Doutherd v. Montesdeoca, et al

Filing 122

MEMORANDUM and ORDER signed by District Judge Morrison C. England, Jr. on 11/19/2019 DENYING 89 Motion for Reconsideration and 101 Motion to Amend, and DIRECTING the Clerk of the Court to tax costs in the amount of $3,517.74 as set forth in 118 Bill of Costs. (Huang, H)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

TYRONE DOUTHERD,

12

Plaintiff,

13
14
15
16
17

No. 2:17-cv-02225-MCE-EFB

v.

MEMORANDUM AND ORDER

DORIS MARIE MONTESDEOCA;
Estate of LUCILLE J. SMITH,
deceased; UNITED PARCEL
SERVICE, INC.; LIBERTY MUTUAL
INSURANCE COMPANY; HARMONY
HOME CARE, INC.; and DOES 1
through 30, inclusive,

18

Defendants.

19
20

Plaintiff Tyrone Doutherd (“Plaintiff”) seeks, inter alia, an award of compensatory

21

and punitive damages against Defendants Liberty Mutual Insurance Company (“Liberty

22

Mutual”) and UPS Ground Freight, Inc. (“UPSF”)1 for their roles in the alleged

23

mishandling of Plaintiff’s Workers’ Compensation claim following a vehicle accident that

24

occurred while Plaintiff was on the job.2 On March 22, 2019, this Court dismissed all

25

claims against Liberty Mutual with prejudice. ECF No. 96. Presently before the Court

26
27
28

1

UPSF was sued erroneously as United Parcel Service, Inc.

2
Plaintiff additionally seeks redress from the driver of the car, the owner of that car, and the
employer of the driver. Because the present motions are brought by UPSF and Liberty Mutual,
respectively, the scope of the Court’s Memorandum and Order is limited to those Defendants.

1

1

are three motions: (1) Plaintiff’s Motion for Reconsideration of the Order granting UPSF’s

2

lien application, ECF No. 89; (2) Plaintiff’s Motion to Amend the First Amended

3

Complaint (“FAC”), ECF No. 101; and (3) Liberty Mutual’s Bill of Costs, ECF No. 118.

4

For the reasons set forth below, Plaintiff’s Motion for Reconsideration is DENIED,

5

Plaintiff’s Motion to Amend the FAC is also DENIED, and Liberty Mutual’s Bill of Costs is

6

APPROVED.3

7
8

BACKGROUND4

9
10

Plaintiff’s claims arise out of an August 27, 2015, collision with a car driven by

11

Defendant Doris Montesdoeca. Plaintiff was operating a loaded transport truck and

12

trailer owned by UPSF. Plaintiff claims that Montesdoeca was fighting with a male

13

passenger in the back seat when she lost control of the car and careened into the

14

divider. The car rebounded from the divider and smashed into the front passenger side

15

of Plaintiff’s truck.

16

Plaintiff claims to have suffered significant back and shoulder pain as well as knee

17

damage as a result of the accident. He visited the emergency room thereafter, began a

18

course of physical therapy, and returned to work for seven weeks of “light duty” when

19

permitted to do so. At the end of the seven weeks, Plaintiff was required to return to full

20

duty, purportedly before he was healed. He had no more treatment, therapy, or

21

prescribed medication and was not re-evaluated to determine his readiness to return to

22

work.

23

According to Plaintiff, UPSF initially prepared a Workers’ Compensation claim on

24

behalf of Plaintiff but did not advise him on his rights to benefits or compensation.

25

Plaintiff did not know if the forms were submitted or if his claims were processed. He

26
27

3

Because oral argument would not be of material assistance, the Court ordered these matters
submitted on the briefs. E.D. Cal. Local Rule 230(g).
4

28

The background facts and allegations in this section are derived from this Court’s prior Order,
ECF No. 96.

2

1

learned his claim was opened and then closed in November 2015 from the “vehicle

2

owner’s insurance carrier,” not from UPSF or Liberty Mutual.

3

Plaintiff initiated the present action in Sacramento Superior Court on August 25,

4

2017, claiming, in part, that UPSF and Liberty Mutual acted in concert to adopt an illegal

5

pattern and practice of refusing to process Workers’ Compensation claims for injured

6

UPSF employees. The case was removed to this Court on October 24, 2017, (ECF

7

No. 1) and the Initial Pretrial Scheduling Order (“PTSO”) was issued the following day

8

(ECF No. 4).

9

On November 2, 2017, Liberty Mutual filed a Motion to Dismiss Plaintiff’s

10

Complaint on grounds that the claims were barred by the exclusivity rule of the Workers’

11

Compensation Act (“WCA”). ECF No. 8. On August 14, 2018, the Court granted Liberty

12

Mutual’s Motion to Dismiss Plaintiff’s Sixth and Seventh Causes of Action with leave to

13

amend, giving Plaintiff one opportunity to assert a viable cause of action against Liberty

14

Mutual. ECF No. 31. On September 14, 2018, Plaintiff filed his FAC, adding new

15

allegations and causes of action against UPSF. ECF Nos. 33, 34. On September 26,

16

2018, UPSF filed a Motion to Strike those additions to the FAC on grounds that Plaintiff

17

failed to obtain leave to amend. ECF No. 36.

18

On September 28, 2018, UPSF filed an Application for Lien, claiming a first lien

19

against any settlement or judgment in this action, and in the amount of any additional

20

sum which hereafter may be paid as workers’ compensation benefits to or on behalf of

21

Plaintiff. ECF No. 42. Plaintiff filed objections on December 12, 2018. ECF No. 64. On

22

December 20, 2018, UPSF filed an Amended Application for Lien (ECF No. 75), and

23

Plaintiff filed objections on December 31, 2018 (ECF No. 82). This Court granted

24

UPSF’s amended application on January 2, 2019; however, the Order was signed on

25

December 30, 2018. ECF No. 83.

26

On March 22, 2019, this Court dismissed Plaintiff’s claims against Liberty Mutual

27

without leave to amend and granted UPSF’s Motion to Strike, finding that Plaintiff failed

28

to seek leave to amend his complaint as to UPSF and must either meet and confer with
3

1

UPSF or seek the Court’s leave to file an amended complaint. ECF No. 96. On April 9,

2

2019, Plaintiff filed a Motion to Amend the FAC. ECF No. 101.

3
4

STANDARD

5
6

A.

7

A court should not revisit its own decisions unless extraordinary circumstances

Motion for Reconsideration

8

show that its prior decision was wrong. Christianson v. Colt Indus. Operating Corp.,

9

486 U.S. 800, 816 (1988). This principle is generally embodied in the law of the case

10

doctrine. That doctrine counsels against reopening questions once resolved in ongoing

11

litigation. Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 (9th Cir.

12

1989) (citing 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

13

§ 4478). Nonetheless, a court order resolving fewer than all of the claims among all of

14

the parties is “subject to revision at any time before the entry of judgment adjudicating all

15

the claims and the rights and liabilities of all the parties.” Fed. R. Civ. P. 54(b). Where

16

reconsideration of a non-final order is sought, the court has “inherent jurisdiction to

17

modify, alter or revoke it.” United States v. Martin, 226 F.3d 1042, 1048-49 (9th Cir.

18

2000), cert. denied, 532 U.S. 1002 (2001). The major grounds that justify

19

reconsideration involve an intervening change of controlling law, the availability of new

20

evidence, or the need to correct a clear error or prevent manifest injustice. Pyramid,

21

882 F.2d at 369.

22

B.

23

Generally, a motion to amend is subject to Rule 15(a) of the Federal Rules of Civil

Motion to Amend Complaint

24

Procedure,5 which provides that “[t]he court should freely give leave [to amend] when

25

justice so requires.” Fed. R. Civ. P. 15(a)(2). However, “[o]nce the district court ha[s]

26

filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16[,] which

27
5

28

All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise noted.

4

1

establishe[s] a timetable for amending pleadings[,] that rule’s standards control[].”

2

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992); see In re

3

W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013).

4

Rule 16(b) requires a party seeking leave to amend to demonstrate “good cause.”

5

Fed. R. Civ. P. 16(b). “Rule 16(b)’s ‘good cause’ standard primarily considers the

6

diligence of the party seeking amendment.” Johnson, 975 F.2d at 609. “If that party was

7

not diligent, the inquiry should end.” Id. Although “the focus of the inquiry is upon the

8

moving party’s reasons for seeking modification,” a court may make its determination by

9

noting the prejudice to the other parties. Id.

10

If good cause is found, the court must then evaluate the request to amend in light

11

of Rule 15(a)’s liberal standard. Id. at 608. Leave to amend should be granted unless

12

amendment: (1) would cause prejudice to the opposing party, (2) is sought in bad faith,

13

(3) creates undue delay, (4) or is futile. Chudacoff v. Univ. Med. Ctr. of S. Nev., 649

14

F.3d 1143, 1153 (9th Cir. 2011) (citing Foman v. Davis, 371 U.S. 178, 182

15

(1962)). “Because Rule 16(b)’s ‘good cause’ inquiry essentially incorporates the first

16

three factors, if a court finds that good cause exists, it should then deny a motion for

17

leave to amend only if such amendment would be futile.” Baisa v. Indymac Fed.

18

Reserve, No. 2:09-CV-01464-WBS-JFM, 2010 WL 2348736, at *1 (E.D. Cal. June 7,

19

2010).

20
21

ANALYSIS

22
23

A.

24

Plaintiff asks the Court to reconsider its decision to grant UPSF’s lien application.

25

Plaintiff’s request for reconsideration here is premised on two contentions. First, Plaintiff

26

argues the Court’s decision was premature because it failed to consider Plaintiff’s

27

objections. Second, Plaintiff claims the lien is unfair and “a serious violation of the letter

28

and spirit of the workers’ compensation statutes.” See ECF No. 89, at 4. As set forth

Plaintiff’s Motion for Reconsideration

5

1
2

below, neither argument is persuasive.
Plaintiff’s contention that the Order was premature is premised on the fact that the

3

Order was signed on December 30 but entered on January 2, and Plaintiff filed his

4

objections on December 31. The Court notes that UPSF filed its original lien application

5

in September 2018, but Plaintiff waited to file objections until December 12, 2018.

6

Regardless, Plaintiff’s objections to both applications are substantially similar, thus the

7

outcome would not have been different.

8
9

As for Plaintiff’s argument that the Court’s decision is erroneous, Plaintiff fails to
show newly discovered evidence, clear error, or intervening change in controlling law.

10

See Pyramid Lake, 882 F.2d at 369. Instead, this Motion is premised on the same facts

11

and arguments raised in the objections to both of UPSF’s applications. Plaintiff

12

ultimately disagrees with the Court’s ruling, which is insufficient to justify reconsideration.

13

See Fay Avenue Properties, LLC v. Travelers Property Cas. Co. of Am., No. 11CV2389-

14

GPC (WVG), 2014 WL 6980248, at *2 (S.D. Cal. Dec. 9, 2014) (“Moreover, a motion for

15

reconsideration cannot be used to ask the Court to rethink what the Court has already

16

thought through merely because a party disagrees with the Court’s decision.”).

17

Therefore, Plaintiff’s Motion for Reconsideration is DENIED.

18

B.

19

Through this Motion, Plaintiff seeks leave to file a Second Amended Complaint

Plaintiff’s Motion to Amend the FAC

20

(“SAC”) adding multiple factual allegations against UPSF. ECF No. 101, at 2. A PTSO

21

was issued on October 25, 2017, thus Plaintiff’s ability to amend his FAC is governed by

22

Rule 16(b), not Rule 15(a) as contended by Plaintiff.

23

Plaintiff fails to demonstrate “good cause” as required by Rule 16(b)(4). Plaintiff

24

was not diligent in asserting his new allegations contained in the proposed SAC. Under

25

Rule 16, the core inquiry is whether the moving party acted diligently prior to filing the

26

amendment. See Johnson, 975 F.2d at 609. There is a presumption against finding

27

good cause “when the facts and the theory have been known to the party seeking

28

amendment since the inception of the cause of action.” Coleman v. Quaker Oats Co.,
6

1

232 F.3d 1271, 1295 (9th Cir. 2000) (citing Acri v. Int’l Ass’n of Machinists and

2

Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986)). If the moving party does not

3

“offer any explanation for their failure to amend their complaints earlier[,]” the motion

4

may be dismissed. Id.

5

Here, Plaintiff knew the alleged facts prior to filing his FAC but now seeks to

6

assert them in the proposed SAC. See Coleman, 232 F.3d at 1295. Most of the facts

7

occurred in 2017 and were known to Plaintiff before discovery concluded in December

8

2018. In fact, many of the allegations were previously asserted against Liberty Mutual,

9

but this Court already found those claims were barred by the WCA’s exclusive

10

jurisdiction. See ECF No. 96, at 6-7. Moreover, even if the Court were to find that

11

Plaintiff acted diligently in seeking to amend, the motion would be denied under Rule 15

12

because such amendment would prejudice UPSF and would create substantial delay in

13

this case. Plaintiff’s proposal of adding new facts relating to UPSF’s alleged retaliation

14

between Plaintiff’s last day of work in June 2018 and the close of discovery in December

15

2018 essentially asks the Court to allow him to file a new lawsuit long after discovery has

16

closed. Such an amendment would require the Court to reopen discovery to allow the

17

parties to develop these new allegations. For the above reasons, Plaintiff’s Motion to

18

Amend the FAC is DENIED.

19

C.

20

Liberty Mutual seeks fees totaling $3,517.74 for printed or electronically recorded

Liberty Mutual’s Bill of Costs

21

transcripts necessarily obtained for use in the case. Under Rule 54(d), the prevailing

22

party in a lawsuit may recover its costs “unless the court otherwise directs.” Plaintiff

23

objects on the basis that Liberty Mutual was not required to purchase transcripts

24

because its counsel attended the depositions and minimally participated in the discovery

25

process. ECF No. 119. Plaintiff’s argument lacks merit. The transcripts obtained were

26

reasonable under the circumstances of this case, and the costs incurred are appropriate.

27

See 28 U.S.C. § 1920(2). Accordingly, the Court taxes all costs sought by Liberty

28

Mutual.
7

1

CONCLUSION

2
3

For all the foregoing reasons, Plaintiff’s Motion for Reconsideration, ECF No. 89,

4

and Motion to Amend the FAC, ECF No. 101, are both DENIED. In addition, the Clerk of

5

the Court is directed to tax costs in the amount of $3,517.74 as set forth in Liberty

6

Mutual’s Bill of Costs, ECF No. 118.

7

IT IS SO ORDERED.

8

DATED: November 19, 2019

9
10
11
12

_______________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8