The Estate of Ruben Nunez et al v. County of et al

Filing 123

ORDER: (1) Granting Plaintiffs' 78 Motion for Reconsideration; (2) Granting Plaintiffs' Leave to Amend the First Amended Complaint; and (3) Denying Defendants' 41 Motion to Dismiss. The Court grants Plaintiffs leave to file a Second Amended Complaint within seven (7) days of the date of this Order. Signed by Judge Roger T. Benitez on 6/10/2017.(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE ESTATE OF RUBEN NUNEZ, et
al.,
Plaintiffs,

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v.
COUNTY OF SAN DIEGO, et al.,

ORDER:
1) GRANTING PLAINTIFFS'
MOTION FOR
RECONSIDERATION;

Defendants.

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Case No.: 3:16-cv-1412-BEN-MDD

COUNTY OF SAN DIEGO, et al.,
Cross Claimants,

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v.

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2) GRANTING PLAINTIFFS' LEAVE
TO AMEND THE FIRST AMENDED
COMPLAINT;

3) DENYING DEFENDANTS'
MOTION TO DISMISS

CORRECTIONAL PHYSICIANS
MEDIAL GROUP, INC., et al.,

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Cross Defendants.

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Before the Court are the Motion to Dismiss the First Amended Complaint (Docket

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No. 41) filed by Defendants State of California, Patton State Hospital, Harry Oreol,

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Kayla Fisher, Marcy Moon, Theresa Baroi and Wilda D. Ramos (collectively "State

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Defendants"), and the Motion for Reconsideration of the Ex Parte Motion to Amend the

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First Amended Complaint (Docket No. 78) filed by Plaintiffs. The motions are fully
3:16-cv-1412-BEN-MDD

1 briefed. The Court finds the motions suitable for determination on the papers without
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oral argument, pursuant to Civil Local Rule 7.1.d.l. For the reasons set forth below, the

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State Defendants' Motion to Dismiss is DENIED, Plaintiffs' Motion for Reconsideration

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is GRANTED.
BACKGROUND 1

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This case arises out of the death of pre-trial detainee Ruben Nunez ("Ruben") on

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August 13, 2015 at the San Diego Central Jail ("Central Jail"), which is operated and

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managed by Defendant County of San Diego ("County"). At the time of his death,

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Ruben was forty-six years old and had suffered from schizophrenia his entire adult life.

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In 2014, Ruben was off of his medication, became homeless, and was arrested for

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allegedly throwing a rock through a car window. A San Diego Superior Court judge

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found Ruben incompetent to stand trial, committed him to Defendant Patton State

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Hospital ("PSH"), 2 and ordered he be involuntarily medicated.

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At PSH, Ruben was diagnosed with psychogenic water intoxication, also known as

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psychogenic polydipsia. People who suffer from this condition drink water

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uncontrollably, which can result in their death. It is estimated that up to 20% of people

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with schizophrenia also suffer from psychogenic polydipsia.

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When patients are transferred from PSH to other facilities, a discharge form, which

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lists the patient's diagnoses, medical risks, and any special needs, is required to be sent to

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the other facilities. The discharge form is faxed to the facility before the patient's arrival,

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and a second copy is included with the documents that travel with the patient. There is an

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additional form that "lays out a strict protocol for monitoring water intake and blood

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levels" for psychiatric patients who have a problem with water intoxication. (Docket No.

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15, First Amended Complaint~ 34.)

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following overview of the facts are drawn from the allegations of Plaintiffs' First
Amended Complaint. (Docket No. 15.) The Court is not making findings of fact.
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PSH is one of Defendant State of California's inpatient psychiatric hospitals.
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On August 8, 2015, Ruben was transferred from PSH to the Central Jail to attend a

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competency hearing. Defendants Theresa Baroi ("Baroi"), Wilma D. Ramos ("Ramos"),

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and Doe 41 3 generated and checked Ruben's discharge document, and it was sent to the

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Central Jail. The discharge document referenced "water intoxication= weight

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adjustment." (Id.

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intake and blood levels was not generated for Ruben. "Ruben's [Central Jail] medical

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records showed he had 'a history of ... hypoatremia' - 'which required water

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restriction."'

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water.

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(Id.~

33.) The additional form with instructions for monitoring water

36.) Central Jail staff did not limit or restrict Ruben's access to

On August 13, 2015, a deputy saw Ruben vomiting in his cell and called a nurse.

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Defendant Doe 1 arrived at the unit and gave Ruben his medication. Doe 1 did not alert

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medical staff and left Ruben in his cell. Approximately one hour later, a deputy found

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Ruben on the floor of his cell. He was not breathing. Ruben's death was determined to

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be caused by cerebral edema due to excess consumption of water.

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Ruben was found with his clothing soiled with vomit and urine. A Medical

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Examiner's Office investigator noted that Ruben's cell "smelled of urine and vomit." (Id.

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bunk; bloody vomit was splattered on the wall. The Medical Examiner also found vomit

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in Ruben's nasal cavity, and dried vomit on both of his hands. Plaintiffs further allege

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that the "medical and jail staff left Ruben in an unsanitary condition in his own vomit and

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urine."

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40.) Vomit was also observed in the sink, on a table, the floor, and the cell's lower

PROCEDURAL HISTORY

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On June 8, 2016, Plaintiffs filed a Complaint against Defendants County of San

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Diego, William Gore, Bruce Leicht ("Leicht"), Alfred Joshua ("Joshua"), Harry Oreo!

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("Oreo!"), Kayla Fisher ("Fisher"), Marcy Moon ("Moon"), and Does 1-50. (Docket No.

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At all relevant times to the Complaint, Baroi, Ramos, and Doe 41 were PSH nurses.
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1.) Defendant County filed its Answer on July 5, 2016. (Docket No. 7.) On August 29,

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2016, this Court granted the joint motion to amend complaint filed by Plaintiffs and

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Defendant County. (Docket Nos. 10, 14.)

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On August 30, 2016, Plaintiffs filed the operative First Amended Complaint

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("FAC"), which added Defendants State of California, Patton State Hospital, Theresa

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Baroi, and Wilda D. Ramos. (Docket No. 15.) On September 19, 2016, Defendant

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CountyfileditsAnswer. (DocketNo.19.) On0ctober31,2016,DefendantsJoshua,

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Gore, and Leicht filed a joint Answer (Docket No. 28. ), and a Motion for Leave to File a

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Third-Party Complaint (Docket No. 29), which the Court granted. (Docket No. 40.)

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On December 6, 2016, Defendants State of California, Patton State Hospital,

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Oreo!, Fisher, Moon, 4 Baroi, and Ramos filed the instant Motion to Dismiss the F AC.

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(Docket No. 41.) On December 12, 2016, Defendants/Third-Party Plaintiffs County,

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Joshua, Gore, and Leicht (collectively, "County Defendants") filed their Third-Party

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Complaint against Third-Party Defendants Correctional Physicians Medical Group, Inc.

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("CPMG"), Jorge Naranjo ("Naranjo"), Sara Hansen ("Hansen"), and Roes 1-10.

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(Docket No. 43.) CPMG filed its Answer to the Third-Party Complaint on January 5,

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2017. (Docket No. 48.)

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On February 14, 2017, Plaintiffs filed an Ex Parte Motion to Amend the FAC

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(Docket No. 58, "Ex Parte Motion"), which the Court denied on February 28, 2017.

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(Docket No. 72.) Plaintiffs timely moved for reconsideration. (Docket No. 78.)

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DISCUSSION

A.

Plaintiffs' Motion for Reconsideration of Ex Parte Motion to Amend

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The Court previously denied Plaintiffs' Ex Parte Motion for two reasons: 1)

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contrary to Plaintiffs' assertion otherwise, a majority of the Defendants filed oppositions

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to the Ex Parte Motion indicating they did not consent to amendment of the FAC; and

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4 The

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Court granted the parties' joint motion to dismiss Defendant Moon on June 13,
2017. (Docket No. 118.)
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2) Plaintiffs failed to explain why justice required the Court to grant them leave. (Docket

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No. 72.)

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Plaintiffs' Motion for Reconsideration argues that the Court should grant them

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leave to file a Second Amended Complaint because: 1) Defendants reneged on their

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agreement to permit Plaintiffs to amend the FAC, and 2) they are "entitled" to amend the

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FAC. (See Docket No. 78, "Recon. Mot.") The State Defendants and Third-Party

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Defendant CPMG each filed oppositions arguing they had only agreed to an extension of

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time for Plaintiffs to file a motion to amend the FAC and that Plaintiffs have not shown

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new or different facts to warrant reconsideration. (Docket Nos. 81-82.) Although the

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County Defendants did not oppose Plaintiffs' Ex Parte Motion, they filed an opposition

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to the reconsideration motion claiming it asserts "numerous and critical factual

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inaccuracies" regarding Plaintiffs' investigative diligence. (Docket No. 83 at 1.)

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In this District, an application for reconsideration of a judge's prior order should

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identify "what new or different facts or circumstances are claimed to exist which did not

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exist, or were not shown, upon such prior application." CivLR 7 .1.i. Plaintiffs represent

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that the State Defendants and CPMG improperly opposed their motion to amend after

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Plaintiffs obtained their written consent to amend the FAC. Plaintiffs further contend that

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due to the State Defendants' and CPMG's multiple requests for continuances of other

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case-related deadlines, their prior arguments regarding the alleged prejudice they would

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suffer if Plaintiffs were granted leave to amend no longer hold water. The State

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Defendants and CPMG maintain that they never provided Plaintiffs with written consent

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to amend the FAC, that they will suffer prejudice if Plaintiffs are granted leave, and that

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Plaintiffs have not satisfied Civil Local Rule 7.1.i. While the Court is not convinced by

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any of the parties' positions, it finds Plaintiffs complied with Civil Local Rule 7.1.i.

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Plaintiffs rely on the "Joint Motion to Continue Scheduling Order to Amend the

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Complaint [Docket 47]" ("Joint Motion," Docket No. 52) as evidence of the State

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Defendants' and CPMG's written agreement to allow them to amend the FAC. The Joint

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Motion states that the named parties stipulate, agree and jointly apply to the Court for "a
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continuance of the date set out in the Scheduling Order Regulating Discovery and other

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Pre-Trial Proceedings [Docket No. 47] (Amended Scheduling Order) with respect to the

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deadline to join other parties, amend the pleadings, or file additional pleadings currency

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[sic] set for January 27, 2017." 5 (Docket No. 52 at 2) (emphasis added.) However, the

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Amended Scheduling Order (Docket No. 47) does not provide a deadline to file amended

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pleadings. Rather, it clearly states: "Any motion to join other parties, to amend the

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pleadings, or to file additional pleadings shall be filed by January 27, 2017." (Docket

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No. 47 at 1) (emphasis added.) Thus, Plaintiffs cannot rely on the Joint Motion as

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incontrovertible evidence of the State Defendants' and CPMG's written consent.

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Moreover, the Joint Motion supports State Defendants' and CPMG's representation that

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they only consented to an extension of time in which Plaintiffs could file a motion to

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amend their complaint. As a result, Plaintiffs have failed to demonstrate they obtained all

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of the opposing parties' written consent to amend their complaint, and the Court is not

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required to grant them leave to amend. Fed. R. Civ. P. 15(a)(2).

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With respect to Plaintiffs argument that post-Ex Parte Motion events indicate the

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prejudice claimed by the State Defendants and CPMG "dissipated or changed over seven

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days" or did not exist at the time they filed their Ex Parte Motion oppositions, this

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argument misses the mark. The Court denied Plaintiffs' Ex Parte Motion for the dual

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reasons that they did not obtain written consent and did not include any briefing

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whatsoever as to why the Court should grant them leave to amend. 6 Nevertheless, the

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Court finds Plaintiffs satisfied Civil Local Rule 7.1.i. because their Motion for

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Reconsideration includes what their Ex Parte Motion to Amend lacked: an independent

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Similarly, Plaintiffs' Motion for Reconsideration states that "the parties filed a Joint
Motion for continuance of the date set in the Scheduling Order with respect to the
deadline to amend the pleadings." (Docket No. 78 at 3.)
6 Understandably, Plaintiffs may not have realized an independent basis was necessary
due to their apparent mistaken belief that the State Defendants and CPMG consented to
amendment of the PAC.
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explanation of why the Court should grant them leave to amend. See CivLR 7. l .i (an

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application for reconsideration should include "what new or different facts and

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circumstances are claimed to exist which did not exist, or were not shown, upon such

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prior application") (emphasis added). Additionally, the Civil Local Rules are subordinate

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to the Federal Rules of Civil Procedure, 7 which directs courts to construe, administer, and

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employ the procedural rules "to secure the just, speedy, and inexpensive determination of

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every action and proceeding." Fed. R. Civ. P. 1; see also CivLR 1.1.c (same).

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Therefore, Plaintiffs' Motion for Reconsideration is GRANTED.

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B.

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Plaintiffs' Motion for Leave to Amend

Before trial, and after the time has elapsed for which a party may amend its

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pleading as a matter of course, Rule 15(a)(2) of the Federal Rules of Civil Procedure

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provides that: "a party may amend its pleading only with the opposing party's written

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consent or the court's leave." Fed. R. Civ. P. 15(a). Leave to amend under Rule 15(a)(2)

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should be "freely give[n] ... when justice so requires." Fed. R. Civ. P. 15(a)(2). The

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Ninth Circuit "has noted on several occasions ... that the Supreme Court has instructed

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the lower federal courts to heed carefully the command of Rule 15(a), ... by freely

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granting leave to amend when justice so requires." DCD Programs, Ltd. v. Leighton, 833

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F.2d 183, 186 (9th Cir. 1987). "This policy is 'to be applied with extreme liberality.'"

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Eminence Capital, LLC v. Aspeon, Inc., 316 F .3d 1048, 1051 (9th Cir. 2003) (quoting

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Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)).

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As discussed above, the Court finds Plaintiffs have not demonstrated they obtained

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written consent from all opposing parties. Therefore, the Court must determine whether

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justice requires granting Plaintiffs leave to amend. Fed. R. Civ. P. 15(a). Courts consider

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"undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous

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amendments, undue prejudice to the opposing party, and futility of the proposed

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See CivLR 1.1.c. {"These rules supplement the Federal Rules of Civil Procedure[.]").
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1 amendment" in deciding whether justice requires granting leave to amend under Rule 15.

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Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing

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Foman v. Davis, 370 U.S. 178, 182 (1962)). Although each factor may warrant

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consideration, "prejudice to the opposing party ... carries the greatest weight."

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Eminence Capital, 316 F.3d at 1052.

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Although the Court disagrees that Plaintiffs are "entitled" to amend their pleading

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(Recon. Mot. at 14.), it finds that none of the Defendants' various claims of undue delay,

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bad faith, prejudice or futility weigh against granting leave. Specifically, the Court notes

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the record supports Plaintiffs' assertion that they were diligent in attempting to ascertain

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all potential defendants based on available discovery. The State Defendants' and County

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Defendants' argument that Plaintiffs' possessed information regarding the additional

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claims and defendants in the proposed Second Amended Complaint is speculative at best.

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With respect to CPMG's claim that it would suffer undue prejudice of having to defend

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42 U.S.C. § 1983, wrongful death, and medical negligence claims, this claim is

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outweighed by the prejudice to Plaintiffs if they are not permitted to assert claims against

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potentially responsible parties, particularly in light of the Court's directive to liberally

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grant leave to amend in the interests of justice.

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Accordingly, the Court grants Plaintiffs' request for leave to amend the FAC.

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Plaintiffs may file a Second Amended Complaint within seven (7) days of the date of this

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Order. 8

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B.

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State Defendants' Motion to Dismiss FAC

Because the Court grants Plaintiffs leave to amend the FAC, the State Defendants'
Motion to Dismiss is DENIED as moot.

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The Court notes Plaintiffs did not comply with CivLR 15.1.b when they filed their Ex
Parte Motion to Amend. (Docket No. 58.) The Court reminds all parties that they are
expected to comply with both the Federal Rules of Civil Procedure and the Civil Local
Rules.
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CONCLUSION

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For the reasons set forth above, Plaintiffs' Motion for Reconsideration is

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GRANTED and the State Defendants' Motion to Dismiss is DENIED as moot. The

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Court grants Plaintiffs leave to file a Second Amended Complaint ("SAC") within seven

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(7) days of the date of this Order.

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IT IS SO ORDERED.

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:

DATED:

Ju~, 2017
nited States District Judge

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