily, leave should be granted unless the amendment follows undue delay, seeks to inject an improper claim, unfairly prejudices the opposing party, or threatens to unduly increase discovery or delay trial. The Ninth Circuit assesses five factors in determining whether amendment should be granted or denied: "(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended her complaint."
A. Rule 16(b) does not foreclose ...