United States District Court, D. Arizona
S. Willett United States Magistrate Judge
before the Court are a number of motions, which the Court has
reviewed and rules on as set forth below.
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)
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). 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.
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).
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.
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,
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.
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).
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.
Plaintiff's “Motion Requesting to be appointed
counsel” (Doc. 106)
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.
Plaintiff's “Addittional [sic] Discovery
Disclosure” (Doc. 108)
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” ...