Lang et al v. Maricopa, County of et al

Filing 23

ORDER denying 20 Motion to Amend/Correct. Signed by Judge David G Campbell on 11/16/2015.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Randy D. Lang and Heidi Lang,
Plaintiffs,

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ORDER

v.

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No. CIV 15-182-PHX-DGC

County of Maricopa, et al.,

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Defendants.

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The Court held a telephone conference with the parties on November 13, 2015.

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Plaintiffs filed a motion to amend their complaint on November 9, 2015 (Doc. 20), after

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the telephone conference was scheduled and almost three months after the deadline for

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amending pleadings (Doc. 16 at 1). The parties also revealed during the conference that

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Plaintiffs failed to comply with their expert disclosure deadline of September 25, 2015,

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and Defendants failed to comply with their expert disclosure deadline of November 9,

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2015. The Court must decide whether to extend any of these deadlines.

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Deadlines established in a case management order may “be modified only for

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good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). “Good cause” exists

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when a deadline “cannot reasonably be met despite the diligence of the party seeking the

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extension.” Fed. R. Civ. P. 16 Advisory Comm. Notes (1983 Am.). Thus, “Rule 16(b)’s

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‘good cause’ standard primarily considers the diligence of the party seeking the

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amendment.” Johnson, 975 F.2d at 609; see also Coleman v. Quaker Oats Co., 232 F.3d

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1271, 1294 (9th Cir. 2000). Where that party has not been diligent, good cause has not

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been shown and the inquiry ends. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087

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(9th Cir. 2002); Johnson, 975 F.2d at 609.

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Plaintiffs filed their initial complaint on September 18, 2014, and an amended

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complaint on January 16, 2015. Doc. 1-1. After this case had been assigned to a

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magistrate judge and one of the parties, on April 16, 2015, declined to consent to

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magistrate judge jurisdiction (Doc. 9), this Court scheduled a Rule 16 case management

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conference (Doc. 12). The Court’s order explained that the Court would establish a

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litigation schedule at the case management conference and provided this direction: “The

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Court fully intends to enforce the deadlines in the Case Management Order. The parties

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should plan their litigation activities accordingly.” Doc. 12 at 5.

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The case management conference was held on June 16, 2016. Doc. 15. During

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the conference, the Court discussed with the parties several potential defects in Plaintiffs’

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amended complaint that were raised by Defendants in the parties’ Rule 26(f) report. See

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Doc. 13 at 9. To avoid the time and delay of briefing these issues, if possible, the Court

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instructed Plaintiffs’ counsel to review the issues raised by Defendants and confer with

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defense counsel “in a week or two.” Court’s Livenote Transcript, 6/16/15. If the

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disagreements concerned a matter of pleading form, the Court encouraged the parties to

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stipulate that Plaintiffs could re-plead their claims to avoid the pleading problems,

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thereby avoiding the need for a motion to dismiss followed by further amendments. If

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the parties could not reach agreement, the Court directed the parties to schedule a

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conference call with the Court, explaining that the Court would set a briefing schedule to

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resolve these matters in “short order.” Id. The Court then set a litigation schedule which

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provided that “[t]he deadline for joining parties, amending pleadings, and filing

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supplemental pleadings is 60 days from the date of this Order.” Doc. 16, ¶ 2 (emphasis

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in original).

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Plaintiffs did not follow the Court’s direction. It appears that Plaintiffs’ counsel

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made no effort to discuss these issues with defense counsel within “a week or two” as the
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Court had directed. Instead, as defense counsel explained during the November 13, 2015

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conference call, Plaintiffs’ counsel first sent Defendants a proposed second amended

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complaint on August 26, after the 60-day deadline for amending pleadings had passed.

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Plaintiffs never contacted the Court for a conference as directed, but instead waited until

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November 9, 2015 to file their motion to amend. This not only was almost three months

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after the amendment deadline, it was more than a month after Plaintiffs’ unsatisfied

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deadline for serving expert reports.

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Plaintiffs’ counsel stated during the conference call that the delay was due to post

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traumatic stress suffered by his client. But Plaintiff did not raise this issue with the Court

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before the amendment deadline passed, provided no support for this assertion, and failed

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to explain how the client’s stress interfered with the ability of Plaintiffs’ counsel to

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address the primarily legal issues identified during the case management conference.

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The Court concludes that the amendment deadline, which fell some 11 months

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after this case was filed, could have been met through reasonable diligence. In addition

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to the fact that Plaintiffs have already amended their complaint once, Plaintiffs knew of

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the pleading issues after the case management conference in June, were specifically

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directed by the Court to address them promptly, disregarded the Court’s direction, and

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waited until almost three months after the amendment deadline before seeking leave to

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file a second amended complaint. Plaintiffs have failed to show that they were diligent

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and therefore have failed to show good cause for an extension of the amendment date.

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Johnson, 975 F.2d at 609. Plaintiffs’ motion to amend will be denied. Their amended

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complaint remains the operative pleading in this case.

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Plaintiffs likewise have not shown good cause for failing to comply with their

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expert disclosure deadline. The September 25, 2015 deadline was proposed by the

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parties. See Doc. 13 at 8. The Court’s case management order adopted the parties’

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proposed expert schedule and specifically stated that Plaintiffs were required to provide

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“full and complete expert disclosures” by this date.

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emphasized, as had the order setting the case management conference, that this deadline
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Doc. 16, ¶ 5(a).

The order

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was real and would be enforced by the Court. See Doc. 16, ¶ 9. Plaintiffs have not

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shown that they were unable to meet this deadline through reasonable diligence. Because

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the date fell more than a year after the filing of this case and the need for expert reports

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has been clear from the beginning, the Court concludes that the deadline could have been

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satisfied through reasonable diligence. Plaintiffs therefore have failed to show good

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cause and the deadline will not be extended. Fed. R. Civ. P. 16(b)(4). Plaintiffs have

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missed their opportunity to serve initial expert reports.

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Defendants have also missed their expert deadline, but their situation is different.

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The November 13 conference call was scheduled on November 5, 2015, before

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Defendants’ deadline had arrived. Doc. 19. In addition, Defendants explained during the

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conference call that they did not receive Plaintiffs’ medical records until one week before

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the call. Because Defendants could not have prepared expert reports before receiving the

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medical records, and they sought relief from the Court before their expert deadline

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passed, Defendants have shown good cause and the Court will extend their expert

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deadline to December 22, 2015.

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January 21, 2016. Expert depositions shall be completed by February 26, 2016. All

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other terms of the Court’s case management order (Doc. 16) remain in effect.

Rebuttal expert reports will be due on

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IT IS ORDERED that Plaintiffs’ motion for leave to amend (Doc. 20) is denied.

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Dated this 16th day of November, 2015.

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