United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Plaintiff William Lanny Upton's
(“Plaintiff”) Motion to Amend Complaint
(hereinafter, “Motion”) (Doc. 36), to which
Defendant Corizon Health Care Incorporated
(“Defendant”) filed a Response (Doc. 40), and
Plaintiff filed a Reply (Doc. 54).
August 21, 2017 the Court issued a Scheduling Order which set
October 17, 2017 as the deadline for amendment of pleadings.
(Doc. 10 at 1). “[O]nce the district court has filed a
pretrial scheduling order pursuant to Rule 16 which
establishes a timetable for amending pleadings, a motion
seeking to amend pleadings is governed first by Rule 16(b),
and only secondarily by Rule 15(a).” Jackson v.
Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999)
(citing Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607-08 (9th Cir. 1992)). Therefore, a party seeking
leave to amend their complaint after the deadline contained
in a scheduling order has passed should first move the court
to modify that scheduling order. See Johnson, 975
F.2d at 608-09 (explaining that the Ninth Circuit Court of
Appeals does not view a motion to amend the complaint as a
motion to modify the scheduling order). Under Rule 16, a
scheduling order “may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P.
though the Scheduling Order's October 17, 2017 deadline
for amendments had passed, Plaintiff's Motion did not
request that the Court modify the Scheduling Order, nor
discuss whether Plaintiff has demonstrated “good
cause” justifying the amendment pursuant to Rule 16(b).
(See Doc. 36). Rather, Plaintiff solely moved to
amend his Complaint pursuant to Rule 15(a)(2). (See
id.). In its Response, Defendant also failed to raise
the correct legal standard and, instead, argued that
Plaintiff's Motion should be denied as untimely and for
its failure to comply with Rule 15(a)(2) and LRCiv 15.1(a).
(See Doc. 40). Only in his Reply does Plaintiff
argue that he has “good cause” for the proposed
amendment. (See Doc. 54). However, in arguing that
Plaintiff has “good cause” for the proposed
amendment to his Complaint, Plaintiff makes new arguments
which it did not raise in its Motion and which Defendant has
not had the opportunity to respond to. For this reason,
the Court will order Defendant to file a surreply responding
to the new arguments which Plaintiff makes in its Reply.
Court grants Plaintiff leave to amend, the Court is, at
present, disinclined to modify the deadlines respective to
trial. Plaintiff's proposed amendment alleges that
Defendant “continued a pattern and practice of
deliberate indifference through the time that this matter was
pending before this Court.” (Doc. 36 at 2). In an
attempt to demonstrate the ongoing nature of the violation,
Plaintiff's amendment covers the 267-day period from May
18, 2017,  the date of Plaintiff's alleged last
treatment with Dr. Rakkar, through Plaintiff's alleged
restarting of chemotherapy with Dr. Chang on February 9,
2018. (Docs. 36 at 2; 36-1 at 5). Although Defendant requests
that the Court extend the deadlines respective to trial so
that Defendant “may adequately prepare for its defense
of this brand new claim[, ]” (Doc. 40 at 10), it is
unclear to the Court what further discovery or preparation
Defendant could possibly need. As the contractor responsible
for providing healthcare to inmates (including Plaintiff),
Defendant clearly already has access to Plaintiffs medical
records covering the 267-day time frame Plaintiff seeks to
add to his Complaint. Indeed, Plaintiffs counsel received the
medical records covering this time frame from counsel for
Defendant, (Doc. 54-1 ¶¶ 4-5), and Defendant even
previously submitted clinical records covering this time
frame along with its Motion for Summary Judgment,
(see Doc. 40 at 3 (“Out of an abundance of
caution, because Plaintiff s requested relief was slightly
ambiguous in terms of the declaratory relief sought, Corizon
incorporated Plaintiffs clinical records from April 18, 2017
through April 5, 2018 to demonstrate Plaintiffs extensive,
ongoing course of care.”)). It further appears to the
Court that this situation is not unlike that of a personal
injury case where a plaintiffs medical needs, treatments, and
suffering may continue well past the cut-off for discovery.
Therefore, it is difficult for the Court to appreciate what
possible prejudice Defendant might incur if the Court were to
grant Plaintiffs Motion but not modify the deadlines
respective to trial.
IT IS ORDERED that Defendant file a surreply
by Monday, February 11, 2019 at 8:00 a.m.
responding to the new arguments raised in Plaintiffs Reply
(Doc. 54) and discussing specifically what further discovery
or preparation Defendant will need if the Court were to grant
Plaintiffs Motion to Amend Complaint (Doc. 36).
IS FURTHER ORDERED that all deadlines respective to
trial remain in force at this time.
 Arguments made for the first time in a
reply are generally waived. U.S. v. Romm, 455 F.3d
990, 997 (9th Cir. 2006).
 Notably, Plaintiff filed his Complaint
on May 17, 2017. (See Doc. 1).
 The Court is not now granting
Plaintiffs Motion to Amend Complaint ...