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). Because the
parties' briefs were adequate for the Court to resolve
the issues arising in Plaintiff's Motion, the Court finds
this matter appropriate for decision without oral argument.
See LRCiv 7.2(f). The Court now rules on
17, 2017, Plaintiff filed a pro se Prisoner Civil
Rights Complaint pursuant to 42 U.S.C. § 1983 alleging
that Defendant acted with deliberate indifference to his
serious medical needs, including a right wrist injury and
recurrent myeloma/lymphoma. (Doc. 1 at 1, 3). On screening
under 28 U.S.C. § 1915A(a), the Court determined that
Plaintiff stated an Eighth Amendment medical care claim
against Defendant and directed Defendant to answer the claims
against it. (Doc. 5). Defendant filed an Answer on August 18,
2017 denying that it refused Plaintiff adequate medical care
or acted with deliberate indifference to Plaintiff's
alleged medical conditions. (Doc. 2). On August 21, 2017, the
Magistrate Judge issued a Scheduling Order setting October
17, 2017 as the deadline for amendment of
pleadings. (Doc. 10 at 1). The deadline for amendment
of pleadings passed without Plaintiff offering any proposed
April 30, 2018, Defendant filed a Motion for Summary Judgment
asking that the Court dismiss Plaintiff's claim against
Defendant with prejudice because Plaintiff failed to present
any evidence supporting his Eighth Amendment deliberate
indifference claim and because the course of medical care and
treatment given to Plaintiff was appropriate.(Doc. 17 at 1, 23;
see Doc. 14). Despite the May 8, 2018 Order
directing Plaintiff to respond by June 8, 2018, Plaintiff
failed to file any response to Defendant's Motion for
Summary Judgment. In an Order dated September 13, 2018, the
Court granted Defendant's motion as to Plaintiff's
claim regarding his fractured wrist, thereby dismissing that
claim. (Doc. 20 at 31). However, the Court denied
Defendant's Motion for Summary Judgment as to
Plaintiff's claim concerning his cancer treatment for
recurrent myeloma/lymphoma. (Id.). Following the
Court's Order ruling on Defendant's Motion for
Summary Judgment, the Court appointed counsel to represent
Plaintiff in this matter on October 5, 2018. (Doc. 21).
Thereafter, the Court set the Final Pretrial Conference for
February 27, 2019 and set Trial to begin on March 11, 2019.
January 24, 2019, Plaintiff, through counsel, filed a Motion
to Amend Complaint. (Doc. 36). Plaintiff seeks leave to amend
his Complaint to add a second count alleging an ongoing
pattern of deliberate indifference to his recurrent
myeloma/lymphoma covering 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). Even 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
Fed.R.Civ.P. (“Rule”) 16(b). (See Doc.
36). Rather, Plaintiff solely moved to amend his Complaint
pursuant to Rule 15(a)(2). (See id.).
ordering the parties to complete expedited briefing on
Plaintiff's Motion,  (see Doc. 37), Defendant filed
a Response on January 31, 2019 opposing Plaintiff's
Motion as untimely and for its failure to comply with Rule
15(a)(2) and LRCiv 15.1(a). (Doc. 40). Alternatively,
Defendant seeks extension of the deadlines respective to
trial. (Id.). On February 4, 2019, Plaintiff filed a
Reply in support of his Motion, arguing that Plaintiff has
“good cause” for the proposed amendment and
making new arguments which he did not raise in his original
Motion. (Doc. 54). To give Defendant the opportunity to
respond, the Court ordered Defendant to file a surreply
addressing the new arguments which Plaintiff made in its
Reply and discussing specifically what further discovery or
preparation Defendant would need if the Court were to grant
Plaintiff's Motion. (Doc. 55). Defendant filed this
Surreply on February 11, 2019. (Doc. 61).
Rule 15(a) governs a motion to amend pleadings to add claims
or parties. However, Rule 16 also applies because Plaintiff
filed his request to amend his Complaint after the Rule 16
Scheduling Order's deadline for amendments passed.
See Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 607 (9th Cir. 1992); (Doc. 10 at 1 (“Motions . . .
for leave to amend pleadings shall be filed by October 17,
2017.”)). “[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, 975 F.2d at 607-08). To permit a
party to disregard a Rule 16 order by an appeal to the
standards of Rule 15 would “undermine the court's
ability to control its docket, disrupt the agreed-upon course
of the litigation, and reward the indolent and the
cavalier.” Johnson, 975 F.2d at 610; see
also Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419
(11th Cir. 1998) (“If [the court] considered only Rule
15(a) without regard to Rule 16(b), [it] would render
scheduling orders meaningless and effectively would read Rule
16(b) and its good cause requirement out of the Federal Rules
of Civil Procedure.”). Accordingly, the Court will
evaluate Plaintiff's motion first under Rule 16, and
then, if necessary, under Rule 15(a).
Rule 16, a scheduling order “may be modified only for
good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4). Under the “good cause”
standard, “[t]he pretrial schedule may be modified if
it cannot reasonably be met despite the diligence of the
party seeking the extension. If the party seeking the
modification was not diligent, the inquiry should end and the
motion to modify should not be granted.” Zivkovic
v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.
2002) (internal quotation marks and citation omitted).
“Although the existence or degree of prejudice to the
party opposing the modification might supply additional
reasons to deny a motion, the focus of the inquiry is upon
the moving party's reasons for seeking
modification.” Johnson, 975 F.2d at 609
(citing Gestetner Corp. v. Case Equip. Co., 108
F.R.D. 138, 141 (D. Me 1985)).
courts in Arizona and within the Ninth Circuit “have
articulated and undertaken [a] three-step inquiry in
resolving the question of diligence in the context of
determining good cause under Rule 16[.]” Morgal v.
Maricopa County Bd. of Supervisors, 284 F.R.D. 452, 460
(D. Ariz. June 6, 2012) (citations omitted) (quoting
Grant v. United States, 2011 WL 5554878, at *4 (E.D.
Cal. Nov. 15, 2011), adopted by, 2012 WL 218959, at * 1 (E.D.
Cal. Jan. 23, 2012)). Under this inquiry, the movant may be
required to show:
(1) that he was diligent in assisting the court in creating a
workable Rule 16 order; (2) that his noncompliance with a
Rule 16 deadline occurred or will occur, notwithstanding his
diligent efforts to comply, because of the development of
matters which could not have been reasonably foreseen or
anticipated at the time of the Rule 16 scheduling conference;
and (3) that he was diligent in seeking ...