Upton v. Corizon Health Care Incorporated

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE

         Pending 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 Plaintiff's Motion.

         I. BACKGROUND

         On May 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.^[1] (Doc. 10 at 1). The deadline for amendment of pleadings passed without Plaintiff offering any proposed amendment.

         On 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.^[2](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. (Doc. 24).

         On 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.).

         After ordering the parties to complete expedited briefing on Plaintiff's Motion, ^[3] (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).

         II. ANALYSIS

         Generally, 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).

         A. Rule 16

         Under 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)).

         Federal 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 ...