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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THOMAS JOHN HEILMAN,
CDCR #H-76785,

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ORDER (1) OVERRULING
PLAINTIFF’S OBJECTIONS; AND
(2) ADOPTING REPORT AND
RECOMMENDATION

Plaintiff,

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Case No.: 14-CV-1412 JLS (MDD)

v.
J. COOK, et al.,
Defendants.

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(ECF Nos. 95, 123, 130)

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Presently before the Court are: (1) Magistrate Judge Mitchell D. Dembin’s Report

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and Recommendation (“R&R”) advising that the Court deny Plaintiff’s motion to rejoin

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party (“R&R,” ECF No. 123); and (2) Plaintiff Thomas John Heilman’s Objections to the

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R&R (“R&R Obj.”, ECF No. 130). Having considered the facts and the law, the Court (1)

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OVERRULES Plaintiff’s Objections, (2) ADOPTS the R&R in its entirety, and (3)

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DENIES Plaintiff’s motion to rejoin party (ECF No. 95).

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BACKGROUND

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Judge Dembin’s R&R contains a thorough and accurate recitation of the factual and

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procedural histories underlying Plaintiff’s motion to rejoin party. (See R&R 2–4,1 ECF No.

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123.) This Order incorporates by reference the background as set forth therein.

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Pin citations refer to the CM/ECF page numbers electronically stamped at the top of each page.
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LEGAL STANDARDS
I.

Review of Report and Recommendation

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties regarding a magistrate judge’s report and recommendation. The district court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United

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States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely objection,

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however, “the Court need only satisfy itself that there is no clear error on the face of the

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record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s

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note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)).

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II.

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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.

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Once the deadline for joining parties and amending pleadings set in the Rule 16(b)

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Scheduling Order has passed, no addition of parties or amendment of pleadings is permitted

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unless the movant shows good cause for modifying the Scheduling Order. Fed. R. Civ. P.

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16(b)(4); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)

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(holding that district court did not abuse discretion in denying leave to amend where

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plaintiff failed to show good cause for amending the scheduling order).

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Rule 15(a)(2) states “[t]he court should freely give leave [to amend] when justice so

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requires.” This Rule should be applied with “extreme liberality.” Sonoma Cty. Ass’n of

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Retired Emp. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (citing Owens v. Kaiser

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Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)). Nevertheless, courts may

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decline to grant leave to amend if there is “strong evidence” of “undue delay, bad faith or

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dilatory motive on the part of the movant, repeated failure to cure deficiencies by
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amendments previously allowed, undue prejudice to the opposing party by virtue of

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allowance of the amendment, [or] futility of amendment, etc.” Id. (quotation omitted).

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“[T]he consideration of prejudice to the opposing party carries the greatest weight.” (Id.)

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Amendments seeking to add parties are granted less freely than amendments seeking to

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add claims. Union Pac. R.R. Co. v. Nev. Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991);

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see Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 F.3d 1054, 1069 (6th Cir.

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1995) (denying amendment to add party over one year after complaint filed denied as too

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prejudicial to new party).

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Rule 21 concerning “Misjoinder and Nonjoinder of Parties,” states that “[m]isjoinder

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of parties is not a ground for dismissing an action. On motion or on its own, the court may

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at any time, on just terms, add or drop a party. The court may also sever any claim against

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a party.” Here, Plaintiff’s request is more appropriately considered under Rules 15 and 16

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than Rule 21. Nevertheless, the same test applies to Plaintiff’s request under either Rule.

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“The liberal standard of Rule 15 also applies to Rule 21 motions.” De Malherbe v. Int’l

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Union of Elevator Constructors, 438 F. Supp. 1121, 1128 (N.D. Cal. 1977) (citing Fair

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Housing Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y. 1972)). The test of

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whether additions or subtractions of parties should be allowed under Rule 21, like the test

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under Rule 15, is whether such action will prejudice the non-moving party, and whether it

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will serve to avoid multiplicity of suits. Helene Curtis Indus. v. Sales Affiliates, 105 F.

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Supp. 886, 900 (S.D.N.Y. 1952), affirmed 199 F.2d 732 (2d Cir. 1952). “[P]rejudice to the

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non-moving party will defeat a Rule 21 motion.” Sable Commc’ns of Cal. Inc. v. Pac. Tel.

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& Tel. Co., 890 F.2d 184, 191 n.13 (9th Cir. 1989) (citing Helene Curtis Indus., supra).

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ANALYSIS
I.

Summary of the R&R Conclusion

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Judge Dembin concluded that Plaintiff failed to meet his burdens under Rules 15,

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16(b)(4), and 21 to show re-joinder of Dr. Chau should be granted. (R&R 6, ECF No. 123.)

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As to Rule 16(b)(4), Judge Dembin concluded that Plaintiff did not claim or attempt

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to show diligence or a reasonable excuse for the delay. (Id. at 7.) Specifically, Judge
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Dembin noted that Plaintiff did not move the Court to modify its Scheduling Order, made

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no effort to show good cause for modifying the Scheduling Order, and did not explain why

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he could not meet the scheduling deadline or how he was diligent in attempting to comply

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with the deadline set for joining parties. (Id. at 6.) Judge Dembin further noted that Plaintiff

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offered no explanation for why he dismissed Dr. Chau at the outset of discovery only to

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attempt to rejoin him just as the discovery phase was set to expire. (Id. at 6–7.) For example,

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Plaintiff pointed to no new information learned through discovery as the impetus to rejoin

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Dr. Chau, and Judge Dembin noted that Plaintiff’s description of Dr. Chau’s role in the

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initial complaint mirrored Plaintiff’s allegations about Dr. Chau in his motion to rejoin.

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(Id. at 7 (compare ECF No. 95, at 4, with ECF No. 1, at 35–38 (both alleging that Dr. Chau

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falsified medical records to conceal fellow CDCR personnel’s conduct and was

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deliberately indifferent to Plaintiff’s injuries and the risks of infection))). Thus, Judge

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Dembin concluded that Plaintiff has not shown diligence in seeking to rejoin Dr. Chau

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under Rule 16 and recommends that Plaintiff’s motion be denied on this basis.

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Judge Dembin similarly concluded that Plaintiff’s motion should be denied for

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unexplained delay and prejudice to the current Defendants under Rules 15 and 21. (Id. at

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7.) Judge Dembin found that Plaintiff offered no explanation for why he dismissed Dr.

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Chau at the outset of discovery, and that he did not explain why he did not know or should

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not have known of the facts forming the basis for rejoining Dr. Chau sooner. (Id. at 7–8.)

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More importantly, Judge Dembin found that leave to amend should be denied because it

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would substantially prejudice the current Defendants and Dr. Chau. (Id. at 8.) Given that

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discovery had almost closed, Dr. Chau would have no meaningful chance to conduct

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discovery. (Id.) And the other Defendants would be prejudiced by having to wait for

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continued discovery and its ensuing delay on their resolution of the case. (Id.) Thus, Judge

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Dembin recommends that Plaintiff’s motion be denied for the unexplained delay and

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prejudice to the current Defendants and Dr. Chau. (Id.)

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II.

Summary of Petitioner’s Objections

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Plaintiff objects to a Judge Dembin’s R&R on a few grounds. First, he argues that

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good cause exists to amend his complaint because he only realized his mistake in dropping

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Dr. Chau after he received answers from certain Defendants. (R&R Obj. 2–3, ECF No.

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130.) Second, allowing Dr. Chau to serve as an expert against Plaintiff in this case instead

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of a Defendant would constitute perjury. (Id. at 3.) Third, Plaintiff objects to Judge

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Dembin’s interpretation and application of several cases to his present case. (Id. at 3–5.)

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Fourth and finally, Plaintiff argues that the Court should have liberally construed his

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motion to rejoin Dr. Chau as also including a motion to modify the scheduling order. (Id.

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at 8.)

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III.

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Court’s Analysis
The Court will review, de novo, each part of the R&R to which Petitioner has

objected.

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A. Objection One—Good Cause to Amend

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Plaintiff argues that there is good cause to amend his FAC. Specifically, Plaintiff

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realized that he had misidentified Defendants Dr. Chau’s and Dr. Cook’s role in his case,

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since Dr. Cook only documented Plaintiff’s injury after Dr. Chau had initiated the

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diagnosis. (Id. at 2.) Plaintiff claims that he only realized their proper roles after he received

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certain Defendants’ answers to his Complaint. (Id. at 2–3.)

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However, the Court agrees with Judge Dembin that Plaintiff had already set forth

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similar—and other—allegations against Dr. Chau in his FAC and in his original complaint.

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(See, e.g., FAC 15–17, ECF No. 18; see also ECF No. 1, at 35–38 (collecting allegations

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against Dr. Chau in his original complaint).) So Plaintiff already suspected that Dr. Chau

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played a role in his case, despite Plaintiff’s claim that it was only after receiving certain

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answers that he allegedly confirmed Dr. Chau’s precise role in the matter. The Court agrees

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with Judge Dembin that these similarities weigh against a finding of diligence on Plaintiff’s

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part, and thus the Court concludes that Plaintiff has not shown diligence or a reasonable

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excuse for the delay.
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Additionally, despite Plaintiff’s allegations against Dr. Chau in his original

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complaint and his FAC, on May 2, 2016 he voluntarily asked the Court to dismiss Dr. Chau

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from the case. (ECF No. 65.) He gave no reason why, a fact that he admits. (R&R Obj. 2,

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ECF No. 130 (“[Plaintiff] admittedly did not provide reasons for a ruling to dismiss Dr. Jo

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Chau as a party.”).) The Court granted his request on May 18, 2016. (ECF No. 68.) In view

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of this, the Court agrees with Judge Dembin that rejoining Dr. Chau would result in

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substantial prejudice to all of the Defendants. As to Dr. Chau, discovery is over and any

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expedited discovery schedule as to him would prejudice his due process rights.

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Additionally, the remaining Defendants would be prejudiced by having to wait for the close

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of discovery against Dr. Chau, regardless of the duration of that process. Thus, the Court

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finds that rejoining Dr. Chau would unduly prejudice the current Defendants and Dr. Chau.

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Accordingly, the Court OVERRULES Plaintiff’s first objection.

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B. Objection Two—Dr. Chau as an Expert Witness

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Plaintiff also argues that Dr. Chau must be rejoined because to allow him to serve as

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Defendants’ expert witness against him would amount to perjury. (R&R Obj. 3, ECF No.

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130.) However, Plaintiff does not explain how this supports his argument that the Court

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should allow Plaintiff to amend his FAC to include Dr. Chau. And to the extent Plaintiff is

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concerned that Dr. Chau will commit perjury at trial, Plaintiff is free to object to his

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testimony or otherwise challenge his findings. Accordingly, the Court OVERRULES

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Plaintiff’s second objection.

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C. Objection Three—Case Law Citations

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Plaintiff argues that two cases cited by Judge Dembin in support of his R&R are

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inapplicable to Plaintiff’s case. First, Plaintiff distinguishes Kaplan v. Rose, 49 F.3d 1363

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(9th Cir. 1994), on the grounds that in Kaplan the plaintiff attempted to amend his

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complaint after discovery was completed and trial was only two months away. (R&R Obj.

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4, ECF No. 130.) But Judge Dembin did not cite Kaplan to compare the stage in litigation.

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Rather, Judge Dembin cited Kaplan because the Ninth Circuit affirmed a denial of

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amendment where the movant knew or should have known when drafting the complaint
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about the facts on which he would base his amendment. (See R&R 8, ECF No. 123 (citing

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Kaplan, 49 F.3d at 1370).) While the facts of Kaplan in this regard are different, the Court

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finds that Judge Dembin did not commit error in relying on Kaplan for this proposition,

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and indeed properly extended it to Plaintiff’s case based on the allegations against Dr. Chau

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in Plaintiff’s original complaint and FAC.

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Second, Plaintiff argues that Judge Dembin erroneously relied on Eminence Capital,

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LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003), because, in that case, the Ninth

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Circuit found the district court abused its discretion when denying plaintiff leave to amend

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his complaint. (R&R Obj. 6–7, ECF No. 130.) However, Judge Dembin merely relied on

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this case for the legal proposition that “prejudice is the ‘touchstone of the inquiry rule under

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rule 15(a),’” (R&R 8, ECF No. 123 (citing Eminence Capital, 316 F.3d at 1052)), not for

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support from the case’s underlying facts.

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In addition, while Plaintiff correctly notes that in Eminence Capital the Ninth Circuit

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stated that a denial of leave to amend without any explanation is subject to reversal, 316

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F.3d at 1052, here Judge Dembin has given Plaintiff several reasons why he recommends

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denying Plaintiff leave to amend. (See generally R&R, ECF No. 123.) Indeed, while

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Plaintiff argues that Judge Dembin inappropriately found that Dr. Chau would suffer

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prejudice because he has had no meaningful opportunity to conduct discovery, when

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Plaintiff argues he previously propounded some discovery, (R&R Obj. 7–8, ECF No. 130),

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that does not mean that Judge Dembin’s finding was erroneous. Specifically, Judge

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Dembin did not state that Dr. Chau had no opportunity for discovery; rather, he stated that

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whatever discovery Dr. Chau previously propounded was not “meaningful.” (R&R 8, ECF

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No. 123.) In any case, the Court finds that rejoining Dr. Chau would substantially prejudice

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him and the remaining Defendants, as discussed above. (See also id. at 8–9.) Accordingly,

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the Court OVERRULES Plaintiff’s third objection.

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D. Objection Four—The Court Should Have Liberally Construed Plaintiff’s

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Motion

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Finally, Plaintiff objects to Judge Dembin’s order because he argues Judge Dembin

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should have additionally construed his motion to rejoin party as a motion to modify the

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scheduling order. (R&R Obj. 8–9, ECF No. 130.) Plaintiff admits that he did not title his

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motion as one to modify the scheduling order, but he argues that Judge Dembin should

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have liberally construed his pleading given that Plaintiff is proceeding pro se. (Id.) Plaintiff

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is correct that the Court must liberally construe the filings and motions of a pro se inmate

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in a civil suit. See, e.g., Thomas v. Ponder, 611 F.3d 1144, 150 (9th Cir. 2010). However,

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Plaintiff does not identify a statement in his motion to rejoin party that Judge Dembin

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should have also construed as a motion to modify the scheduling order. Nor can the Court

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discern any. Without more, the Court declines to find that Judge Dembin should have more

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liberally construed Plaintiff’s motion to include additional relief. Accordingly, the Court

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OVERRULES Plaintiff’s fourth objection.

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CONCLUSION

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For the foregoing reasons, the Court (1) OVERRULES Plaintiff’s Objections, (2)

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ADOPTS the R&R in its entirety, and (3) DENIES Plaintiff’s motion to rejoin party (ECF

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No. 95).

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IT IS SO ORDERED.
Dated: February 24, 2017

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