Mathis et al v. United States of America

Filing 215

ORDER - IT IS ORDERED DENYING plaintiffs' motion to file a second amended complaint (doc. 165). IT IS FURTHER ORDERED DENYING APG's motion to file a sur- reply (doc. 194). (See document for further details). Signed by Judge Frederick J Martone on 11/30/11.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Trina Mathis, et al.,
Plaintiffs,

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vs.

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United States of America, et al.,
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Defendants.
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No. CV-10-8157-PCT-FJM
ORDER

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The court has before it plaintiffs’ motion to file a second amended complaint (doc.

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165) and memorandum in support (doc. 166), defendant United States’ response (doc. 169),

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defendant Attentus Provider Group’s (“APG”) response (doc. 172), defendant Nationwide

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Nurses, Hudson, and Jackson’s response (doc. 174), defendant Theodore Collins’ response

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(doc. 176), and plaintiffs’ replies (docs. 177, 180, 181). We also have before us defendant

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APG’s motion for leave to file a sur-reply (doc. 194), plaintiffs’ response (doc. 200), and the

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United States’ response (doc. 205).

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We first deny APG’s motion for leave to file a sur-reply, a document not contemplated

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by the federal or local rules of civil procedure (doc. 194). APG contends it needs to file a

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sur-reply based on new arguments raised in plaintiffs’ replies. We will not consider an

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argument raised for the first time in a reply. See Gadda v. State Bar of Cal., 511 F.3d 933,

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937 n.2 (9th Cir. 2007). Thus, there is no need for a sur-reply.

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This case involves allegations of wrongful death caused by medical negligence in the

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treatment of decedent Tommy Clarke at Sage Memorial Hospital. Plaintiffs now seek leave

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to file a second amended complaint primarily to add a new claim against defendant APG for

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negligent hiring and retention of defendant Theodore W. Collins, D.O., the treating

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emergency room physician. Plaintiffs originally stated a claim for respondeat superior

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against APG relating to Dr. Collins’ alleged negligence. Plaintiffs affirmatively pled that if

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they “learn in discovery that Collins was truly an independent contractor of APG, APG

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would not be vicariously liable for Collins’ negligence and plaintiffs will drop their claims

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against APG.” Amended Complaint at 3 n.1 (doc. 51).

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Plaintiffs now claim that they have discovered that Dr. Collins was not an employee

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of APG, but was engaged by APG as an independent contractor. Notwithstanding their

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earlier intention to dismiss the claim against APG, plaintiffs now seek to add an entirely new

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theory of liability against APG, that of negligent hiring and retention.

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Defendants object to the amendment, arguing that plaintiffs learned on or about May

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10, 2011, when they received an agreement between APG and Sage Memorial Hospital, that

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Dr. Collins was an independent contractor, not an employee. Plaintiffs’ Reply to APG at 6.

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Yet plaintiffs waited 5 months to seek leave to amend their theory of liability. APG argues

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that it would be prejudiced by the amendment because to date all of its discovery has focused

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on plaintiffs’ respondeat superior claim. They contend that a new claim of negligent hiring

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and retention would require completely new discovery. They note that a number of key

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depositions have already been taken, including that of Dr. Collins, without any questioning

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on the theory of negligent hiring. Defendants contend that adding a new claim at this stage

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of the litigation will result in an undue burden and will require additional time and expense

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for new and repeated depositions.

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The deadline to amend the complaint was July 1, 2011. Although certain specified

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Rule 16 deadlines were extended by 90 days, the deadline to amend the complaint was not.

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This case is old. Discovery closes in 6 weeks. Plaintiffs have not presented good cause for

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further upsetting the Rule 16 scheduling order.
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IT IS ORDERED DENYING plaintiffs’ motion to file a second amended complaint

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(doc. 165). IT IS FURTHER ORDERED DENYING APG’s motion to file a sur-reply

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(doc. 194).

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DATED this 30th day of November, 2011.

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