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Gause v. Indy

United States District Court, D. Arizona

September 28, 2016

Richard LeGrand Gause, Plaintiff,
v.
Unknown Indy, et al., Defendants.

          ORDER

          Eileen S. Willett United States Magistrate Judge

         Pending before the Court are a number of motions, which the Court has reviewed and rules on as set forth below.

         I. DISCUSSION

         A. Plaintiff's “Motion Requesting Leave to make 2nd Amendment to complaint” (Doc. 88) and Defendants Ende and Rojas' “Motion for Leave to File Sur-Reply to Plaintiff's Second Motion to Amend (Doc. 88)” (Doc. 118)

         On May 16, 2016, pursuant to Federal Rule of Civil Procedure 16(b) and Local Rule of Civil Procedure (“LRCiv”) 16.2(b)(2), the Court issued a Scheduling Order (Doc. 19). The Court set July 15, 2016 as the deadline for filing a motion to amend the First Amended Complaint (Doc. 8). (Doc. 19 at 4). 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 v. Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th Cir. 1992) (“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).

         Almost a month after the applicable deadline, Plaintiff filed a “Motion Requesting leave to make 2nd Amendment to complaint” (Doc. 88). 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).

         In their Response (Doc. 104), Defendants Ende and Rojas note that Plaintiff's Motion (Doc. 88) fails to comply with LRCiv 15.1. Attached to Plaintiff's Reply (Doc. 107)[2] is a proposed Second Amended Complaint. Defendants Ende and Rojas move for leave to file a sur-reply. To the extent that a party raises a new argument or proffers new evidence and information in a reply brief, that argument or evidence is improper because the opposing party is deprived of an opportunity to respond. See Tovar v. United States Postal Service, 3 F.3d 1271, 1273 n.3 (9th Cir. 1993). A court cannot consider new evidence provided in a reply when the other party does not have an opportunity to respond to the evidence. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). Granting leave to file a sur-reply therefore is generally appropriate when a party raises new issues or new evidence in a reply brief. Because Plaintiff's Reply attached a copy of the proposed Second Amended Complaint, which had not previously been submitted, the Court will grant Defendants Ende and Rojas' Motion (Doc. 118). The Court has considered the sur-reply attached to the Motion. (Doc. 118-1 at 2-9).

         As the proposed Second Amended Complaint attached to Plaintiff's Reply does not indicate how it differs from the First Amended Complaint, Plaintiff has failed to comply with LRCiv 15.1. Plaintiff's failure to comply with LRCiv 15.1(a) hinders the Court's ability to compare the First Amended Complaint to the proposed Second Amended Complaint. Plaintiff's untimely Motion (Doc. 88) will be denied.

         B. Plaintiff's “Motion Requesting to be appointed counsel” (Doc. 106)

         On June 7, 2016, the Court denied Plaintiff's request for court-appointed counsel after finding that Plaintiff has not shown that exceptional circumstances are present that would require the appointment of counsel. (Doc. 25 at 1-2). In his September 7, 2016 Motion (Doc. 106), Petitioner again requests court-appointed counsel. However, Petitioner still has not shown the presence of exceptional circumstances warranting the appointment of counsel. Plaintiff's Motion (Doc. 106) will be denied.

         C. Plaintiff's “Addittional [sic] Discovery Disclosure” (Doc. 108)

         Attached to Plaintiff's September 9, 2016 “Addittional [sic] Discovery Disclosure” (Doc. 108) are information sheets on certain medications. Federal Rule of Civil Procedure 5(d) prohibits the filing of disclosures until they are used in the proceeding or the Court orders filing. However, LRCiv 5.2 requires the filing of a “Notice of Service” of disclosures. Because Petitioner has not yet “used” the medication information sheets in this proceeding, the filing of the “Addittional [sic] Discovery Disclosure” (Doc. 108) instead of a “Notice of Service” ...


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