Gubanov v. Stanislaus County et al
Filing
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ORDER granting 16 Motion to Dismiss signed by Judge John A. Mendez on 12/11/15. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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Evgeniy Gubanov,
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2:14-cv-01731-JAM-EFB
Plaintiff,
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No.
v.
ORDER GRANTING DEFENDANT CORRECT
CARE’S MOTION TO DISMISS
Stanislaus County, et al,
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Defendants.
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This matter is before the Court on Defendant Correct Care
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Solutions, LLC’s (“Correct Care”) motion to dismiss (Doc. #16). 1
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Plaintiff Evgeniy Gubanov (“Plaintiff”) opposes the motion (Doc.
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#18).
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I.
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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
In November 2012, Plaintiff severely fractured his ankle.
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First Amended Complaint (“FAC”) ¶ 3 (Doc. #13).
Orthopedic
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surgeon Stephen Berrien operated on Plaintiff’s ankle and put
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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for November 18, 2015.
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Plaintiff’s ankle in a solid white cast.
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was told that he could not put weight on his ankle and that he
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needed crutches to walk.
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Id. ¶ 21.
Plaintiff
Id.
Two months after he fractured his ankle, Plaintiff was
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arrested and taken to Stanislaus County Jail.
Id. at ¶ 2.
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Plaintiff alleges that when he was arrested, he was wearing an
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ankle cast and could not put any weight on his ankle.
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¶ 22.
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cast was removed and replaced with a plastic cast.
Id. at
Police officers took Plaintiff to a hospital, where his
Id.
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Plaintiff alleges that he was taken back to the jail and not
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given crutches or a wheelchair.
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Plaintiff’s arrest, jail staff took him to Correct Care, the
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medical provider located in the jail.
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that Correct Care’s staff removed his plastic cast.
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Plaintiff alleges that due to his cast being removed, he had to
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walk on his unhealed ankle to shower, use the bathroom, and walk
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up the stairs to make his court appearances.
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alleges that walking on his unhealed ankle caused “extreme pain”
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and “unnecessary re-injury and trauma to his ankle.”
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Id. ¶ 23.
Id.
Three days after
Plaintiff alleges
Id.
Id.
Plaintiff
Id. ¶ 24.
About a month after Plaintiff was arrested, jail staff took
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him to see Dr. Berrien.
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Plaintiff that he needed surgery on his ankle as soon as
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possible.
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Id.
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(allegedly an employee of Correct Care) told him that he had
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cancelled Plaintiff’s surgery with Dr. Berrien because, in Dr.
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Gustaveson’s opinion, “the ankle was too badly damaged to be
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repaired and therefore the proposed surgery was worthless.”
Id.
Id. ¶ 26.
Dr. Berrien allegedly told
Dr. Berrien scheduled the surgery for mid-March.
Plaintiff alleges that on March 7, 2013, Dr. Gustaveson
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Id.
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Plaintiff also alleges that Dr. Gustaveson informed him that he
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would be “crippled for the rest of his life.”
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information allegedly caused Plaintiff severe emotional
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distress.
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Id.
This
Id.
A few months later, Plaintiff met with Dr. Berrien again,
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and Dr. Berrien told him that he needed reconstructive surgery.
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Id. ¶ 33.
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Plaintiff’s ankle.
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[Plaintiff] sustained to the ankle due to denial of care and
On June 20, 2013, Dr. Berrien performed surgery on
Id.
Plaintiff alleges that “the damage
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forced walking on the fractured, healing ankle diminished his
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chances for a successful outcome from the second surgery.”
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Plaintiff alleges that his ankle may need amputation in the
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future.
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Id.
Id.
On July 22, 2014, Plaintiff sued Stanislaus County and
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Sheriff Adam Christianson (Doc. #1).
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Court granted Plaintiff leave to amend his complaint (Doc. #10).
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Plaintiff did not file his amended complaint before the Court
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issued its scheduling order on December 3, 2014 (Doc. #12).
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scheduling order, in relevant part, states the following:
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On November 11, 2014, this
SERVICE OF PROCESS
All parties defendant to this lawsuit have been
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served and no further service will be permitted except
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with leave of court, good cause having been shown.
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JOINDER OF ADDITIONAL PARTIES/AMENDMENTS
No further joinder of parties or amendments to
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pleadings is permitted except with leave of court,
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good cause having been shown.
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. . .
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The
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FICTITIOUSLY-NAMED DEFENDANTS
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This action, including any counterclaims, cross-
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claims, and third party complaints is hereby DISMISSED
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as to all DOE or other fictitiously-named defendants.
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. . .
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OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER
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This Status Order will become final without
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further Order of Court unless objection is lodged
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within seven (7) days of the date of the filing of
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this Order.
Order at 1, 2, 6.
On February 12, 2015, Plaintiff filed his FAC.
On October
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14, 2015, Correct Care moved to dismiss Plaintiff’s claims
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against Correct Care, arguing that Plaintiff’s claims are barred
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by the Court’s scheduling order and the statute of limitations.
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Plaintiff opposed the motion and moved for leave to amend in the
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same document (Doc. #18).
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II.
A.
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OPINION
Analysis
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Correct Care’s Motion to Dismiss
“A scheduling order is not a frivolous piece of paper, idly
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entered, which can be cavalierly disregarded by counsel without
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peril.”
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(9th Cir. 1992) (internal quotation marks omitted).
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court has the discretion to determine whether a scheduling order
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precludes amendments or joinder of parties after the deadline
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indicated by the scheduling order.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610
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Id. at 607.
A district
Once the
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deadline set forth by the scheduling order to file an amendment
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or join additional parties has passed, the liberal Federal Rule
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of Civil Procedure 15 standard for amending a complaint no
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longer applies.
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control.
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Id. at 607-608.
Instead, Rule 16’s standards
Id.
Rule 16 requires the Court to enter a scheduling order that
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limits the time to join other parties and to amend the
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pleadings.
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only for good cause and with the judge’s consent.”
Fed. R. Civ. P. 16(b).
“A schedule may be modified
Id.
The
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Ninth Circuit “has indicated that a party seeking to amend a
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pleading after the scheduling order deadline has expired should
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first seek leave to amend the scheduling order.”
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Stobie, 2010 WL 5110083, at *3 (D. Idaho Dec. 7, 2010).
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Mays v.
Here, the Court granted Plaintiff leave to amend his
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complaint on November 21, 2014 (Doc. #10).
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the Court issued a scheduling order which indicated that no
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party could amend their pleadings or join any additional parties
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without leave of the Court (Doc. #12).
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any of the defendants objected to the scheduling order, and the
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order became final on December 10, 2014 (Doc. #12).
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On December 3, 2014,
Neither Plaintiff nor
On February 12, 2015, Plaintiff filed the FAC (Doc. #13).
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The FAC added Correct Care as a defendant.
FAC ¶ 13.
Plaintiff
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did not seek permission from the Court either to file an amended
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complaint after the scheduling order had been issued or to join
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any additional parties.
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Holman, Negeley, Nichols, Campbell, Clifton, and Duncan filed an
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answer to Plaintiff’s FAC (Doc. #15).
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in the other defendants’ answer or file its own answer.
Defendants Christianson, Maxwell,
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Correct Care did not join
See
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Answer at 1.
Plaintiff’s attempted joinder of Correct Care violated the
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Court’s scheduling order.
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Plaintiff’s claims against Correct Care.
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however, to dismiss the FAC in its entirety, as Correct Care
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requested in its motion to dismiss.
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answering defendants did not raise the issue of Plaintiff’s
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noncompliance with the Court’s scheduling order nor join in
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Correct Care’s motion to dismiss herein.
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The Court therefore dismisses
The Court declines,
See Mot. at 2.
The
2. Plaintiff’s Motion for Leave to Amend
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Together with Plaintiff’s opposition to Correct Care’s
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motion to dismiss, Plaintiff brought a motion for leave to amend
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the FAC to join Correct Care.
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when a motion for leave to join a party is filed after the
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scheduling order deadline, the party seeking to join the new
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party must show “good cause.”
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good cause standard under Rule 16 “primarily considers the
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diligence of the party seeking the amendment.”
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F.2d at 609.
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joinder of additional parties must show that scheduling
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deadlines could not be met despite the party’s diligence.
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The possibility of “prejudice to the party opposing modification
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might supply additional reasons to deny [modification],
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[however], the focus of the inquiry is upon the moving party’s
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reasons for seeking modification.”
Opp. at 6-8.
As discussed above,
Fed. R. Civ. P. 16(b)(4).
The
Johnson, 975
To show good cause, the party seeking amendment or
Id.
Id.
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In Plaintiff’s motion for leave to amend, he states that
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Plaintiff’s attorney, Larry Peluso, “read and understood” the
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Court’s December 3, 2014 scheduling order and began writing the
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FAC.
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would become final seven days after the date of the order.
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Order at 6.
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amendments or joinder of parties without leave of the Court.
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Id. at 1.
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have either objected to the dates in the scheduling order or
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asked the Court for leave to file an amended complaint and join
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an additional party. He did neither. Instead, Mr. Peluso ignored
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the terms of the scheduling order that he had “read and
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Opp. at 8.
The scheduling order clearly indicated that it
The scheduling order also disallowed any additional
After reading the scheduling order, Mr. Peluso should
understood” and began drafting the FAC.
See Opp. at 8.
Mr. Peluso collapsed from liver failure two weeks after
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reading the scheduling order.
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Julia Swanson, completed the FAC for Mr. Peluso.
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Court is sympathetic to Mr. Peluso’s health issue, it does not
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excuse Plaintiff from requesting leave to amend or a change in
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the scheduling order before filing the amended complaint.
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attorney working on the case, Ms. Swanson had the duty to read
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the Court’s scheduling order and comply with it, even if she was
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not working on the case when the scheduling order was issued.
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Fed. R. Civ. P. 16(f); see also Balt. Therapeutic Equip. Co. v.
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Loredan Biomedical, Inc., 1993 WL 129781, at *17 (E.D. Cal. Feb.
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19, 1993) (“[A] party’s attorney” has the “[d]uty to obey the
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Court’s scheduling orders.”). At no time prior to filing the FAC
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or Plaintiff’s opposition to this Motion to Dismiss did Ms.
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Swanson ask the Court for leave to amend the complaint or to
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join an additional party.
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Id.
Mr. Peluso’s law partner,
Id.
While the
As an
The Court finds that neither of Plaintiff’s attorneys acted
diligently, and Plaintiff fails to show good cause for leave to
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amend to join Correct Care.
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amend is denied.
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As such, Plaintiff’s motion to
The parties also dispute whether Plaintiff’s claims against
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Correct Care are barred by statutes of limitations.
Because
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Plaintiff’s claims against Correct Care are dismissed for the
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reasons stated above, the Court need not reach the statute of
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limitations issue.
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III.
ORDER
For the reasons set forth above, the Court GRANTS WITH
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PREJUDICE Correct Care’s motion to dismiss and DENIES
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Plaintiff’s motion for leave to amend:
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IT IS SO ORDERED.
Dated:
December 11, 2015
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