Welch v. United States of America
Opinion and Order The Court determines that there is not good cause for amendment of the complaint and DENIES Plaintiff's motion for leave to file a fourth amended complaint (ECF No. 28 ). Judge J. Philip Calabrese on 1/6/2021. (Y,A)
Case: 1:20-cv-00065-JPC Doc #: 31 Filed: 01/06/21 1 of 3. PageID #: 241
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
JANICE WELCH, individually and
as Administratrix of the Estate of
John A. Martello, Deceased,
UNITED STATES OF AMERICA,
Case No. 1:20-cv-00065
Judge J. Philip Calabrese
William H. Baughman, Jr.
OPINION AND ORDER
In this case in which Plaintiff alleges the United States has liability for the
death of John Martello due to his care and treatment at the Louis Stokes VA Medical
Center, Plaintiff seeks leave to file a fourth amended complaint. (ECF No. 28.)
Previously, the Court set April 30, 2019 as the deadline for amendment of the
As grounds for her motion, Plaintiff states that the operative complaint does
not allege violation of the standard of care—omission of the cause of death, a ruptured
abdominal aneurism, from the problem list in the health record of John Martello.
Plaintiff does not point to good cause for amendment beyond the cut-off date to amend
the pleadings, saying instead that in re-reviewing the voluminous medical records
counsel recently identified a document he contends constitutes definitive proof that
Defendant breached this standard of care.
Accordingly, Plaintiff seeks leave to
amend to add allegations based on that specific medical record.
Case: 1:20-cv-00065-JPC Doc #: 31 Filed: 01/06/21 2 of 3. PageID #: 242
Defendant opposes the motion. Among other things, the United States points
out that the medical records on which Plaintiff bases her motion have been available
since before the filing of the lawsuit. Further, Defendant raises concern about the
impending discovery cut-off of February 1, 2021—a deadline extended from an earlier
Although Rule 15 directs courts to give leave to amend freely, Fed. R. Civ. P.
(15)(a)(2), amendment after the deadline in a scheduling order requires good cause,
Fed. R. Civ. P. 16(b); Garza v. Lansing Sch. Dist., 972 F.3d 853, 879 (6th Cir. 2020).
Primarily, good cause measures the moving party’s diligence in attempting to meet
the schedule. Garza, 972 F.3d at 879. Here, where the parties do not dispute that
the records prompting the motion have long been available, the record comes up
lacking on this score. Nor does Plaintiff offer other good cause for amendment at this
Additionally, courts consider possible prejudice to the party opposing
amendment. Id. The Court finds that after approximately eight months of discovery
and on the threshold of the extended discovery cut-off date, further protracting these
proceedings on the basis of information available long ago prejudices the
United States. To be sure, the prejudice to which Defendant points does not, perhaps,
amount to the most consequential unfairness in litigation. But the “longer the delay,
the less prejudice the opposing party will be required to show.” Id. at 880 (quoting
DuBuc v. Green Oak Township, 312 F.3d 736, 752 (6th Cir. 2002)). Here, the Court
finds that the prejudice from the potential for ongoing discovery and its concomitant
Case: 1:20-cv-00065-JPC Doc #: 31 Filed: 01/06/21 3 of 3. PageID #: 243
burdens on the parties, the need to respond to a new pleading, and further delay in
the resolution of this dispute constitutes sufficient prejudice on the facts and
circumstances presented to deny the motion. In this regard, the Court also notes that
Plaintiff has already amended three times. This is not a case where there has not
been an opportunity to cure any deficiencies in the pleadings.
At some point,
however, the schedule must hold and the pleadings are closed. This case passed that
point some time ago.
For the foregoing reasons, the Court determines that there is not good cause
for amendment of the complaint and DENIES Plaintiff’s motion for leave to file a
fourth amended complaint (ECF No. 28).
Dated: January 6, 2021
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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