Aus et al v. Salt Lake County et al
MEMORANDUM DECISION and denying 21 Motion to Amend/Correct. Signed by Magistrate Judge Brooke C. Wells on 2/1/17. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
JASON AUS, JANIS AUS, and the ESTATE
OF JEREMY AUS,,
MEMORANDUM DECISION AND ORDER
DENYING MOTION TO AMEND
Case No. 2:16-cv-266 JP
District Judge Jill Parrish
NEWELL K. WHITNESALT LAKE
COUNTY, JAMES WINDER, and John and
Jane Does 1-10,Y, et al.,
Magistrate Judge Brooke Wells
Plaintiffs seek to file an amended complaint. 1 Plaintiffs are the heirs of the deceased
Jeremy Aus, who filed a complaint with one claim for relief for failure to provide adequate
medical care under 42 U.S.C. Section 1983 (1983 claim). Plaintiffs seek to add the County
Defendants’ contracted medical provider Wellcon, Inc. (Wellcon) as an additional defendant for
the 1983 claim and seek to add an additional state law claim of medical malpractice against
Wellcon only. As set forth below the court denies the motion.
Jeremy Aus was booked into the Salt Lake County Jail on approximately November 6,
2013. 2 Mr. Aus had been on a daily Clonzepam prescription for over ten years for anxiety. 3
Clonazepam is a benzodiazepine. The Salt Lake County Jail “does not usually dispense
benzodiazepines” and declined to continue providing Jeremy Cloanzepam. 4 Plaintiffs allege this
Docket no. 21.
Complaint ¶14, docket no. 2.
abrupt detoxification created withdrawal symptoms and led to Jeremy’s eventual death on
November 16, 2014. 5 Plaintiffs filed this suit bringing a 1983 claim for failure to provide
adequate medical care in violation of Mr. Aus’ 8th and 14th Constitutional Amendment rights.
Federal Rule 15(a)(2) provides that “[t]he court should freely give leave when justice so
requires.” 6 “The district court has ‘wide discretion to recognize a motion for leave to amend in
the interest of a just, fair or early resolution of litigation.’” 7 “Refusing leave to amend is
generally only justified upon a showing of undue delay, undue prejudice to the opposing party,
bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or
futility of amendment.” 8 “Although Fed.R.Civ.P. 15(a) provides that leave to amend shall be
given freely, the district court may deny leave to amend where amendment would be futile. A
proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” 9
The Tenth Circuit has held that that it would futile to allow a party to amend its complaint when
the claim sought to be added would be barred by the statute of limitation. 10
Plaintiffs move the court to add the County Defendants’ contracted medical provider
Wellcon as an additional defendant for the 1983 claim and seek to add an additional state law
claim of medical malpractice against Wellcon only. If the court permits the state medical
malpractice claim against Wellcon Plaintiffs must first satisfy the pre-litigation procedures of the
Fed. R. Civ. P. 15(a)(2).
Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quoting Calderon v. Kan. Dep't of Soc. & Rehab. Servs.,
181 F.3d 1180, 1187 (10th Cir. 1999)).
Id. (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)).
Jefferson County Sch. Dist. v. Moody’s Investor’s Services, 175 F.3d 848, 859 (10th Cir. 1999).
See e.g., Bradly v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004).
Utah Medical Malpractice Act. 11 Plaintiffs are still in the process of satisfying the pre-litigation
procedures and are awaiting the required hearing. Defendants do not object to Wellcon being
added to the 1983 claim, but do object about the addition of the medical malpractice state law
claim. So the narrow issue before the court is whether or not to allow the state medical
The statute of limitations provision of the Utah Health Care Malpractice Act, requires
that “[a] malpractice action against a health care provider shall be commenced within two years
after the plaintiff or patient discovers, or through the use of reasonable diligence should have
discovered the injury, whichever first occurs, but not exceed four years after the date of the
alleged act, omission or neglect, or occurrence.” 12 Mr. Aus died on November 16, 2013 and
Plaintiffs filed this suit on April 4 2016, more than three years after Mr. Aus died. Defendants
argue this is a full year after the two year statute of limitations ran. Thus, the medical
malpractice claim is time barred unless an exception applies. In response, Plaintiffs argue that
they filed suit within the maximum four year limitations date and it was not until April 15, 2014,
when a medical expert mentioned the possible issues with Defendants failure to provide the
proscribed Clonazepam, that Plaintiffs should have discovered the injury.
The court is persuaded by Plaintiffs arguments. The Medical Malpractice Act statute of
limitations “beings to run when an injured person knows or should know that he has suffered
legal injury.” 13 Here, the court finds it reasonable that Plaintiffs would have not known about
the possible complications with Clonazepam not being provided until a medical expert
See Utah Code Ann. § 78B-3-401, et seq.
Utah Code Ann. § 78B-3-404(1).
Foil v. Ballinger, 601 P.2d 144, 147 (Utah Sup.Ct. 1979)
investigated the issue. The court therefore finds Plaintiffs filed within the applicable statute of
Having found that Plaintiffs filing is within the statute of limitations the court turns to
other considerations. Much discovery has already taken place in this action. Fact discovery is
set to close on February 14, 2017 with expert reports due the next month in March. 15 Defendants
argue that it is “unfair and prejudicial to the County Defendants for Plaintiffs to derail the current
litigation by adding a new state law claim of medical malpractice that is not even ripe to be
pleaded given the pre-litigation requirements of the Utah Health Care Malpractice Act.” 16 In
response Plaintiffs argue Defendants have not met their burden to show prejudice and a “brief
delay . . . is not a basis for denying the motion to amend.” 17 But it is not as simple as Plaintiffs
It is uncertain exactly how long the pre-litigation procedures will take. And even more
concerning, it is unknown whether Plaintiffs will even be successful in the pre-litigation phase
persuading the review board that they may bring an action. By allowing the state medical
malpractices claim these uncertainties would be introduced into this case creating prejudice for
Defendants. Such prejudice is magnified by the stage of the proceedings in this case. In short,
based on the specific facts in this case, the court finds undue prejudice to Defendants and thus it
is proper to deny the motion.
Given this finding the court does not consider the fraudulent concealment exception.
See Amended Scheduling Order p. 2-3, docket no. 20.
Op. p. 8, docket no. 22.
Reply p. 6.
For these reasons the court DENIES Plaintiff’s Motion for Leave to Amend.
IT IS SO ORDERED.
DATED this 1 February 2017.
Brooke C. Wells
United States Magistrate Judge
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