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Rodrigues v. Ryan

United States District Court, D. Arizona

August 26, 2016

Anthony L Rodrigues, Plaintiff,
v.
Charles L Ryan, et al., Defendants.

          ORDER

          Eileen S. Willctt, United States Magistrate Judge

         The Court has reviewed Plaintiff's “Rule 15(d) Motion for Leave to Supplement Original Pleading” (Doc. 139), Plaintiff's “Motion to Compel Discovery” (Doc. 130), and Defendants' “Expedited Motion to Quash Plaintiff's Twenty-Two Subpoenas to Third Parties” (Doc. 161). The Court rules on the Motions as set forth herein.

         A. Plaintiff's “Rule 15(d) Motion for Leave to Supplement Original Pleading” (Doc. 139)

         On June 17, 2016, Plaintiff filed a Motion (Doc. 139) seeking leave to “supplement the original pleading” pursuant to Rule 15(d) of the Federal Rules of Civil Procedure. In conjunction with the Motion, Plaintiff lodged a “Supplemental Civil Rights Complaint” (Doc. 140) that is written on the Court's civil rights complaint form. The “Supplemental Civil Rights Complaint” names additional defendants not named in the Second Amended Complaint, sets forth a third count for relief not previously raised, and contains substantial amendments to Counts I and II. Defendants oppose Plaintiff's Motion, contending that it “is actually a defective motion to amend” Plaintiff's Second Amended Complaint (Doc. 15). (Doc. 150 at 1). In his Reply, Plaintiff asserts that his Motion was properly brought pursuant to Rule 15(d) because the Second Amended Complaint was filed “prior to the Plaintiff having exhausted administrative remedies in the first of two (2) ADOC inmate grievances, the events of which give rise to the subject matter set forth in Plaintiff's supplemental pleading.” (Doc. 162 at 3).

         A supplemental complaint is different than an amended complaint. Amended pleadings under Rule 15(a) “relate to matters that occurred prior to the filing of the original pleading, and entirely replace the earlier pleading.” 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1504 (3d. ed. 1998). In contrast, supplemental pleadings under Rule 15(d) “deal with events subsequent to the pleading to be altered and represent additions to or continuations of the earlier pleadings.” Id.

         Plaintiff's proposed “Supplemental Civil Rights Complaint” (Doc. 140) not only adds claims occurring after the April 20, 2015 Second Amended Complaint (Doc. 15), but contains substantial and material amendments to claims and allegations occurring before the Second Amended Complaint was filed. As such, the “Supplemental Civil Rights Complaint” is not a supplement, but a wholesale amendment of the Second Amended Complaint. Accordingly, the Court deems Plaintiff's Motion (Doc. 139) as a motion to amend the Second Amended Complaint (Doc. 15) pursuant to Federal Rule of Civil Procedure 15(a).

         On October 23, 2015, pursuant to Federal Rule of Civil Procedure 16(b), the Court issued a Scheduling Order (Doc. 25). The Court set November 23, 2015 as the deadline for filing a motion to amend the Second Amended Complaint (Doc. 15). (Doc. 35 at 3). A Rule 16 scheduling order may be “modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). Once a district court has filed a Rule 16 scheduling order setting a deadline for amending pleadings, a motion seeking to amend pleadings is governed first by Rule 16(b) and only secondarily by Rule 15(a).[1] Johnson, 975 F.2d at 607-09 (“A court's evaluation of good cause is not coextensive with an inquiry into the propriety of the amendment under . . . Rule 15.”); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). The standards of review under Rules 15 and 16 are markedly different. “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.” Johnson, 975 F.2d. at 609. Although prejudice to the opposing party can be an additional reason to deny a motion to amend under Rule 16, the focus of the inquiry is on the movant's reasons for seeking modification. Id. If the movant “was not diligent, the inquiry should end.” Id.

         In addition, Ninth Circuit case law supports a district court's denial of a motion filed after the applicable scheduling order deadline on the ground that the movant did not request to modify the deadline. Johnson, 975 F.2d at 608 (“Johnson did not specifically request that the court modify its scheduling order; he merely moved to amend his complaint. He points out that some courts have considered a motion to amend the complaint as a motion to amend the scheduling order and the court's denial of that motion a denial of a motion to amend the scheduling order. . . . We have suggested the contrary.”); U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985) (holding that a district court properly denied a motion as untimely where it was filed after the applicable scheduling order deadline and the movant “never requested a modification” of the scheduling order), superseded by statute on other grounds as recognized in Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996); Dedge v. Kendrick, 849 F.2d 1398, 1398 (11th Cir. 1988) (holding that a district court properly denied a motion as untimely where the motion was filed after the deadline set forth in the scheduling order and the movant did not request a modification of the scheduling order).

         Plaintiff filed his Motion (Doc. 139) almost seven months after the November 23, 2015 deadline for filing motions to amend the complaint and to join additional parties. (Doc. 35 at 3). The Motion may be denied solely on the basis that it is untimely. Johnson, 975 F.2d at 608; U.S. Dominator, Inc., 768 F.2d at 1104; Dedge, 849 F.2d at 1398. Denial of the Motion is warranted even if it is deemed as a de facto motion to modify the Scheduling Order. Because the Motion was filed after the deadline, Plaintiff cannot “appeal to the liberal amendment procedures afforded by Rule 15; his tardy motion [has] to satisfy the more stringent ‘good cause' showing required under Rule 16.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 952 (9th Cir. 2006) (emphasis in original). Plaintiff has failed to show the diligence and good cause necessary for the Court to deviate from its Rule 16 Scheduling Order.

         Further, LRCiv 15.1 requires a party moving to amend a complaint to file a copy of the amended pleading indicating “in what respect it differs from the pleading which it amends, by bracketing or striking through the text to be deleted and underlining the text to be added.” The District Court of Arizona routinely denies parties the opportunity to amend a complaint for failure to comply with LRCiv 15.1. See, e.g., Bivins v. Ryan, No. CV-12-1097-PHX-ROS (LOA), 2013 WL 321847, at *4 (D. Ariz. Jan. 28, 2013); Huminski v. Heretia, No. CV11-0896-PHX-DGC, 2011 WL 2910536, at *1 (D. Ariz. July 18, 2011); Miles v. King, No. CV-13-370-PHX-SRB (LOA), 2013 WL 5526997 (D. Ariz. Oct. 7, 2013). Plaintiff has failed to comply with LRCiv 15.1, and that failure serves as another basis for denying Plaintiff's Motion (Doc. 139).

         For the above reasons, Plaintiff's “Rule 15(d) Motion for Leave to Supplement Original Pleading” (Doc. 139) is denied with leave to file a motion to supplement the Second Amended Complaint (Doc. 15) pursuant to Federal Rule of Civil Procedure 15(d). If Plaintiff chooses to file the motion, Plaintiff shall attach to the motion a proposed supplemental pleading that contains only claims arising after April 20, 2015. Plaintiff is cautioned that “[w]hile leave to permit supplemental pleading is favored, it cannot be used to introduce a separate, distinct and new cause of action” that should have been the subject of a separate suit. Planned Parenthood of Southern Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997).

         B. Plaintiff's “Motion to Compel Discovery” (Doc. 130)

         Rule 37.1 of the Local Rules of Civil Procedure (“LRCiv”) requires a party moving for an order compelling discovery to “set forth, separately from a memorandum of law, the following in separate, distinct, numbered paragraphs:

(1) the question propounded, the interrogatory submitted, the designation requested or the ...

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