Davison v. Georgia Correctional Health, LLC et al

Filing 99

ORDER granting 73 Motion for Leave to File Amended Complaint. As amendment necessarily impacts certain deadlines (both pending and expired) set forth in the Scheduling Order, the parties are ORDERED to meet and confer and within 14 days of this Order submit a proposed joint Amended Scheduling Order. Signed by Magistrate Judge G. R. Smith on 8/29/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CINDY DAVISON, as Administrator
of the Estate of Randall Davison,
Plaintiff,
v.
STEPHEN NICOLOU, CALVIN
BALL, STACY THRIFT,
Defendants.

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CV616-039

ORDER
In this 42 U.S.C. § 1983 case arising from Randall Davison’s death
from an untreated bacterial infection while in custody of Georgia State
Prison, plaintiff Cindy Davison, in her executory capacity, moves the
Court for leave to amend the scheduling order and file an amended
complaint adding Calvin Ball and Stacy Thrift as defendants and
“conforming the allegations to the evidence produced in discovery.”
Doc. 73. Defendant opposes the request as untimely and futile. Docs.
85 & 87. According to defendant, plaintiff has had all the information
she needed to name these defendants since December 2016, when she
received his discovery responses naming Ball and Thrift. Moreover, she
has known about their roles in Randall’s demise -- “which do not

amount to deliberate indifference” -- since their depositions in February
and April, two months before filing this motion.

Doc. 87 at 3-4.

Plaintiff responds that “the full facts underlying Ball and Thrift’s
liability did not begin to come to light until at least Thrift’s deposition”
in April 2017, and that she timely moved for amendment once she
believed she had reason to do so. Doc. 91 at 6.
Motions to amend are governed by Federal Rule of Civil of
Procedure 15, and courts generally freely grant leave when necessary.
However, the Court has discretion to deny leave when appropriate. See

Fla. Evergreen Foliage v. E.I. DuPont De Nemours and Co., 470 F.3d
1036, 1041 (11th Cir. 2006).

And when a motion to amend is filed

outside the deadline set by the Court’s scheduling order, the moving
party must demonstrate good cause to amend the scheduling order.
Fed. R. Civ. P. 16. “The good cause standard precludes modification
unless the schedule cannot be met despite the diligence of the party
seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418
(11th Cir. 1998).
To determine good cause this Court “looks to whether the evidence
supporting the proposed amendment would not have been discovered in
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the exercise of reasonable diligence until after the amendment deadline
had passed.” Stonecrest Partners, LLC v. Bank of Hampton Roads, 770
F. Supp. 2d 778, 784 (E.D.N.C. 2011); see also Romero v. Drummond

Co., 552 F.3d 1303, 1319 (11th Cir. 2008) (“To establish good cause, the
party seeking the extension must have been diligent.”).
Here, the Court ordered the parties to make all amendments to
pleadings no later than September 11, 2016 (doc. 42), and plaintiff filed
her request nine months later.

Doc. 73 (filed June 20, 2017).

She

explains that she could not have amended her Complaint earlier,
because she did not discover Ball’s and Thrift’s roles until Thrift’s April
2017 deposition. Doc. 91 at 6. And defendant concedes that plaintiff
would have learned about facts warranting amendment, at the earliest,
only after the deadline to amend had already expired. See doc. 87 at 3-4
(arguing plaintiff would have known about Ball and Thrift through his
December 2016 discovery responses -- produced two months after the
deadline passed). This is enough to show that despite her diligence,
plaintiff could not have moved to amend before the deadline had passed.
Since plaintiff meets the good cause standard under Rule 16(b),
the Court next examines whether “the substance of the amendment
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meets the requirements of Rule 15(a)(2).”

Peeples v. Custom Pine

Straw, Inc. 2015 WL 8675136 at *2 (S.D. Ga. Dec. 11, 2015). The thrust
of Rule 15(a) is to allow parties to have their claims heard on the
merits, and accordingly, district courts should liberally grant leave to
amend when “the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief.” Foman v. Davis, 371 U.S.
178, 182 (1962).

Nevertheless, a motion for leave to amend may

appropriately be denied “(1) where there has been undue delay, bad
faith, dilatory motive, or repeated failure to cure deficiencies by
amendments previously allowed; (2) where allowing amendment would
cause undue prejudice to the opposing party; or (3) where amendment
would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001).
Because of the brevity of defendant’s opposition (docs. 85 & 87
together devote approximately two pages to opposing the motion), the
Court is unable to determine precisely why he believes amendment
should be denied. He states that Ball and Thrift were not deliberately
indifferent to Randall’s serious medical needs (doc. 87 at 4), such that
amendment would be futile, but does not offer any argument or even a
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single citation to any record to demonstrate it. See docs. 85 & 87. He
contends that both Ball and Thrift would be prejudiced by being added
to the Complaint so late in the game (doc. 87 at 4), but does not dispute
that both were represented at their depositions by defense counsel
(attorneys from the Georgia Department of Law), who would continue
their defense if added to the Complaint.
As to the timeliness of the request, the Court cannot conclude that
plaintiff failed to diligently run down the evidence needed to determine
whether naming another defendant was necessary or whether further
factual allegations were appropriate to buttress the Complaint as they
were discovered.

Indeed, aside from setting forth the chronology of

events (the deadlines in the Scheduling order and the dates of his
discovery responses and their depositions), defendant does not argue
that plaintiff was anything less than diligent.

See docs. 85 & 87.

Plaintiff’s motion is, in substance, unopposed.
Plaintiffs’ motion to file an Amended Complaint is therefore
GRANTED. As amendment necessarily impacts certain deadlines (both
pending and expired) set forth in the Scheduling Order, the parties are
ORDERED to meet and confer and within 14 days of this Order submit
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a proposed joint Amended Scheduling Order.
SO ORDERED, this 29th

day of August, 2017.

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