Schwartz v. Pruitt et al
Filing
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ORDER denying 36 plaintiff's motion for leave to file amended complaint. Signed by Judge Frederick J Martone on 9/19/2012.(KAR).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Jon C. Schwartz,
Plaintiff,
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vs.
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Charles O. Pruitt, et al.,
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Defendants.
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No. CV 11-08208-PCT-FJM
ORDER
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The court has before it plaintiff's motion for leave to file amended complaint (doc.
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36). Defendants did not respond and the time for doing so has passed. Plaintiff seeks to add
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his wife as a plaintiff and to add a claim for loss of consortium on his wife's behalf.
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Plaintiff filed his complaint in the Superior Court of Arizona in Mohave County on
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November 10, 2011. Defendants removed this action on December 22, 2011. The court held
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a scheduling conference on March 16, 2012, and issued a Rule 16 scheduling order on March
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19, 2012, stating that "Motions to Amend the Complaint, and to join additional parties shall
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be filed no later than May 1, 2012" (doc. 12 at 2 (emphasis in original)). Plaintiff filed the
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pending motion on August 8, 2012.
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Once the district court files a pretrial scheduling order pursuant to Rule 16, Fed. R.
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Civ. P., establishing a timetable for amending pleadings, Rule 16's standards control
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consideration of a motion to amend. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th
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Cir. 2000). "A schedule may be modified only for good cause and with the judge's consent."
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Rule 16(b)(4), Fed. R. Civ. P. This "good cause" standard "primarily considers the diligence
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of the party seeking the amendment." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
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609 (9th Cir. 1992). "If [the moving] party was not diligent, the inquiry should end." Id.
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There is no showing of diligence here sufficient to modify the scheduling order.
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Plaintiff's request is based on the fact that "[i]t has just recently been brought to [plaintiff's]
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counsel's attention, by way of discussion with Plaintiff in preparing his responses to
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Defendants (sic) discovery requests, that Plaintiff Dr. Jon Schwartz is not the only person
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who suffered injury as a result of Defendants' negligence." (Doc. 36 at 3-4). Plaintiff's
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current lawyer is the same lawyer who filed the complaint on his behalf over nine months
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ago. It was surely foreseeable that an accident which severely injured plaintiff would
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adversely affect his spouse. Plaintiff is not diligent by waiting until three months after the
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deadline to amend to discuss the collateral effects of the accident on plaintiff's wife.
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IT IS ORDERED DENYING plaintiff's motion for leave to file amended complaint
(doc. 36).
DATED this 19th day of September, 2012.
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