Tomashek v. Raleigh County Emergency Operating Center et al

Filing 50

MEMORANDUM OPINION AND ORDER denying plaintiff's 45 MOTION to Amend Complaint, Join Defendants, and Modify the Scheduling Order. Signed by Judge Joseph R. Goodwin on 12/19/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
PHILIP J. TOMASHEK, II
v.

CIVIL ACTION NO. 2:17-cv-01904

RALEIGH COUNTY EMERGENCY
OPERATING CENTER, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court is Plaintiff’s Motion to Amend Complaint, Join
Defendants, and Modify the Scheduling Order [ECF No. 45]. The defendants filed a
response [ECF No. 47], and the plaintiff filed a reply [ECF No. 48]. For the following
reasons, the plaintiff’s Motion is DENIED.
On March 16, 2017, this case was removed to federal court. Notice of Removal
[ECF No. 1]. On November 17, 2017, the plaintiff filed this motion to amend the
complaint, join additional defendants, and amend the scheduling order. Pl.’s Mot. Am.
Compl., Join Defs., & Modify Sched. Order [ECF No. 45]. The plaintiff’s proposed
second amended complaint in this action would add additional counts against
existing defendants as well as new counts against new defendants. Id. at 1–3. The
Scheduling Order in this case specifies that (1) the amendment of pleadings and
joinder of parties shall be completed by June 14, 2017, and (2) the amendment of
pleadings and the joinder of any parties shall be governed by Rules 15 and 16 of the
Federal Rules of Civil Procedure. Scheduling Order [ECF No. 18].

In order to amend a complaint or join additional parties after an established
deadline, the moving party must first satisfy the requirements of Federal Rule of
Civil Procedure 16(b)(4). If the moving party satisfies Rule 16, then the court will
analyze whether the amendment or joinder is proper under Rules 15, 19, and 20. Nat’l

Union Fire Ins. Co. of Pittsburgh v. Bowling Green Recycling, LLC, No. 1:15-cv-24GNS, 2017 WL 1380469, at *2 (W.D. Ky. Apr. 13, 2017); Marcum v. Zimmer, 163
F.R.D. 250, 254 (S.D. W. Va. 1995).
On November 17, 2017, the plaintiff filed this motion—22 weeks after the
deadline for the amendment of pleadings and joinder of parties set by the court’s
scheduling order. Scheduling Order 1. Thus, the plaintiff must first satisfy the “good
cause” standard required under Rule 16(b)(4). The Ninth Circuit has explained:
Rule 16(b)’s “good cause” standard primarily considers the
diligence of the party seeking the amendment. The district
court may modify the pretrial schedule if it cannot

reasonably be met despite the diligence of the party
seeking the extension. . . . Moreover, carelessness is not
compatible with a finding of diligence and offers no reason
for a grant of relief. . . . Although the existence or degree of
prejudice to the party opposing the modification might
supply additional reasons to deny a motion, the focus of the
inquiry is upon the moving party's reasons for seeking
modification. . . . If that party was not diligent, the inquiry

should end.

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (emphasis
added) (quotation marks omitted). The Advisory Committee for Rule 16 observed that
the Rule “assures that at some point both the parties and the pleadings will be fixed,
by setting a time within which joinder of parties shall be completed and the pleadings
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amended.” Burton v. United States, 199 F.R.D. 194, 199 n.5 (S.D. W. Va. 2001)
(quoting Advis. Comm. Notes for 1983 Amend.).
The plaintiff has not even attempted to demonstrate that he was diligent, nor
explain why it took him several months past the scheduled deadline to file this
motion. 1 Nevertheless, the court has enough information to determine that the
plaintiff was not diligent in his request. Therefore, regardless of where the parties
are in discovery, the court’s inquiry under Rule 16 must end. Because the court did
not find good cause to satisfy Rule 16, it is unnecessary to conduct any further
analysis under Rules 15, 19, or 20.
For the reasons stated herein, the plaintiff’s Motion is DENIED. The court
DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

December 19, 2017

The court is aware that there is a second, related action pending in state court that includes all of
the counts and defendants the plaintiff wishes to join here. The court sees this second action as
procedural gamesmanship. This action was filed on March 22, 2017. Yet, the plaintiff had until June
14, 2017 to simply amend this action with those new counts and defendants—an act he could have
accomplished without filing that second action. Thus, that second action does not remotely convince
this court that the plaintiff should be allowed to amend this action months after the scheduled deadline
for amendment. This court does not have jurisdiction over that matter, and how it proceeds is of no
consequence here.
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