Sommer v. United States of America et al
Filing
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ORDER denying without prejudice 107 Ex Parte Application to Amend Scheduling Order. Signed by Magistrate Judge Bernard G. Skomal on 12/21/11. (lao)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CYNTHIA SOMMER,
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Plaintiff,
vs.
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UNITED STATES OF AMERICA,
COUNTY OF SAN DIEGO MEDICAL
EXAMINER’S OFFICE, GLENN N.
WAGNER, COUNTY OF SAN DIEGO
DISTRICT ATTORNEY’S OFFICE,
BONNIE DUMANIS, LAURA GUNN,
Defendants.
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Case No. 09cv2093-WQH (BGS)
ORDER DENYING WITHOUT PREJUDICE
EX PARTE APPLICATION TO AMEND
SCHEDULING ORDER
[Doc. No. 107]
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Procedural Background
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Plaintiff, Cynthia Sommer, filed this lawsuit on September 24, 2009. (Doc. No. 1.) On April
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26, 2010, Magistrate Judge William McCurine issued a scheduling order. (Doc. No. 30.) The
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Scheduling Order set May 24, 2010 as the deadline for moving to amend the pleadings. Id. The parties,
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however, only conducted limited document discovery prior to dismissing Plaintiff’s claim against Jose
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Centeno in his individual capacity. (Doc. No. 65.) Pursuant to the most recent scheduling orders, all
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fact discovery was to be completed by September 2, 2011 and all expert discovery was to be completed
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no later than November 18, 2011. (Doc. Nos. 97, 101.)
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Ex Parte Application to Amend Scheduling Order
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On December 12, 2011, Plaintiff filed an Ex Parte Application to Amend the Court’s Scheduling
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Order to permit Plaintiff to file a motion to amend the complaint. (Doc. No. 107.) Plaintiff argues that
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deposition testimony from 16 fact witnesses revealed new evidence supporting her conspiracy and
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Deveauraux claims. Plaintiff further argues that the newly discovered facts will bolster the claims in
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the original complaint but will not plead new claims or name new parties. (Doc. No. 107 at 5.)
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A. Legal Standard
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Federal Rule of Civil Procedure 16 states that “A schedule may be modified only for good cause
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and with the judge’s consent.” When the motion to extend time is made after time has expired, “the
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court may, for good cause, extend the time . . . if the party failed to act because of excusable neglect.”
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Fed. R. Civ. P 6(b)(1). The determination of excusable neglect takes into account: “(1) the danger of
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prejudice; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reasons
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for the delay which includes whether it was within the reasonable control of the party seeking to show
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excusable neglect; and (4) whether that party acted in good faith.” Coleman v. Blue Cross Blue Shield
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of Kan., 487 F. Supp. 2d 1225, 1234-35 (D. Kan. 2007).
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“When the proposed modification is an amendment to the pleadings, the moving party may
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establish good cause by showing ‘(1) that [he or she] was diligent in assisting the court in creating a
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workable Rule 16 order; (2) that [his or her] noncompliance with a rule 16 deadline occurred or will
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occur, notwithstanding [his or her] diligent efforts to comply, because of the development of matters
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which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling
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conference; and (3) that [he or she] was diligent in seeking amendment of the Rule 16 order, once it
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became apparent that [he or she] could not comply with the order.’” Hood v. Hartford Life and Accident
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Ins. Co., 567 F.Supp. 2d 1221, 1225-26 (citing Jackson v. Laureate, Inc., 186 F.R.D. 605, 608
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(E.D.Cal.1999) (citations omitted)).
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09cv2093
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B. Analysis
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Fact depositions began in this case more than one year ago. (Doc. No. 65 at 2.) And in April
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2011, the parties requested to amend the scheduling order a second time, but Plaintiff made no mention
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of needing to amend the complaint in order to incorporate new facts learned during discovery. In July
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2011, Plaintiff requested court approval to take more than 10 fact witness depositions because “recent
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discovery” revealed the need to depose four additional witnesses. (Doc. No. 93.) Plaintiff, however,
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did not mention the potential need to amend the scheduling order to file a motion to amend the
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complaint based on what was learned during the recent discovery. Moreover, in August 2011, the
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parties requested that the scheduling order be amended once again to allow more time to complete
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expert discovery. (Doc. No. 99.) Nevertheless, Plaintiff did not request that the schedule also be
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amended to allow her to file a motion to amend the pleadings based on what was learned during
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discovery thus far.
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Notably, Plaintiff should have completed all fact witness depositions more than three months
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prior to bringing this motion—the Court specifically ordered that the last fact witness depositions be
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completed by September 2, 2011. (Doc. No. 97.) Thus, it appears Plaintiff did not file the instant
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request for amendment promptly after ascertaining the need to do so, especially since the stated need
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is based on information gleaned from depositions.
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Additionally, there is an indication that Defendants will be unduly prejudiced by allowing
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Plaintiff to amend the scheduling order for the purpose of filing a motion to amend the complaint after
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discovery has ended. Plaintiff’s request to amend the scheduling order was made less than 10 days
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before the December 16, 2011 dispositive motions filing deadline. Plaintiff has not shown any
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justification for failing to move to amend the scheduling order and her complaint earlier in the litigation.
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At a minimum, Plaintiff should have moved to amend the scheduling order and the complaint around
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October 20, 2011, when counsel determined that the complaint needed to be amended. See Decl.
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Barber, Doc. No. 107 at 7 (stating that on October 20, 2011, Plaintiff’s counsel attempted to reach an
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agreement with Defendants to permit the filing of an amended complaint).
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In order for the Court to determine that Plaintiff was diligent in seeking amendment, Plaintiff
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must first specify what new and previously unavailable facts she learned during depositions and the
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09cv2093
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particular dates these facts were learned. Plaintiff must also specify why the need to amend the
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pleadings could not have been reasonably foreseen or anticipated during any of the previous
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amendments to the scheduling order. In addition, Plaintiff must adequately explain why she waited at
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least three months after learning the new facts before filing her motion to amend. Accordingly, the
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Court does not find that Plaintiff has established good cause to amend the schedule at this late stage in
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the case. Plaintiff’s request to amend the scheduling order so that she can file a motion to amend the
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complaint is DENIED without prejudice.
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IT IS SO ORDERED.
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DATED: December 21, 2011
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Hon. Bernard G. Skomal
U.S. Magistrate Judge
United States District Court
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09cv2093
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