Sommer v. United States of America et al

Filing 141

ORDER: The Objection to Order Denying Without Prejudice Ex Parte Application to Amend Scheduling Order (Doc. 120 ) filed by Plaintiff is denied. Signed by Judge William Q. Hayes on 2/3/2012. (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CYNTHIA SOMMER, CASE NO. 09cv2093 WQH (WMc) 12 Plaintiff, vs. UNITED STATES OF AMERICA, ROB TERWILLIGER, RICK RENDON, MARK RIDLEY, S.D. ADAMS, JOSE CENTENO, COUNTY OF SAN DIEGO MEDICAL EXAMINER’S OFFICE, GLENN N. WAGNER, COUNTY OF SAN DIEGO DISTRICT ATTORNEY’s OFFICE, BONNIE DUMANIS, LAURA GUNN, and DOES 1 through 100, inclusive, ORDER 13 14 15 16 17 18 Defendants. 19 20 HAYES, Judge: 21 The matter before the Court is the Objection to Order Denying Without Prejudice Ex 22 Parte Application to Amend Scheduling Order filed by Plaintiff Cynthia Sommer. (ECF No. 23 120). 24 I. Background 25 On September 24, 2009, Plaintiff Cynthia Sommer initiated this action by filing the 26 Complaint. (ECF No. 1). Plaintiff alleges that her husband, Todd Sommer, a 23-year-old 27 Sergeant in the United States Marine Corps, died of a cardiac arrhythmia in February of 2002. 28 Plaintiff alleges that the results of an autopsy showed that Todd Sommer died of natural causes. -1- 09cv2093 WQH (WMc) 1 Plaintiff alleges that “Defendants refused to accept those results and embarked upon an 2 investigation intended to find criminal conduct” by Plaintiff. Id. at ¶ 21. Plaintiff alleges 3 Defendants “knew or should have known during the investigation ... that there was no evidence” 4 that Plaintiff killed Todd Sommer. Id. at ¶ 32. Plaintiff alleges that she was wrongfully tried 5 and convicted for murdering her husband. Plaintiff alleges that her conviction was overturned 6 and she was granted a new trial on November 30, 2007. Id. at 52. Plaintiff asserts a claim for 7 violation of her Fourth, Fifth, and Fourteenth Amendments rights pursuant to 42 U.S.C. § 1983. 8 On December 12, 2011, Plaintiff filed an Ex Parte Application for Modification of the 9 Court’s Scheduling Order to Permit Amending the Complaint. (ECF No. 107). Plaintiff 10 contends that the last depositions were completed on October 24, 2011, and “[d]uring the course 11 of deposition, Plaintiff learned for the first time about key evidence relating to the allegations 12 in Plaintiff’s Complaint.” Id. at 2. Plaintiff contends that “[t]he proposed First Amended 13 Complaint alleges new facts to prove claims already made in the Complaint.” Id. at 5. Plaintiff 14 states that “Plaintiff has not named any new parties that will need to be served.” Id. Plaintiff 15 did not submit a copy of the proposed First Amended Complaint or identify the new facts to be 16 alleged. 17 On December 21, 2011, the Honorable Magistrate Judge Bernard G. Skomal issued an 18 Order Denying Without Prejudice Ex Parte Application to Amend Scheduling Order. (ECF No. 19 118). The Magistrate Judge did not find that Plaintiff showed good cause for modifying the 20 scheduling order. 21 On December 23, 2011, Plaintiff filed an Objection to the Magistrate Judge’s Order. 22 (ECF No. 120). On January 18, 2012, Defendants Dumanis, Gunn and Wagner filed an 23 Opposition. (ECF No. 129). On January 18, 2012, the United States filed an Opposition. (ECF 24 No. 130). On January 25, 2012, Plaintiff filed a Reply. (ECF No. 132). 25 II. Discussion 26 Plaintiff objects to the Magistrate Judge’s Order denying her motion to modify the 27 scheduling order to allow her to file a motion for leave to file an amended complaint. Plaintiff 28 contends that she showed good cause for modifying the scheduling order. Plaintiff contends that -2- 09cv2093 WQH (WMc) 1 Defendants will not be prejudiced by allowing a modification of the scheduling order because 2 the deadline for filing of dispositive motions could be extended as well and additional time could 3 be given for discovery.1/ 4 “Where a magistrate is designated to hear a discovery motion, ‘[a] judge of the court may 5 reconsider any pretrial matter ... where it has been shown that the magistrate’s order is clearly 6 erroneous or contrary to law.’” Rockwell Int’l, Inc. v. Pos-A-Traction Indus., Inc., 712 F.2d 7 1324, 1325 (9th Cir. 1983) (quoting 28 U.S.C. § 636(b)(1)(A)); see also Fed. R. Civ. P. 72(a) 8 (“[t]he district judge in the case must consider timely objections [to nondispositive matters] and 9 modify or set aside any part of the order that is clearly erroneous or is contrary to law.”). 10 “Matters concerning discovery generally are considered ‘nondispositive’ of the litigation.” See 11 Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). “Review under the 12 clearly erroneous standard is significantly deferential, requiring a definite and firm conviction 13 that a mistake has been committed.” Concrete Pipe & Prod. v. Constr. Laborers Pension Trust, 14 508 U.S. 602, 623 (1993) (quotation omitted); see also Hernandez v. Tanninen, 604 F.3d 1095, 15 1100 (9th Cir. 2010) (same). “[T]he magistrate judge’s decision ... is entitled to great deference 16 by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). 17 Federal Rule of Civil Procedure 16 states that “A schedule may be modified only for good 18 cause and with the judge’s consent.” When the motion to extend time is made after time has 19 expired, “the court may, for good cause, extend the time ... if the party failed to act because of 20 excusable neglect.” Fed. R. Civ. P 6(b)(1). The determination of excusable neglect takes into 21 account: “(1) the danger of prejudice; (2) the length of the delay and its potential impact on 22 judicial proceedings; (3) the reasons for the delay which includes whether it was within the 23 reasonable control of the party seeking to show excusable neglect; and (4) whether that party 24 acted in good faith.” Coleman v. Blue Cross Blue Shield of Kan., 487 F. Supp. 2d 1225, 1234-35 25 (D. Kan. 2007). 26 27 28 1/ On December 16, 2011, Defendants County of San Diego District Attorney's Office, County of San Diego Medical Examiner's Office, Bonnie Dumanis, Laura Gunn, Glenn N Wagner filed a Motion for Summary Judgment. (ECF No. 112). On December 16, 2011, the United States filed a Motion for Summary Judgment. (ECF No. 114). -3- 09cv2093 WQH (WMc) 1 “When the proposed modification is an amendment to the pleadings, the moving party 2 may establish good cause by showing ‘(1) that [he or she] was diligent in assisting the court in 3 creating a workable Rule 16 order; (2) that [his or her] noncompliance with a rule 16 deadline 4 occurred or will occur, notwithstanding [his or her] diligent efforts to comply, because of the 5 development of matters which could not have been reasonably foreseen or anticipated at the time 6 of the Rule 16 scheduling conference; and (3) that [he or she] was diligent in seeking amendment 7 of the Rule 16 order, once it became apparent that [he or she] could not comply with the order.’” 8 Hood v. Hartford Life and Accident Ins. Co., 567 F. Supp. 2d 1221, 1225-26 (citing Jackson v. 9 Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted)). 10 The Magistrate Judge found that Plaintiff completed all fact witness depositions more 11 than three months before seeking to modify the scheduling order. The Magistrate Judge found 12 that Defendants may be prejudiced by allowing Plaintiff to amend the scheduling order after 13 discovery ended. The Magistrate Judge stated: In order for the Court to determine that Plaintiff was diligent in seeking amendment, Plaintiff must first specify what new and previously unavailable facts she learned during depositions and the particular dates these facts were learned. Plaintiff must also specify why the need to amend the pleadings could not have been reasonably foreseen or anticipated during any of the previous amendments to the scheduling order. In addition, Plaintiff must adequately explain why she waited at least three months after learning the new facts before filing her motion to amend. Accordingly, the Court does not find that Plaintiff has established good cause to amend the schedule at this late stage in the case. 14 15 16 17 18 19 20 (ECF No. 118 at 3-4). The Magistrate Judge denied Plaintiff’s request to modify the scheduling 21 order without prejudice. The Court does not find that the Magistrate Judge’s order is clearly 22 erroneous or contrary to law. 23 III. 24 Conclusion IT IS HEREBY ORDERED that the Objection to Order Denying Without Prejudice Ex 25 Parte Application to Amend Scheduling Order (ECF No. 120) filed by Plaintiff is DENIED. 26 DATED: February 3, 2012 27 28 WILLIAM Q. HAYES United States District Judge -4- 09cv2093 WQH (WMc)

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