v. Dartmouth Hitchcock Medical Center et al

Filing 97

ORDER denying 88 Motion for Leave to File amended answer. So Ordered by Judge Joseph A. DiClerico, Jr. (dae)

Dartmouth Hitchcock Medical Center v. Cross Country Trav Corp. Inc., et al.

Doc. 97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dartmouth Hitchcock Medical Center v. Civil No. 09-cv-160-JD Opinion No. 2011 DNH 048

Cross Country Travcorps, Inc., d/b/a Cross Country Staffing and CHG Medical Staffing, Inc., d/b/a RN Network O R D E R Dartmouth Hitchcock Medical Center ("DHMC") brought an action against Cross Country Travcorps, Inc., doing business as Cross Country Staffing, and their affiliates (referred to collectively as "Cross Country"), and CHG Medical Staffing, Inc., doing business as RN Network ("CHG"). DHMC's claims arise out of

a medical negligence action, Aumand v. Dartmouth Hitchcock Medical Center, No. 06-cv-434-JL. In this case, DHMC seeks

indemnification from Cross Country and contribution from Cross Country and CHG for the damages paid by DHMC in the Aumand case.1 CHG now moves to amend its answer to add a counterclaim for contribution, and DHMC objects.

1

Other claims have been referred to arbitration.

Dockets.Justia.com

Background Cross Country provided a nurse, Ruth Burdett, to DHMC under a staffing agreement with DHMC and a subcontractor agreement with CHG. Nurse Burdett was involved in the care of a patient at Deborah Aumand, as the

DHMC, Katherine Coffey, who died.

executor of the estate of her mother, Katherine Coffey, and Francis Coffey, Deborah's father and Katherine's husband, brought a medical malpractice against DHMC, alleging that Katherine Coffey died as a result of treatment she received at DHMC in 2005. After a verdict was returned in favor of the plaintiffs, DHMC and CHG paid the damages awarded. CHG paid $500,000. DHMC paid $483,000, and

DHMC brought suit against Cross Country and

CHG, seeking indemnification and contribution for the damages it paid and alleging breach of contract against CHG. After its

motion to dismiss was denied, CHG filed its answer on August 14, 2009. Under the scheduling order in this case, the defendants' deadline for amending their pleadings was May 1, 2010. amended, discovery will close on May 2, 2011. for the period beginning on May 17, 2011. As

Trial is scheduled

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Discussion On February 23, 2011, CHG moved to amend its answer to add a counterclaim against DHMC for contribution, pursuant to RSA 507:7-f.2 In its proposed counterclaim, CHG denies all liability

based on Nurse Burdett's actions and asserts that a jury must determine what part, if any, of the negligence that caused Mrs. Coffey's death is attributable to Nurse Burdett. CHG seeks

contribution from DHMC toward the $500,000 CHG paid to satisfy the judgment in the Aumand case. DHMC contends that CHG's counterclaim should not be allowed because it was filed long after the deadline for amending pleadings that was established by the scheduling order, it was filed too close to the start of trial, and it was filed beyond the one-year limitation period provided in RSA 507:7-g,III.3 DHMC also challenges the counterclaim on the merits. In

response, CHG argues that its amendment should be allowed under

Although CHG characterizes its counterclaim as seeking contribution and indemnification, the counterclaim is titled "CONTRIBUTION;" cites to the contribution statute, RSA 507:7-f; and does not mention indemnification. Therefore, the counterclaim is construed to seek contribution, not indemnification. DHMC initially cited RSA 507:7-h but later discussed RSA 507:7-g, which is the pertinent statute. 3
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Federal Rule of Civil Procedure 15(a)(2) and contends that the counterclaim is not futile.

A.

Deadline for Amending Pleadings As is noted above, the deadline imposed by the scheduling

order in this case for filing an amended answer was May 1, 2010. CHG relies on the "liberal" policy for amendments in Federal Rule of Civil Procedure 15(a). However, when a party seeks to amend

late in the case and after the applicable deadlines, Federal Rule of Civil Procedure 16(b) applies. Trans-Spec Truck Serv., Inc.

v. Caterpillar Inc., 524 F.3d 315, 327 (1st Cir. 2008); Steir v. Girl Scouts of USA, 383 F.3d 7, 12 (1st Cir. 2004). Deadlines in

a scheduling order may be extended only if the moving party makes a sufficient showing of good cause. Fed. R. Civ. P. 16(b)(4);

Trans-Spec, 524 F.3d at 327; In re Franklin, 2011 WL 917744, at *9-*10 (Bkrtcy. D. Mass. March 15, 2011); Forrester Envtl. Servs. v. Wheelabrator Techs., Inc., 2011 WL 839694, at *1 (D.N.H. March 7, 2011); U.S. Bank Nat'l Assoc. v. James, 2010 WL 1416126, at *2 (D. Me. Apr. 5, 2010). CHG asserts that the delay in presenting its counterclaim will not prejudice DHMC or cause undue delay and that it seeks leave to amend in good faith. CHG also asserts that contribution

may be a compulsory counterclaim so that it would be precluded 4

from seeking recovery outside of this case.

CHG, however, did

not address the good cause requirement imposed by Rule 16(b)(4).4 See Forrester, 2011 WL 839694, at *1 ("The main focus of the `good cause' inquiry is `the diligence of the party seeking the amendment.'" quoting O'Connell v. Hyatt Hotels, 357 F.3d 152, 155 (1st Cir. 2004)). Judgment was entered in the Aumand case in May of 2009. CHG

and DHMC paid their respective portions of the damages sometime before June 11, 2009, when plaintiffs' counsel in Aumand signed a stipulation that the judgment had been satisfied. No apparent

circumstances explain CHG's delay in seeking contribution from DHMC. Therefore, CHG failed to satisfy the requirement for

extending the deadline, and its motion must be denied.

B.

RSA 507:7-g,III If more were needed, DHMC also asserts the limitation

provided in RSA 507:7-g,III:

"If a judgment has been rendered,

the action for contribution must be commenced within one year after judgment becomes final." In its reply, CHG asserts that

the court should apply the Federal Rules of Civil Procedure to

Instead, CHG relies on former Federal Rule of Civil Procedure 13(f) and argues that its standard should be incorporated into the Rule 15(a)(2) analysis. 5

4

allow amendment despite the limitation provision in RSA 507:7g,III. CHG argues that the limitation provision in RSA 507:7-

g,III conflicts with Rule 15, and that under the reasoning in Morel v. DaimlerChrysler AG, 565 F.3d 20, 24 (1st Cir. 2009), liberal amendment policy in Rule 15(a) and the relation-back provision in Rule 15(c) should apply. In this case, it is unnecessary to go through the Morel analysis to determine whether the limitations period in RSA 507:7-g,III is subject to Rule 15. As is discussed above, Rule

16(b) governs consideration of a motion for leave to amend a pleading filed after the deadline imposed in the scheduling order. Therefore, CHG's argument is unavailing.

Conclusion For the foregoing reasons, CHG's motion to amend its answer (document no. 88) is denied. SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge March 23, 2011 cc: Andrew D. Dunn, Esquire Ronald J. Lajoie, Esquire Anil Madan, Esquire Joseph Gardner Mattson, Esquire Ralph Suozzo, Esquire 6