Heilman v. Cook et al

Filing 157

ORDER (1) Overruling Plaintiff's Objections; (2) adopting 123 Report and Recommendation; and (3) Denies Plaintiff's Motion to Rejoin Party. Signed by Judge Janis L. Sammartino on 2/24/2017. (All non-registered users served via U.S. Mail Service) (fth)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 THOMAS JOHN HEILMAN, CDCR #H-76785, 15 ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS; AND (2) ADOPTING REPORT AND RECOMMENDATION Plaintiff, 13 14 Case No.: 14-CV-1412 JLS (MDD) v. J. COOK, et al., Defendants. 16 (ECF Nos. 95, 123, 130) 17 Presently before the Court are: (1) Magistrate Judge Mitchell D. Dembin’s Report 18 and Recommendation (“R&R”) advising that the Court deny Plaintiff’s motion to rejoin 19 party (“R&R,” ECF No. 123); and (2) Plaintiff Thomas John Heilman’s Objections to the 20 R&R (“R&R Obj.”, ECF No. 130). Having considered the facts and the law, the Court (1) 21 OVERRULES Plaintiff’s Objections, (2) ADOPTS the R&R in its entirety, and (3) 22 DENIES Plaintiff’s motion to rejoin party (ECF No. 95). 23 BACKGROUND 24 Judge Dembin’s R&R contains a thorough and accurate recitation of the factual and 25 procedural histories underlying Plaintiff’s motion to rejoin party. (See R&R 2–4,1 ECF No. 26 123.) This Order incorporates by reference the background as set forth therein. 27 28 1 Pin citations refer to the CM/ECF page numbers electronically stamped at the top of each page. 1 14-CV-1412 JLS (MDD) 1 2 LEGAL STANDARDS I. Review of Report and Recommendation 3 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 4 court’s duties regarding a magistrate judge’s report and recommendation. The district court 5 “shall make a de novo determination of those portions of the report . . . to which objection 6 is made,” and “may accept, reject, or modify, in whole or in part, the findings or 7 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United 8 States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely objection, 9 however, “the Court need only satisfy itself that there is no clear error on the face of the 10 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 11 note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)). 12 II. 13 14 15 16 Amending Complaint to Rejoin Party Judge Dembin correctly set out the legal standards involved in Plaintiff’s motion, which the Court here largely repeats. (See R&R 4–6, ECF No. 123.) Plaintiff’s motion to amend his First Amended Complaint (“FAC”) to rejoin Dr. Chau as a party is governed by Federal Rules of Civil Procedure 15, 16(b)(4), and 21. 17 Once the deadline for joining parties and amending pleadings set in the Rule 16(b) 18 Scheduling Order has passed, no addition of parties or amendment of pleadings is permitted 19 unless the movant shows good cause for modifying the Scheduling Order. Fed. R. Civ. P. 20 16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) 21 (holding that district court did not abuse discretion in denying leave to amend where 22 plaintiff failed to show good cause for amending the scheduling order). 23 Rule 15(a)(2) states “[t]he court should freely give leave [to amend] when justice so 24 requires.” This Rule should be applied with “extreme liberality.” Sonoma Cty. Ass’n of 25 Retired Emp. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (citing Owens v. Kaiser 26 Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)). Nevertheless, courts may 27 decline to grant leave to amend if there is “strong evidence” of “undue delay, bad faith or 28 dilatory motive on the part of the movant, repeated failure to cure deficiencies by 2 14-CV-1412 JLS (MDD) 1 amendments previously allowed, undue prejudice to the opposing party by virtue of 2 allowance of the amendment, [or] futility of amendment, etc.” Id. (quotation omitted). 3 “[T]he consideration of prejudice to the opposing party carries the greatest weight.” (Id.) 4 Amendments seeking to add parties are granted less freely than amendments seeking to 5 add claims. Union Pac. R.R. Co. v. Nev. Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991); 6 see Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 F.3d 1054, 1069 (6th Cir. 7 1995) (denying amendment to add party over one year after complaint filed denied as too 8 prejudicial to new party). 9 Rule 21 concerning “Misjoinder and Nonjoinder of Parties,” states that “[m]isjoinder 10 of parties is not a ground for dismissing an action. On motion or on its own, the court may 11 at any time, on just terms, add or drop a party. The court may also sever any claim against 12 a party.” Here, Plaintiff’s request is more appropriately considered under Rules 15 and 16 13 than Rule 21. Nevertheless, the same test applies to Plaintiff’s request under either Rule. 14 “The liberal standard of Rule 15 also applies to Rule 21 motions.” De Malherbe v. Int’l 15 Union of Elevator Constructors, 438 F. Supp. 1121, 1128 (N.D. Cal. 1977) (citing Fair 16 Housing Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y. 1972)). The test of 17 whether additions or subtractions of parties should be allowed under Rule 21, like the test 18 under Rule 15, is whether such action will prejudice the non-moving party, and whether it 19 will serve to avoid multiplicity of suits. Helene Curtis Indus. v. Sales Affiliates, 105 F. 20 Supp. 886, 900 (S.D.N.Y. 1952), affirmed 199 F.2d 732 (2d Cir. 1952). “[P]rejudice to the 21 non-moving party will defeat a Rule 21 motion.” Sable Commc’ns of Cal. Inc. v. Pac. Tel. 22 & Tel. Co., 890 F.2d 184, 191 n.13 (9th Cir. 1989) (citing Helene Curtis Indus., supra). 23 24 ANALYSIS I. Summary of the R&R Conclusion 25 Judge Dembin concluded that Plaintiff failed to meet his burdens under Rules 15, 26 16(b)(4), and 21 to show re-joinder of Dr. Chau should be granted. (R&R 6, ECF No. 123.) 27 As to Rule 16(b)(4), Judge Dembin concluded that Plaintiff did not claim or attempt 28 to show diligence or a reasonable excuse for the delay. (Id. at 7.) Specifically, Judge 3 14-CV-1412 JLS (MDD) 1 Dembin noted that Plaintiff did not move the Court to modify its Scheduling Order, made 2 no effort to show good cause for modifying the Scheduling Order, and did not explain why 3 he could not meet the scheduling deadline or how he was diligent in attempting to comply 4 with the deadline set for joining parties. (Id. at 6.) Judge Dembin further noted that Plaintiff 5 offered no explanation for why he dismissed Dr. Chau at the outset of discovery only to 6 attempt to rejoin him just as the discovery phase was set to expire. (Id. at 6–7.) For example, 7 Plaintiff pointed to no new information learned through discovery as the impetus to rejoin 8 Dr. Chau, and Judge Dembin noted that Plaintiff’s description of Dr. Chau’s role in the 9 initial complaint mirrored Plaintiff’s allegations about Dr. Chau in his motion to rejoin. 10 (Id. at 7 (compare ECF No. 95, at 4, with ECF No. 1, at 35–38 (both alleging that Dr. Chau 11 falsified medical records to conceal fellow CDCR personnel’s conduct and was 12 deliberately indifferent to Plaintiff’s injuries and the risks of infection))). Thus, Judge 13 Dembin concluded that Plaintiff has not shown diligence in seeking to rejoin Dr. Chau 14 under Rule 16 and recommends that Plaintiff’s motion be denied on this basis. 15 Judge Dembin similarly concluded that Plaintiff’s motion should be denied for 16 unexplained delay and prejudice to the current Defendants under Rules 15 and 21. (Id. at 17 7.) Judge Dembin found that Plaintiff offered no explanation for why he dismissed Dr. 18 Chau at the outset of discovery, and that he did not explain why he did not know or should 19 not have known of the facts forming the basis for rejoining Dr. Chau sooner. (Id. at 7–8.) 20 More importantly, Judge Dembin found that leave to amend should be denied because it 21 would substantially prejudice the current Defendants and Dr. Chau. (Id. at 8.) Given that 22 discovery had almost closed, Dr. Chau would have no meaningful chance to conduct 23 discovery. (Id.) And the other Defendants would be prejudiced by having to wait for 24 continued discovery and its ensuing delay on their resolution of the case. (Id.) Thus, Judge 25 Dembin recommends that Plaintiff’s motion be denied for the unexplained delay and 26 prejudice to the current Defendants and Dr. Chau. (Id.) 27 /// 28 /// 4 14-CV-1412 JLS (MDD) 1 II. Summary of Petitioner’s Objections 2 Plaintiff objects to a Judge Dembin’s R&R on a few grounds. First, he argues that 3 good cause exists to amend his complaint because he only realized his mistake in dropping 4 Dr. Chau after he received answers from certain Defendants. (R&R Obj. 2–3, ECF No. 5 130.) Second, allowing Dr. Chau to serve as an expert against Plaintiff in this case instead 6 of a Defendant would constitute perjury. (Id. at 3.) Third, Plaintiff objects to Judge 7 Dembin’s interpretation and application of several cases to his present case. (Id. at 3–5.) 8 Fourth and finally, Plaintiff argues that the Court should have liberally construed his 9 motion to rejoin Dr. Chau as also including a motion to modify the scheduling order. (Id. 10 at 8.) 11 III. 12 13 Court’s Analysis The Court will review, de novo, each part of the R&R to which Petitioner has objected. 14 A. Objection One—Good Cause to Amend 15 Plaintiff argues that there is good cause to amend his FAC. Specifically, Plaintiff 16 realized that he had misidentified Defendants Dr. Chau’s and Dr. Cook’s role in his case, 17 since Dr. Cook only documented Plaintiff’s injury after Dr. Chau had initiated the 18 diagnosis. (Id. at 2.) Plaintiff claims that he only realized their proper roles after he received 19 certain Defendants’ answers to his Complaint. (Id. at 2–3.) 20 However, the Court agrees with Judge Dembin that Plaintiff had already set forth 21 similar—and other—allegations against Dr. Chau in his FAC and in his original complaint. 22 (See, e.g., FAC 15–17, ECF No. 18; see also ECF No. 1, at 35–38 (collecting allegations 23 against Dr. Chau in his original complaint).) So Plaintiff already suspected that Dr. Chau 24 played a role in his case, despite Plaintiff’s claim that it was only after receiving certain 25 answers that he allegedly confirmed Dr. Chau’s precise role in the matter. The Court agrees 26 with Judge Dembin that these similarities weigh against a finding of diligence on Plaintiff’s 27 part, and thus the Court concludes that Plaintiff has not shown diligence or a reasonable 28 excuse for the delay. 5 14-CV-1412 JLS (MDD) 1 Additionally, despite Plaintiff’s allegations against Dr. Chau in his original 2 complaint and his FAC, on May 2, 2016 he voluntarily asked the Court to dismiss Dr. Chau 3 from the case. (ECF No. 65.) He gave no reason why, a fact that he admits. (R&R Obj. 2, 4 ECF No. 130 (“[Plaintiff] admittedly did not provide reasons for a ruling to dismiss Dr. Jo 5 Chau as a party.”).) The Court granted his request on May 18, 2016. (ECF No. 68.) In view 6 of this, the Court agrees with Judge Dembin that rejoining Dr. Chau would result in 7 substantial prejudice to all of the Defendants. As to Dr. Chau, discovery is over and any 8 expedited discovery schedule as to him would prejudice his due process rights. 9 Additionally, the remaining Defendants would be prejudiced by having to wait for the close 10 of discovery against Dr. Chau, regardless of the duration of that process. Thus, the Court 11 finds that rejoining Dr. Chau would unduly prejudice the current Defendants and Dr. Chau. 12 Accordingly, the Court OVERRULES Plaintiff’s first objection. 13 B. Objection Two—Dr. Chau as an Expert Witness 14 Plaintiff also argues that Dr. Chau must be rejoined because to allow him to serve as 15 Defendants’ expert witness against him would amount to perjury. (R&R Obj. 3, ECF No. 16 130.) However, Plaintiff does not explain how this supports his argument that the Court 17 should allow Plaintiff to amend his FAC to include Dr. Chau. And to the extent Plaintiff is 18 concerned that Dr. Chau will commit perjury at trial, Plaintiff is free to object to his 19 testimony or otherwise challenge his findings. Accordingly, the Court OVERRULES 20 Plaintiff’s second objection. 21 C. Objection Three—Case Law Citations 22 Plaintiff argues that two cases cited by Judge Dembin in support of his R&R are 23 inapplicable to Plaintiff’s case. First, Plaintiff distinguishes Kaplan v. Rose, 49 F.3d 1363 24 (9th Cir. 1994), on the grounds that in Kaplan the plaintiff attempted to amend his 25 complaint after discovery was completed and trial was only two months away. (R&R Obj. 26 4, ECF No. 130.) But Judge Dembin did not cite Kaplan to compare the stage in litigation. 27 Rather, Judge Dembin cited Kaplan because the Ninth Circuit affirmed a denial of 28 amendment where the movant knew or should have known when drafting the complaint 6 14-CV-1412 JLS (MDD) 1 about the facts on which he would base his amendment. (See R&R 8, ECF No. 123 (citing 2 Kaplan, 49 F.3d at 1370).) While the facts of Kaplan in this regard are different, the Court 3 finds that Judge Dembin did not commit error in relying on Kaplan for this proposition, 4 and indeed properly extended it to Plaintiff’s case based on the allegations against Dr. Chau 5 in Plaintiff’s original complaint and FAC. 6 Second, Plaintiff argues that Judge Dembin erroneously relied on Eminence Capital, 7 LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003), because, in that case, the Ninth 8 Circuit found the district court abused its discretion when denying plaintiff leave to amend 9 his complaint. (R&R Obj. 6–7, ECF No. 130.) However, Judge Dembin merely relied on 10 this case for the legal proposition that “prejudice is the ‘touchstone of the inquiry rule under 11 rule 15(a),’” (R&R 8, ECF No. 123 (citing Eminence Capital, 316 F.3d at 1052)), not for 12 support from the case’s underlying facts. 13 In addition, while Plaintiff correctly notes that in Eminence Capital the Ninth Circuit 14 stated that a denial of leave to amend without any explanation is subject to reversal, 316 15 F.3d at 1052, here Judge Dembin has given Plaintiff several reasons why he recommends 16 denying Plaintiff leave to amend. (See generally R&R, ECF No. 123.) Indeed, while 17 Plaintiff argues that Judge Dembin inappropriately found that Dr. Chau would suffer 18 prejudice because he has had no meaningful opportunity to conduct discovery, when 19 Plaintiff argues he previously propounded some discovery, (R&R Obj. 7–8, ECF No. 130), 20 that does not mean that Judge Dembin’s finding was erroneous. Specifically, Judge 21 Dembin did not state that Dr. Chau had no opportunity for discovery; rather, he stated that 22 whatever discovery Dr. Chau previously propounded was not “meaningful.” (R&R 8, ECF 23 No. 123.) In any case, the Court finds that rejoining Dr. Chau would substantially prejudice 24 him and the remaining Defendants, as discussed above. (See also id. at 8–9.) Accordingly, 25 the Court OVERRULES Plaintiff’s third objection. 26 /// 27 /// 28 /// 7 14-CV-1412 JLS (MDD) 1 D. Objection Four—The Court Should Have Liberally Construed Plaintiff’s 2 Motion 3 Finally, Plaintiff objects to Judge Dembin’s order because he argues Judge Dembin 4 should have additionally construed his motion to rejoin party as a motion to modify the 5 scheduling order. (R&R Obj. 8–9, ECF No. 130.) Plaintiff admits that he did not title his 6 motion as one to modify the scheduling order, but he argues that Judge Dembin should 7 have liberally construed his pleading given that Plaintiff is proceeding pro se. (Id.) Plaintiff 8 is correct that the Court must liberally construe the filings and motions of a pro se inmate 9 in a civil suit. See, e.g., Thomas v. Ponder, 611 F.3d 1144, 150 (9th Cir. 2010). However, 10 Plaintiff does not identify a statement in his motion to rejoin party that Judge Dembin 11 should have also construed as a motion to modify the scheduling order. Nor can the Court 12 discern any. Without more, the Court declines to find that Judge Dembin should have more 13 liberally construed Plaintiff’s motion to include additional relief. Accordingly, the Court 14 OVERRULES Plaintiff’s fourth objection. 15 CONCLUSION 16 For the foregoing reasons, the Court (1) OVERRULES Plaintiff’s Objections, (2) 17 ADOPTS the R&R in its entirety, and (3) DENIES Plaintiff’s motion to rejoin party (ECF 18 No. 95). 19 20 IT IS SO ORDERED. Dated: February 24, 2017 21 22 23 24 25 26 27 28 8 14-CV-1412 JLS (MDD)

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