Antonetti v. Neven et al

Filing 63

ORDER Denying 53 Motion for Judgment, Denying 54 Motion to Amend/Correct Complaint, and Granting 58 Motion to Extend Time. Signed by Judge Kent J. Dawson on 4/16/12. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH ANTONETTI,

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Plaintiff,

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v.

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DWIGHT NEVEN, et al.,

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Case No. 2:08-CV-01020-KJD-VCF

Defendants.

ORDER

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Presently before the Court is Plaintiff’s Motion for Final Disposition (#53). Defendants filed

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a response in opposition (#55) to which Plaintiff replied (#60). Also before the Court is Plaintiff’s

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Motion to Amend (#54). Defendants filed a response in opposition (#56) to which Plaintiff replied

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(#60). Finally before the Court is Defendants’ Motion to Extend Time (#58) to file dispositive

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motions. Though the time for doing so has passed, no response in opposition has been received.

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Therefore, good cause being found, and in accordance with Local Rule 7-2(d), the motion to extend

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is granted.

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I. Motion for Final Disposition

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Essentially, Plaintiff seeks to have the Court enter judgment on his claims which have been

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dismissed so that he may file an interlocutory appeal on those claims while his meritorious dental

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claim proceeds. Rule 54(b) authorizes a court to direct the entry of final judgment as to one or more,

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but fewer than all, of the claims or parties if multiple claims and parties are involved. However, the

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Court must find that there is no just reason for delay and must make an express direction for the entry

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of judgment. See Fed. R. Civ. P. 54(b). In making a Rule 54(b) determination, the court must

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consider the historic, federal policy against piecemeal appeals. See Curtiss-Wright Corp. v. Gen.

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Elec. Co., 446 U.S. 1, 8 (1980). “Judgments under Rule 54(b) must be reserved for the unusual case

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in which the costs and risks of multiplying the number of proceedings and of overcrowding the

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appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment

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as to some claims or parties.” Morrison-Knudsen Co. v. J.D. Archer, 655 F.2d 962, 965 (9th Cir.

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1981). “A similarity of legal or factual issues will weigh heavily against entry of judgment under the

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rule, and in such cases a Rule 54(b) order will be proper only where necessary to avoid a harsh and

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unjust result, documented by further and specific findings.” See id.

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Having read and considered the motion, the Court finds that entry of a Rule 54(b) order is

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unnecessary, because no harsh or unjust result will occur if the Court delays entry of a final judgment

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until all claims have been resolved. Resolution of all of Plaintiff’s claims on appeal at the same

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time, rather than in a piecemeal fashion, will avoid the risk of multiplying the number of proceedings

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on the appellate docket. Therefore, Plaintiff’s motion for final disposition is denied.

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II. Motion to Amend

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Defendants oppose the motion to amend asserting that Plaintiff has not shown good cause for

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failing to file the motion to amend before the date set in the scheduling order had expired. Plaintiff

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asserts that he only discovered the additional parties in recently received discovery and could not

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have moved to amend earlier. Furthermore, Plaintiff asserts that his pending motion for final

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disposition tolled the time to move to amend the complaint.

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Under Federal Rule of Civil Procedure Rule 15(a), a party may amend the party’s pleadings

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once as a matter of course at any time before a responsive pleading is served. Otherwise, a party may

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amend only by leave of court or by written consent of the adverse party, and leave shall be freely

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given when justice so requires. FED. R. CIV. P. 15(a). Although Rule 15(a) is very liberal, courts
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may deny a proposed amendment which “(1) prejudices the opposing party; (2) is sought in bad faith;

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(3) produces an undue delay in the litigation; or (4) is futile.” AmerisourceBergen Corp. V. Dialysis

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West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)(quoting FED. R. CIV. P. 15(a)).

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However, Federal Rule of Civil Procedure 16(b) requires that the schedule for amending

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pleadings not be modified without a showing of good cause for failure to amend within the time

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specified in the scheduling order. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.

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2000). This standard “primarily considers the diligence of the party seeking the amendment.” See

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Johnson v. Mammoth Recreations, Inc. 975 F.2d 604, 608 (9th Cir. 1992). Here, Plaintiff has failed

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to demonstrate that he was prevented from discovering the claims against the proposed additional

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parties until he received Defendants’ discovery on December 9, 2011, six days before the deadline

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expired.

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Plaintiff has not specified what specific facts were unknown to him before that date. He

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makes a blanket statement that “[p]reviously withheld discovery prevented Mr. Antonetti from

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knowing duties and various identities of various defendants which (some) Mr. Antonetti now

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includes.” Plaintiff’s complaint makes no specific factual assertions against the proposed new

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defendants other than he believes that at some point all Defendants processed or denied his

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grievances without granting him relief. There is no explanation in his motion or response why he

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could not identify these specific defendants without discovery, considering the extensive briefing

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regarding his exhaustion of administrative remedies. Furthermore, he appears to assert improper

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vicarious liability claims against proposed new defendants, such as Governor Brian Sandoval. There

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is absolutely no factual assertion of Governor Sandoval’s personal involvement in the alleged

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constitutional violations.

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Therefore, the Court denies Plaintiff’s motion to amend, because he did not show good cause

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for failing to meet the deadline to amend the complaint set in the scheduling order. Furthermore, the

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proposed amended complaint does not specify facts that show personal involvement by the proposed

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new defendants. Finally, the pending motion for final disposition was not filed until after the
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deadline to amend the complaint had expired, and even if it had been filed before the deadline, it

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would not toll Plaintiff’s duty to timely file a motion to amend.

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III. Conclusion

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Final Disposition (#53)
is DENIED;

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend (#54) is DENIED;

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IT IS FINALLY ORDERED that Defendants’ Motion to Extend Time (#58) is GRANTED.

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DATED this 16th day of April 2012.

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_____________________________
Kent J. Dawson
United States District Judge

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