Morgal v. Arpaio et al

Filing 152

ORDER, Plaintiff shall have 30 days to file a Response to Defendant's 142 MOTION for Summary Judgment; within 15 days after service of Plaintiff's Response, if any, the Defenant may file a Reply, if any. Signed by Senior Judge Robert C Broomfield on 6/5/12. (Attachments: # 1 Copy of Order #143)(REW)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Allan Kenneth Morgal, Plaintiff, 13 vs. 14 15 Maricopa County Board of Supervisors, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) No. CIV 07-0670-PHX-RCB O R D E R On April 3, 2012, the Honorable Edward C. Voss, United 19 States Magistrate Judge (“the Magistrate Judge”), denied 20 plaintiff’s Motion for Leave to File a[n] Amended Complaint 21 (Doc. 140). 22 before the court are plaintiff pro se Allan K. Morgal’s 23 timely filed objections to that denial (Doc. 147). Currently pending Background 24 25 Ord. (Doc. 144) at 2:16-171. Assuming familiarity with the prior proceedings, as 26 27 28 1 For ease of reference, all citations to page numbers of docketed items are to the page assigned by the court's case management and electronic case filing (CM/ECF) system. 1 relevant here, it is only necessary to recount what 2 transpired on appeal to the Ninth Circuit Court of Appeals 3 and thereafter. 4 The district court granted summary judgment in favor of, 5 among others, the defendant Maricopa County Board of 6 Supervisors (“the Board”). 7 reasoned that plaintiff, who is challenging healthcare 8 services at two Maricopa County jails, did not present any 9 “evidence of a pervasive County policy of denying adequate In so doing, the district court Memo. (Doc. 122-1) at 3.2 The district court 10 medical care.” 11 held that its grant of summary judgment “rendered moot[]” 12 four pending motions in limine and plaintiff’s “Motion to 13 Conduct In Camera Review[.]” Ord. (Doc. 116) at 11:10-16. On his pro se appeal, the Ninth Circuit found that 14 15 “[w]hen the district court granted summary judgment for the 16 [Board],” plaintiff “had under submission five requests that 17 the district court order the [Board] to produce a specified 18 official report purporting to identify specific systemic 19 problems with healthcare services at the Maricopa County 20 Jail.” 21 Morgal “submitted” to the Ninth Circuit “a copy of a document 22 dated February 24, 2006 entitled ‘Revised Accreditation 23 Report on the Health Care Services at Maricopa County 24 Sheriffs [sic] Office-Detention Bureau’ and naming the 25 National Commission on Correctional Health Care [(“NCCHC”)] 26 as the author.” Memo. (Doc. 122-1) at 2-3. Id. at 3 n. 1. In that regard, plaintiff The Ninth Circuit 27 2 28 After Judge Murguia’s elevation to the Ninth Circuit Court of Appeals, the present case was reassigned to this court. Doc. 126. - 2 - 1 “supplement[ed] the record to include th[at] [2006 NCCHC 2 report] only for the limited purpose of identifying it as the 3 subject of Morgal’s discovery submissions to the district 4 court[.]” 5 those five unresolved discovery “requests,” the Ninth Circuit 6 held that summary judgment in the Board’s favor was improper. 7 That Court thus “vacate[d] and remand[ed] for further 8 proceedings, including, if applicable, resolution of any 9 discovery request by either party relating to the [February Id. at 3 n. 1 (citation omitted). Id. at 3. In light of The Ninth Circuit’s 10 24, 2006] NCCHC report.” 11 memorandum was filed on July 8, 2011, and the judgment took 12 effect that date. 13 17313) at 1. 14 8, 2011. 15 See Docs. 122-1; and Mandate (No. 09- The mandate did not issue though until August More than a month later, on September 15, 2011, plaintiff 16 filed three separate motions, including a motion to re-open 17 discovery, which had been closed since March 26, 2008. 18 Ord. (Doc. 12) at 2, ¶ 6. 19 was plaintiff’s claim that the “discovery” of the 2006 NCCHC 20 report “led to relevant material facts requiring [the] 21 depositions” of two former directors of Correctional Health 22 Services (“CHS”), a Supervisors member, the head of the 23 Office of Management and Budget, and the Deputy County 24 Manager. 25 Magistrate Judge observed that the plaintiff just as easily 26 could have taken the depositions of those individuals 27 earlier, “during the discovery phase[.]” 28 2:17. See The primary basis for that motion Mot. (Doc. 123) at 2. In denying that motion, the Ord. (Doc. 133) at Furthermore, plaintiff did not offer any reason why he - 3 - 1 did not do that. The Magistrate Judge also explained that 2 “[p]laintiff’s recent receipt of the NCCHC report did nothing 3 [to] change what he needs to prove to prevail in this action 4 and thus provides no basis to re-open discovery to allow 5 these additional depositions.” Ord. (Doc. 133) at 2:14-16. On December 19, 2012, approximately eleven days after 6 7 denial of that motion to re-open discovery, plaintiff filed a 8 motion seeking leave to file an amended complaint pursuant to 9 Fed.R.Civ.P. 15(a). See Mot. (Doc. 134) at 1. Plaintiff 10 filed that motion even though, pursuant to the Rule 16 11 Scheduling and Discovery Order (“Rule 16 Order”), the 12 deadline for amending the complaint was October 26, 2007. 13 See 14 plaintiff claimed, as he had before, that the defendant was 15 “misle[a]d[ing] the Court as to the dating of the [NCCHC] 16 report and its contents.” 17 likewise argued, again, as he had previously, that the 18 defendant should not “be rewarded” for purportedly not 19 “disclosing relevant documentation[,]” such as the 2006 NCCHC 20 report, “that was requested prior to the close of discovery.” 21 Id. at 2 and 1. 22 complaint to include the following “facts and others[:]” 23 24 25 26 27 28 Ord. (Doc. 12) at 2, ¶ 4. In seeking leave to amend, Mot. (doc. 134) at 1. Plaintiff Plaintiff sought leave to amend his The [2006 NCCHC] report illustrated that the . . . Supervisors were well aware of problems with medical treatment at the county jails. [The Supervisors] w[ere] well aware of staff shortages that fell below federal guidelines and did nothing to correct the problem. Defendant states that the accreditation with NCCHC was in good standing when in fact during the timeframes [sic] of the complaint the County Jails were placed on probation and the accreditation was later completely - 4 - rescinded. 1 2 Id. at 2. 3 denied plaintiff’s request fo file an amended complaint 4 because plaintiff did not attach as an exhibit “a copy of the 5 proposed amended pleading[]” as LRCiv 15.1 requires. 6 Ord. (Doc. 139) at 1:21-22. 7 The Magistrate Judge, agreeing with the defendant, See Roughly two weeks after the denial of that request to 8 amend, on February 21, 2012, plaintiff again sought leave to 9 amend his complaint. The asserted basis for amendment was 10 plaintiff’s claim that “[t]he Defendants [sic] post-event 11 conduct includes with-holding [sic] critical information that 12 the Plaintiff repeatedly requested prior to the close of 13 discovery.” 14 included nothing more, but this time he did attach a copy of 15 his proposed amended complaint (“the AC”). 16 Mot. (Doc. 140) at 1. Plaintiff’s motion Depicting plaintiff’s motion to amend as “nothing more 17 than an attempt . . . to make an end-run around” the prior 18 order denying his request to re-open discovery, the Board 19 strongly opposed allowing amendment. 20 1:20-21. 21 that plaintiff’s motion was untimely, and allowing amendment 22 at this late date would be not only prejudicial, but also 23 futile. 24 See Resp. (Doc. 141) at In opposing amendment, the Board primarily argued Denying leave to amend, the Magistrate Judge looked not 25 only to plaintiff’s bald reference to the Board’s alleged 26 “with-holding [sic] [of] critical information,” but also to 27 some of the AC’s newly added allegations. 28 144) at 1:21. See Ord. (Doc. The Magistrate Judge observed that plaintiff - 5 - 1 alleged that the Board had “hired outside consultants” who 2 made recommendations, such as changing to an electronic 3 records system[,]” which “BOS disregarded . . . and cho[]se 4 not” to do. 5 Magistrate Judge further observed that plaintiff’s AC 6 includes an allegation that in February 2006, “the jails[’] 7 accreditation with the [NCCHC] was placed on probation after 8 a routine review uncovered major deficiencies.” 9 17. See Prop. Amend. Co. (Doc. 140-1) at 15. The See id. at The AC likewise includes an allegation that a member of 10 the Board allegedly admitted that an electronic medical 11 records system should have been installed earlier. 12 See id. The Magistrate Judge noted that since the 2007 13 commencement of this action, plaintiff has been claiming that 14 Correctional Health Services “had a policy or custom of 15 providing inadequate health care to jail inmates[.]” 16 2:6-8 (citation omitted). 17 however, that “[p]laintiff’s reference to Defendant 18 withholding information and to the NCCHC in his proposed 19 amended allegations d[id] not add to [that] claim.” 20 2:8-9. 21 was remanded by the Ninth Circuit to resolve any discovery 22 requests relating to the [NCCHC] report, if applicable[,]” 23 evidently, in denying leave to amend, the scope of the remand 24 also was a consideration. 25 Id. at The Magistrate Judge concluded, Id. at Given the Magistrate Judge’s remark that “this case See at 2:12-13. Although he broadly contends that the order denying him 26 leave to amend was “both . . . clear error and . . . contrary 27 to law[,”] plaintiff objects only to the Magistrate Judge’s 28 conclusion that the “‘amended allegations d[id] not add to - 6 - 1 his claim[.]’” Obj. (Doc. 147) at 1 (quoting Ord. (Doc. 144) 2 at 2:9). 3 “adds a great deal to the original complaint as it shows that 4 the [Board] ha[d] been aware of constitutional violations 5 within the County jails for decades and refused to fund both 6 staff positions and a record keeping system due to costs.” 7 Id. at 1-2. 8 elaborate, that he will “suffer a great injustice and 9 prejudice” if this court affirms denial of his motion for From plaintiff’s standpoint, the 2006 NCCHC report Plaintiff claims, although he does not See id. at 2. Plaintiff reiterates his firm 10 leave to amend. 11 belief that the Supervisors’ “[c]ounsel has not cooperated in 12 good faith with discovery[.]” Id. (emphasis in original). Discussion 13 14 I. Preliminary Issues 15 A. Plaintiff’s Reply 16 Before addressing plaintiff’s objections to the denial of 17 his motion seeking leave to amend, there are two preliminary 18 issues. 19 “filed a timely reply that” the Magistrate Judge did “not 20 review[][.]” 21 short, as fully explained below, that reply was untimely. 22 Thus, the Magistrate Judge had no obligation to consider it. 23 The first is plaintiff’s mistaken belief that he Obj. (Doc. 147) at 1 (emphasis added). In On February 21, 2012, plaintiff filed his motion for See Mot. (Doc. 140) at 24 leave to file an amended complaint. 25 1. In accordance with LRCiv 7.2(c), the Board timely filed 26 its response on March 14, 2012. As LRCiv 7.2(d) allows, 27 28 - 7 - 1 plaintiff then had until March 26, 2012,3 by which to file his 2 reply. 3 on April 3, 2012. 4 untimely, it was not clear error for the Magistrate Judge not 5 to consider that reply. 6 April 3, 2012, plaintiff’s untimely reply was not entered 7 until April 4, 2012. 8 Electronic Filing associated therewith. 9 Magistrate Judge’s order was filed on April 3, 2012, and Plaintiff did not do that however; he filed his reply Because the plaintiff’s reply was What is more, although filed on See Reply (Doc. 146); and the Notice of Hence, because the 10 entered at 3:37 p.m. that same date, as his order indicates, 11 the Magistrate Judge could not have known of that untimely 12 filing. 13 B. 14 The second preliminary issue also pertains to timeliness. See Ord. (Doc. 144) at 1:17-18. Denial of Motion to Re-open Discovery 15 Plaintiff further claims that the Magistrate Judge’s earlier 16 denial of plaintiff’s motion to re-open discovery, “is in 17 error contrary to law[.]” Obj. (Doc. 147) at 2. That denial 18 order was filed and served on December 8, 2011. See Ord. 19 (Doc. 133). 20 had 14 days “after being served with a copy[]” of that order 21 in which to “serve and file objections” thereto. 22 words, again computing the time in accordance with Rule 6, Pursuant to Fed.R.Civ.P. 72(a), plaintiff thus In other 23 24 25 26 27 28 3 That Rule allows a moving party to file a reply memorandum within seven days after service of the responsive memorandum. Here, the Board filed and served its responsive memorandum on March 14, 2012. Computing the time in accordance with Fed.R.Civ.P. 6(a)(1)(A), that date, as “the event that triggers the period[,]” is excluded. Based upon the type of service, pursuant to Fed.R.Civ.P. 6(d), plaintiff had three additional days, beyond the seven under LRCiv 7.2(d), in which to file a reply. Because the last day of the period was on a Sunday, as Fed.R.Civ.P. 6(a)(1)(C) permits, plaintiff had until the next day “that is not a Saturday, Sunday, or legal holiday[,]” i.e., until Monday, March 26, 2012, by which to file his reply. - 8 - 1 plaintiff had until December 26, 2011, in which to file and 2 serve any objections to the order denying his motion to re- 3 open discovery. 4 that time frame, however. 5 and a half months, until April 13, 2012, when he filed his 6 objections to the order denying leave to amend. 7 extent plaintiff is objecting to the Magistrate Judge’s 8 December 8, 2011, order denying plaintiff’s motion to re-open 9 discovery, such objection is untimely. 10 II. Plaintiff did not file any objections within Instead, he waited nearly three Thus, to the Leave to Amend 11 A. Standard of Review 12 “Generally, a motion for leave to amend the pleadings is 13 a nondispositive matter that may be ruled on by a magistrate 14 judge pursuant to 28 U.S.C. § 636(b)(1).” 15 2011 WL 2414543, at *2 (D.Ariz. June 16, 2011) (citing, inter 16 alia, JJCO, Inc. v. Isuzu Motors America, Inc., 2009 WL 17 3818247, *2 (D.Haw. Nov. 12, 2009) (magistrate judge's denial 18 of a motion for leave to amend complaint is not a dispositive 19 ruling) (citing, in turn, U.S. Dominator, Inc. v. Factory 20 Ship Robert E. Resoff, 768 F.2d 1099, 1102 n. 1 (9th Cir. 21 1985), superseded by statute on other grounds as recognized 22 in Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 23 1996) (noting that the plaintiff’s motion for leave to amend 24 its Complaint was properly treated as a nondispositive motion 25 when the magistrate judge granted the plaintiff’s motion)). 26 There are circumstances, such as when a “magistrate judge 27 denies a party the opportunity to assert a new claim or 28 defense[,]” or “when the denial is specifically premised on - 9 - Cazares v. Morris, 1 futility[,]” that courts have “view[ed] a magistrate judge’s 2 denial of a motion for leave to amend as a dispositive 3 ruling.” 4 That “view is not universal[,]” as the court in JJCO, Inc. 5 astutely observed however. 6 S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006) (finding a 7 magistrate judge’s denial of a motion to amend on grounds of 8 futility to be nondispositive and subject to review for clear 9 error by the district court)). 10 JJCO, Inc., 2009 WL 3818247, at *3 (citing cases). Id. at *3 (citing Hall v. Norfolk Even if that view was universally held, in the present 11 case, the Magistrate Judge’s denial of leave to amend did not 12 deprive the plaintiff of “the opportunity to assert a new 13 claim or defense[.]” 14 (citation omitted) (emphasis added). 15 Judge 16 futility. 17 denying plaintiff’s motion seeking leave to amend is non- 18 dispositive under this line of reasoning. 19 See JJCO, Inc., 2009 WL 3818247, at *3 Nor did the Magistrate “specifically premise[]” denial of leave to amend upon See id. (citations omitted). Therefore, his order Given that the challenged order is non-dispositive, 20 plaintiff is correct – the clearly erroneous or contrary to 21 law standard applies here. 22 (“[a] judge . . . 23 this subparagraph (A) where it has been shown that the 24 magistrate judge’s order is clearly erroneous or contrary to 25 law[]”); Fed.R.Civ.P. 72(a) (a district court “must consider 26 timely objections and modify or set aside any part of the 27 order that is clearly erroneous or contrary to law[]”). 28 “‘The clearly erroneous standard applies to the magistrate See 28 U.S.C. § 636(b)(1)(A) may reconsider any pretrial matter under - 10 - 1 judge’s factual findings[.]’” 2 406904, at *3 (quoting Columbia Pictures, Inc. v. Bunnell, 3 245 F.R.D. 443, 446 (C.D.Cal. 2007)). 4 “‘the contrary to law standard applies to the magistrate 5 judge’s legal conclusions, which are reviewed de novo.’” Id.; 6 see also Jones v. Corrections Corp. of America, 2011 WL 7 1706838, at *4 (D.Ariz. May 5, 2011) (citations and internal 8 quotation marks omitted) (“[T]he contrary to law standard 9 . . . permits independent review of purely legal 10 11 Williams v. U.S., 2012 WL On the other hand, determinations by the magistrate judge.”) In the present case, plaintiff is not challenging any 12 factual findings by the Magistrate Judge. 13 challenging the Magistrate Judge’s legal conclusion denying 14 leave to amend. 15 this court will engage in an independent, de novo review of 16 that denial. 17 B. 18 “A decision is ‘contrary to law’ if it applies an 19 incorrect legal standard or fails to consider an element of 20 the applicable standard.” 21 at *1 (N.D.Cal. Sept. 13, 2011) (citation and internal 22 quotation marks omitted). 23 decision is ‘contrary to law’ when it fails to apply or 24 misapplies relevant statutes, case law or rules of 25 procedure.” 26 2012 WL 849167 at *1 (S.D.Cal. March 13, 2012) (citation and 27 internal quotation marks omitted). 28 Rather, he is Thus, applying the contrary to law standard, Governing Legal Standards Forouhar v. Asa, 2011 WL 4080862, Likewise, “a magistrate judge’s Gabriel Technologies Corp. v. Qualcomm Inc., The Magistrate Judge denied leave to amend primarily - 11 - 1 because “Plaintiff’s reference to [the Board] withholding 2 information and to the NCCHC in his proposed amended 3 allegations d[id] not add to his claim.” 4 2:8-9. 5 Judge overlooked the fact that a Rule 16 scheduling order had 6 been filed in this case. 7 because, as explained herein, at least in the first instance, 8 plaintiff’s motion to amend should have been examined in 9 light of Fed.R.Civ.P. 16(b)(4) and the case law construing 10 Ord. (Doc. 144) at In denying leave to amend, however, the Magistrate That omission was contrary to law it. 11 In the Ninth Circuit, where, as here, a motion for leave 12 to amend is filed after entry of a Rule 16 scheduling order,4 13 the movant cannot “appeal to the liberal amendment procedures 14 afforded by Rule 15[.]” 15 West, Inc., 465 F.3d 946, 952 (9th Cir. 2006). 16 movant must “satisfy the more stringent ‘good cause’ showing 17 required under Rule 16.” 18 also Himmelfarb v. JP Morgan Chase Bank Nat. Ass’n, 2011 WL 19 4498975, at *3 n. 3 (D.Haw. Sept. 26, 2011) (The plaintiff 20 “had to satisfy the more rigorous ‘good cause’ standard 21 established by Rule 16[]” where he filed that motion outside 22 the time period set in the scheduling order.) AmerisourceBergen Corp. v. Dialysist Instead, the Id. (emphasis in original); see Rule 16(b)(4) 23 24 25 26 27 28 4 As in Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992), plaintiff Morgal “did not specifically request that the court modify its scheduling order; he merely [sought leave] to amend his complaint.” See id., at 608 (emphasis in original). Nonetheless, this court will follow the approach endorsed by the Ninth Circuit in Johnson and construe plaintiff Morgal’s motion for leave to amend as a motion to modify the scheduling order under Rule 16. See id.; see also Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, 2012 WL 175411, at *1 n.1 (S.D.Cal. Jan. 2012) (finding that Johnson permits “construing a motion to amend a pleading under Rule 15 as a motion to modify a scheduling order under Rule 16[]”). - 12 - 1 expressly states that “[a] schedule may be modified only for 2 good cause and with the judge’s consent.” 3 16(b)(4). 4 supervising the pretrial phase of litigation, and its 5 decisions regarding the preclusive effect of a pretrial order 6 . . . will not be disturbed unless they evidence a clear 7 abuse of discretion.” 8 Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011), cert. 9 denied sub nom. C.F. v. Corbett, 132 S.Ct. 1566 (U.S. Feb. Fed.R.Civ.P. “The district court is given broad discretion in C.F. ex rel. Farnan v. Capistrano 10 21, 2012) Id. at 984 (citations and internal quotation marks 11 omitted) (omission in original). 12 “A court’s evaluation of good cause is not coextensive 13 with an inquiry into the propriety of the amendment under 14 . . . Rule 15.” 15 (citation and internal quotation marks omitted)(emphasis 16 added). 17 focuses on the bad faith of the party seeking to interpose an 18 amendment and the prejudice to the opposing party, Rule 19 16(b)’s “good cause” standard primarily considers the 20 diligence of the party seeking the amendment.” 21 slightly different way, “‘[t]he focus of the inquiry is upon 22 the moving party’s reasons for seeking modification.’” 23 Farnan, 654 F.3d at 984 (quoting Johnson, 975 F.2d at 609). 24 Mammoth Recreations, 975 F.2d at 609 “Unlike Rule 15(a)’s liberal amendment policy which Id. Put in a Courts within this Circuit “have articulated and 25 undertaken [a] three-step inquiry in resolving the question 26 of ‘diligence’ in the context of determining good cause under 27 Rule 16[.]” 28 (E.D.Cal. Nov. 15, 2011), adopted, 2012 WL 218959, at *1 Grant v. United States, 2011 WL 5554878, at *4 - 13 - 1 (E.D.Cal. Jan. 23, 2012). [T]o demonstrate diligence under Rule 16's “good cause” standard, the movant may be required to show the following: (1) that []he was diligent in assisting the [c]ourt in creating a workable Rule 16 order; (2) that h[is] noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding h[is] 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 amendment of the Rule 16 order, once it became apparent that []he could not comply with the order. 2 3 4 5 6 7 8 9 Under that inquiry: Id. (quoting Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 10 (E.D.Cal. 1999)) (other citation omitted). The diligence 11 obligation is ongoing. 12 adhere to that schedule throughout the subsequent course of 13 the litigation.’” Trejo v. City of Shafter, 2011 WL 6130894, 14 at *1 (E.D.Cal. Dec. 8, 2011) (quoting Jackson, 186 F.R.D. at 15 607) (other citation omitted). “Parties must ‘diligently attempt to The Ninth Circuit has also recognized that, “[t]he 16 17 district court may modify the pretrial schedule ‘if it cannot 18 reasonably be met despite the diligence of the party seeking 19 the extension.’” Johnson, 975 F.2d at 609 (quoting 20 Fed.R.Civ.P. 16 advisory committee’s note). 21 token though, “carelessness is not compatible with a finding 22 of diligence and offers no reason for a grant of relief.” 23 Id. 24 the party opposing the modification might supply additional 25 reasons to deny a motion, the focus of the inquiry is upon 26 the moving party’s reasons for seeking modification.” 27 (citation omitted). 28 inquiry should end.” By the same Finally, while “the existence or degree of prejudice to Id. “If that party was not diligent, the Id. That is because, “[a]s the Ninth - 14 - 1 Circuit explained in Johnson . . . , once the district court 2 has filed a pretrial scheduling order pursuant to Rule 16 3 . . . , a motion seeking to amend pleadings is governed first 4 by Rule 16(b), and only secondarily by Rule 15(a).” 5 Laureate, 186 F.R.D. at 607). 6 good cause standard is not met, there is no need to “reach 7 the Rule 15(a) standard.” 8 Kaufman, 2011 WL 2713887, at *4 (D.Ariz. 2011) (holding that 9 it “need not reach the Rule 15(a) standard[]” where 10 plaintiffs did not satisfy the Rule 16(b) standard). That means that if the Rule 16 See B2B CFO Partners, LLC v. 11 C. Analysis 12 On July 26, 2007, a Rule 16 Order was entered in this 13 case. 14 . . . deadlines and discovery orders[]” enumerated therein, 15 that Order contained the following explicit warning: 16 In ordering “that the parties shall comply with the THE PARTIES AND COUNSEL ARE CAUTIONED THAT THE 17 DEADLINES SET FORTH IN THIS RULE 16 SCHEDULING ORDER SHALL BE 18 STRICTLY ENFORCED. 19 Ord. (Doc. 12) at 1 (emphasis in original). 20 Order further mandated: 21 That Scheduling 4. Motions to Amend the Complaint, and to join additional parties shall be 22 filed no later than Friday, October 26, 2007 . 23 Id. at 2, ¶ 4 (emphasis in original). 24 the motion to amend which is the subject of this court’s 25 review until February 21, 2012, however. As explained herein, 26 under these “case-specific circumstances, the ‘diligence’ 27 inquiry . . . turn[s][,]” primarily upon “consideration of 28 [plaintiff’s] diligence “between the discovery of new - 15 - Plaintiff did not file 1 information and the motion to amend[.]” See Aldan v. World 2 Corp., 267 F.R.D. 346, 357 (N. Mar. I. 2010). 3 In seeking leave to modify the Rule 16 Order to allow 4 amendment, plaintiff has the burden of establishing good 5 cause within the meaning of that Rule. 6 void of any case law, statutes or rules, however.5 7 noted, the sum total of his motion is plaintiff’s bald 8 assertion that the Board’s “post-event conduct includes with- 9 holding [sic] critical information that the Plaintiff 10 repeatedly requested prior to the close of discovery.” 11 (Doc. 140) at 1. 12 that Rule 16's good cause standard has some relevancy here.6 13 Given the absence of a reply, and plaintiff’s failure to 14 address good cause initially, clearly, he has made no attempt 15 to establish the requisite good cause. Plaintiff’s motion is As earlier Mot. The Board’s opposition raised the specter 16 Plaintiff’s silence on that issue does not necessarily 17 preclude a finding that he acted diligently with respect to 18 the first two steps of the good cause inquiry, though. As to 19 5 20 21 22 23 The Board’s response did include a legal analysis, but, for the most part, it missed the mark. That is because the Board focused almost exclusively upon untimeliness, prejudice and futility – factors which, in accordance with Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), typically are considered when deciding the propriety of allowing amendment under Fed.R.Civ.P. 15(a). Because plaintiff’s motion to amend was filed after entry of the Rule 16 Order, as explained above, as a prerequisite to amendment, plaintiff must satisfy Rule 16(b)(4)’s more stringent good cause standard. Only if plaintiff meets that burden, does Rule 15(a) become relevant. Therefore, the bulk of the Board’s response was not directly relevant. 24 6 25 26 27 28 Opposing amendment, the Board, purporting to quote from Scognamillo v. Credit Suisse First Boston, LLC, 587 F.Supp.2d 1149, 1155-56 (N.D.Cal. 2008), stated, “‘Plaintiff has not addressed the ‘good cause’ standard and has offered no justification for the delay in seeking to amend his complaint. Absent a showing of good cause, Plaintiff’s motion to amend his complaint is denied.’” Resp. (Doc. 141) at 2:22-24. That quote appears nowhere in Scognamillo, however. So, although the Board recognizes that Rule 16's good cause standard is implicated here, it did not provide any pertinent case law. Likewise, the Board did not analyze diligence, which is central to the good cause inquiry. - 16 - 1 the first step, there is nothing to suggest that plaintiff was 2 not “diligent in assisting the [c]ourt in creating a workable 3 Rule 16 order[.]” See Grant, 2011 WL 5554878, at *4 (internal 4 quotation marks and citation omitted). 5 observes that given the Board’s seeming awareness that “good 6 cause” is the governing legal standard here, presumably, if it 7 believed that plaintiff had not been diligent in this regard, 8 the Board would have so argued, but it did not. 9 As an aside, the court As to the second good cause factor, as the record shows, 10 plaintiff’s noncompliance with the Rule 16 Order’s October 26, 11 2007, deadline for filing his motion to amend “occurred . . . 12 because of the development of matters which could not have 13 been reasonably foreseen or anticipated at the time of the 14 Rule 16 scheduling conference[.]” See id. (internal quotation 15 marks and citations omitted). 16 entered into the Rule 16 Order on July 26, 2007, plaintiff 17 could not have anticipated the motion practice which would 18 ensue, beginning in the spring of 2009, with respect to the 19 2006 NCCHC report. 20 receive that report until roughly two and a half years later, 21 in January, 2010, during the pendency of his appeal. 22 Appellant’s Reply (No. 09-17313) (Doc. 17) at 3. 23 In particular, when the parties Nor could he anticipate that he would not See Despite the foregoing, plaintiff’s good cause showing 24 falters, and ultimately fails, at the third step of the 25 inquiry. 26 “was diligent in seeking amendment of the Rule 16 order, once 27 it became apparent that []he could not comply with the order.” 28 See Grant, 2011 WL 5554878, at *4 (citations omitted). Plaintiff has not met his burden of showing that he - 17 - There 1 is more than sufficient proof in the record that, from 2 plaintiff’s standpoint, the 2006 NCCHC report was important to 3 his theory of liability in this lawsuit, and that it had been 4 well before February 21, 2012, when he filed the motion to 5 amend which now is under review. 6 plaintiff had been attempting to procure that report,7 and 7 eventually he did. 8 2006 NCCHC report to the Ninth Circuit on his appeal. See 9 Appellant’s Reply (No. 09-17313) (Doc. 17) at 2, ¶ 3. Thus, Since April 13, 2009, On May 10, 2010, plaintiff supplied the 10 obviously plaintiff was in possession of the 2006 NCCHC report 11 when the mandate was filed on August 8, 2011. 12 September 15, 2011, when plaintiff filed three post-appeal 13 motions, he specifically relied upon that report in two of 14 those motions. 15 appointment of counsel was the Board’s alleged denial of the 16 existence of the 2006 NCCHC report. 17 That report also formed the basis for plaintiff’s motion to 18 re-open discovery, also filed that same date. Moreover, on One of plaintiff’s bases for seeking Mot. (Doc. 124) at 1. Thus, under the particular facts of this case, plaintiff 19 20 has not shown that he acted diligently when, instead of 21 seeking amendment at least by September 15, 2011, when he 22 filed three other post-appeal motions 23 based in part upon the 2006 NCCHC report – he waited until – two of which were 24 7 25 26 27 28 In an April 13, 2009, letter which the Supervisors construed as a “Motion to Produce[,]” plaintiff requested, among other documents, an NCCHC report. See Def.’s Resp. to Mot. to Produce (Doc. 66-1) at 1:28-2:1. Because that letter is not part of the record, there is no way of knowing for certain whether at that time plaintiff was seeking the 2006 version of the NCCHC’s report. Further muddying the waters is the fact that in its response, the Board objected to the production of NCCHC reports for years other than 2006. As this dispute continued, however, it became clear that, despite what the Board presumed, all along plaintiff had been seeking the 2006 version of the NCCHC report. - 18 - 1 December 19, 2011, more than four months after entry of the 2 mandate, to file his first motion to amend; and this second 3 motion to amend was not filed until more than six months after 4 entry of the mandate. 5 (denying plaintiff’s motion for leave to amend her complaint 6 because it was not supported by good cause in that, inter 7 alia, plaintiff was “silent as to whether any new and 8 previously unavailable information justified the requested 9 amendment[]” and she “fail[ed] to show diligence in filing her 10 Cf. Laureate, 186 F.R.D. at 609 motion to amend[]”) (citation and footnote omitted). The present case thus stands in sharp contrast to cases 11 12 such as Navarro v. Eskanos & Adler, 2006 WL 3533039, at *2 13 (N.D.Cal. Dec. 7, 2006), and Rants v. WHPacific Inc., 2010 WL 14 4622164, at *2 (W.D.Wash. Nov. 4, 2010), where, based upon a 15 showing of good cause, the courts allowed amendment after the 16 filing of a Rule 16 order. 17 to amend “within two weeks of discovering [through depositions 18 of defendants’ employees] the basis of her new allegations.” 19 Navarro, 2006 WL 3533039, at *2. 20 that “[p]laintiff showed diligence by seeking leave to amend 21 her complaint upon learning of the basis of her new claims.” 22 Id. 23 he had the basis for his purported new claims in his 24 possession on August 8, 2011, waited considerably longer than 25 two weeks before seeking leave to amend. 26 Plaintiff Navarro filed her motion The Navarro court reasoned The same cannot be said of plaintiff Morgal who, although Acting with similar haste as plaintiff Navarro, plaintiff 27 Rants likewise acted diligently by filing her motion to amend 28 to add two new defendants less than two weeks after the - 19 - 1 deadline for the filing of any such motions. 2 WL 4622164, at *2. 3 promptness. See Rants, 2010 Plaintiff Morgal did not act with similar He did not seek leave to amend at the first 4 available opportunity after entry of the mandate. 5 Additionally, allowing amendment at this late date would 6 “create . . . meaningful issues of case management and . . . 7 impair the efficient adjudication of th[is] action[]” given 8 that this case has been pending for more than five years; the 9 time for discovery has long since passed; and the Board’s 10 summary judgment motion on remand is pending. 11 (citation omitted). See id. at *2 These factors bolster a finding of lack 12 of diligence in the present case. Consequently, unlike 13 Rants, where allowing plaintiff to amend her complaint might 14 have “assist[ed] [in] the efficient adjudication of th[at] 15 action because” the addition of two defendants “prevent[ed] 16 the potential for multiple lawsuits[,]” adding allegations 17 based upon the 2006 NCCHC report at this late date would have 18 the opposite effect here. 19 See id. Lastly, the court notes that the sole basis for 20 plaintiff’s motion seeking leave to file an amended complaint 21 was, as mentioned earlier, his bald assertion that “[t]he 22 Defendants [sic] post-event conduct includes with-holding 23 [sic] critical information that the plaintiff repeatedly 24 requested prior to discovery.” Mot. (Doc. 140) at 1. 25 Generously construing that assertion as an attempt to show 26 good cause, still, plaintiff has not satisfied his burden in 27 that regard. That unsupported contention does not come close 28 to establishing good cause within the meaning of Fed.R.Civ.P. - 20 - 1 16(b)(4). 2 Moreover, in June and July 2009, when the issue of 3 disclosing the 2006 NCCHC report was the subject of several of 4 the parties’ motions, plaintiff continually referred to the 5 Board’s alleged failure to disclose and mislead him with 6 respect to that report, among other documents. See, e.g., 7 Not. of Mis-Representation (Doc. 70) at 1 (“Counsel has still 8 not forwarded or disclosed the NCCHC report that has been 9 requested numerous times over the last 60 days.”); Pl.’s Resp. 10 to Mot. in Limine (Doc. 95) at 1 (accusing defense counsel of 11 “hiding” document and “providing false information to the 12 Court” regarding, among other things, the 2006 NCCHC report); 13 Pl.’s Reply (Doc. 91) at 2-3 (claiming that defense counsel 14 “had a duty to disclose but cho[]se to hide[,]” among other 15 documents, the 2006 NCCHC report); and Mot. to Conduct in 16 Camera Review (Doc. 101) at 1-2 (maintaining that defense 17 counsel “mislead[] this Court as to the reports[,]” including 18 the 2006 NCCHC report). Clearly, plaintiff was not diligent 19 in waiting more than six months after the issuance of the 20 mandate to seek amendment on his long-held theory that defense 21 counsel withheld the 2006 NCCHC report. 22 Because plaintiff Morgal has not met his burden of showing 23 good cause under Rule 16, “the inquiry should end.” 24 Johnson, 975 F.2d at 609. See As the Ninth Circuit permits, 25 however, this court will also consider the “existence or 26 degree of prejudice” to the Board, as the party opposing 27 modification, as those factors “might supply additional 28 reasons to deny a motion[]” to modify under Rule 16. - 21 - Id. 1 When the court does that, it finds that allowing amendment at 2 this late date likely would require re-opening discovery 3 which, in turn, would be prejudicial to the Board, and further 4 delay the resolution of this case. This is all the more so 5 given the Board’s pending summary judgment motion filed in 6 light of the remand. See Melbye v. Accelerated Payment 7 Technologies, Inc., 2011 WL 6754088, at *3 (S.D.Cal. Dec. 22, 8 2011) (plaintiff did not demonstrate good cause where, among 9 other things, the “parties ha[d] already engaged in, and 10 completed, discovery[;]” and defendant had “also filed a 11 summary judgment motion[]”) So, although not critical to its 12 finding that plaintiff did not act diligently in seeking leave 13 to amend, in the present case, this prejudice factor does 14 provide an additional reason for denying that motion. 15 To conclude, after engaging in an independent, de novo 16 review of the Magistrate Judge’s denying plaintiff’s motion 17 for leave to a file an amended complaint, although this court 18 reaches the same conclusion as did the Magistrate Judge – 19 that plaintiff’s motion must be denied – it does so for 20 different reasons. As thoroughly discussed above, the basis 21 for this court’s denial is plaintiff’s failure to satisfy 22 Fed.R.Civ.P. 16(b)(4)’s good cause standard. 23 24 Conclusion To the extent plaintiff is objecting to the Magistrate 25 Judge’s December 8, 2011, order denying plaintiff’s motion to 26 re-open discovery, such objection is untimely. 27 the court overrules that objection. Accordingly, Further, because 28 plaintiff Morgal has not met his burden of showing good cause - 22 - 1 under Fed.R.Civ.P. 16(b)(4), this court finds that plaintiff’s 2 “Motion for Leave to File a[n] Amended Complaint” was properly 3 denied, albeit for different reasons than the Magistrate 4 Judge offered. 5 Further, in light of this court’s May 1, 2012, order 6 vacating the time frames set forth in the Magistrate Judge’s 7 March 23, 2012, order, and “Defendant’s Notice of Service of 8 Renewed Motion for Summary Judgment” (Doc. 151), the court 9 hereby ORDERS that: 10 (1) plaintiff shall have thirty (30) days from date of 11 entry of this order in which to file and serve a response 12 thereto, if any. If plaintiff desires to file a response, 13 except for the time frames set forth therein, such response 14 otherwise shall comport with the Magistrate Judge’s March 23, 15 2012, Order (Doc. 143), a copy of which is attached hereto and 16 incorporated herein; and; 17 (2) within fifteen (15) days after service of plaintiff’s 18 response, if any, the defendant may file a reply, if any. 19 DATED this 5th day of June, 2012. 20 21 22 23 24 25 26 27 28 Copies to counsel of record and plaintiff pro se - 23 -

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