Davis v. White Mountain Communities Hospital Incorporated et al
ORDER - Because defendant has not been diligent in seeking to modify the scheduling and planning order, it cannot show good cause. Thus, defendant's 52 motion to modify the scheduling order so it may amend its answer to file a counterclaim is denied. (See document for further details). Signed by Judge H Russel Holland on 4/20/16. (LAD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
WHITE MOUNTAIN COMMUNITIES
HOSPITAL, INC., d/b/a WHITE MOUNTAIN )
REGIONAL MEDICAL CENTER, et. al,
Motion for Leave to Amend and Add Counterclaim
Defendant moves to modify the scheduling order so that it may amend its answer
to add a counterclaim.1 This motion is opposed.2 Oral argument was requested but is not
On March 20, 2015, plaintiff Miriam Davis commenced this action in which she
asserts federal and state religious discrimination claims against defendant White Mountain
Regional Medical Center, her former employer.
Docket No. 52.
Docket No. 55.
Plaintiff alleges that she was not
promoted, given less favorable terms of employment, and ultimately terminated because
of her religion. Defendant answered on May 19, 20153 and filed an amended answer4 on
June 2, 2015.
A scheduling and planning order was entered on June 11, 2015.5 The scheduling
order provided that motions to amend the pleadings were to be filed no later than July 24,
2015.6 The scheduling order provided that all discovery in this case was to be completed
by April 15, 2016.7 That date was subsequently extended to July 29, 2016.8
Defendant now moves to modify the scheduling order so that it may amend its
answer to add a counterclaim. Defendant contends that during discovery in this case it
learned that plaintiff had breached her confidentiality agreement with defendant and that
she breached defendant’s confidentiality policies. Based on this information, defendant
seeks to amend its answer to add a counterclaim that asserts breach of contract and breach
of fiduciary duty claims against plaintiff.
Docket No. 7.
Docket No. 9.
Docket No. 13.
Id. at 6.
Id. at 4.
Docket No. 71.
Rule 16(b)(4), Federal Rules of Civil Procedure, provides that a scheduling and
planning order “may be modified only for good cause and with the judge’s consent.”
“Under Rule 16(b), [defendant] must show good cause for not having amended [its]
complaint before the time specified in the scheduling order expired.” Coleman v. Quaker
Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). “‘Unlike Rule 15(a)’s liberal amendment
policy which focuses on the bad faith of the party seeking to interpose an amendment and
the prejudice to the opposing party, Rule 16(b)’s “good cause” standard primarily
considers the diligence of the party seeking the amendment.’” In re W. States Wholesale
Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013) (quoting Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). “While a court may take into account
any prejudice to the party opposing modification of the scheduling order, ‘the focus of the
[Rule 16(b)] inquiry is upon the moving party’s reasons for seeking modification[.] If that
party was not diligent, the inquiry should end.’” Id. (quoting Johnson, 975 F.2d at 609).
Defendant argues that it can show good cause to modify the scheduling order
because it only recently learned that plaintiff breached her confidentiality agreement and
defendant’s confidentiality policies. Plaintiff’s confidentiality agreement with defendant
provided that patient medical records were confidential and that employees could not
“disclose directly or indirectly any secret or confidential information[.]”9 Defendant’s
White Mountain Regional Medical Center Confidentiality Agreement, Exhibit 2,
employee handbook provided that “employees may not send confidential patient or
employee information over the Internet.”10 Defendant contends that it recently learned that
plaintiff had forwarded twelve emails from her work account to her personal Gmail
account, two of which included confidential patient information.11 Defendant contends that
it promptly brought the instant motion, which was filed on February 23, 2016, after it
learned of these breaches by plaintiff. Although in its opening brief defendant did not
indicate when it learned of the alleged breaches, in its reply brief, it contends that it first
learned of plaintiff’s alleged breaches on November 24, 2015.
“Courts have held that waiting two months after discovering new facts to bring a
motion to amend does not constitute diligence under Rule 16.” Sako v. Wells Fargo Bank
Nat’l Assoc., Case No. 14cv1034–GPC(JMA), 2015 WL 5022326, at *2 (S.D. Cal. Aug. 24,
2015). If, as defendant contends, it discovered plaintiff’s alleged breaches on November
24, 2015, defendant then waited three months to move to modify the scheduling order so
that it could amend its answer to add a counterclaim. If waiting two months does not
Defendant WMRMC’s Motion for Leave to Amend Answer and Add Counterclaim, Docket
Employee Handbook and Code of Conduct at 19, Exhibit 3, Defendant WMRMC’s
Motion for Leave to Amend Answer and Add Counterclaim, Docket No. 52.
Exhibit 9, Defendant WMRMC’s Motion for Leave to Amend Answer and Add
Counterclaim, Docket No. 52.
constitute diligence under Rule 16, then neither does waiting three months. Moreover,
defendant was on notice that plaintiff had forwarded emails from her work account to her
personal account in June 2015, when plaintiff served her initial disclosure statement upon
defendant, attached to which were two of the emails that defendant contends it only
recently discovered.12 Defendant could have brought the instant motion long before the
end of February 2016. Defendant has not been diligent in seeking to modify the scheduling
Because defendant has not been diligent in seeking to modify the scheduling and
planning order, it cannot show good cause. Thus, defendant’s motion13 to modify the
scheduling order so it may amend its answer to file a counterclaim is denied.
DATED at Anchorage, Alaska, this 20th day of April, 2016.
/s/ H. Russel Holland
United States District Judge
Exhibit 1, Plaintiff’s Response to Defendant’s Motion for Leave to Amend Answer
to Add Counterclaim, Docket No. 55.
Docket No. 52.
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