United States District Court, D. Alaska
RITA MARIE SALLISON, individually and as Personal Representative for the Estate of Kyilea Renee Swazer, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.
MOTION TO AMEND
H.
Russel Holland, United States District Judge.
Plaintiff
moves amend her complaint and to modify the scheduling and
planning order to allow such an amendment.[1] This motion is
opposed.[2] Oral argument was not requested and is not
deemed necessary.
Background
In this
Federal Tort Claims Act case, plaintiff Rita Marie Sallison
(“Sallison”), individually and as personal
representative for the estate of Kyilea Renee Swazer, seeks
to amend her complaint to add Kenneth Swazer
(“Swazer”) as a plaintiff.
On
April 11, 2014, Sallison was pregnant and went to the Alaska
Native Medical Center (ANMC) when her labor
began.[3] Sallison had “a previous cesarian
section and was at increased risk of uterine
rupture.”[4] Sallison alleges that the providers at
ANMC delayed performing a C-section and that by the time they
did so, “her uterus had ruptured and the baby's
head was outside of the uterus.”[5] The baby, Kyilea
Renee Swazer, was delivered but “survived only a few
days. . . .”[6] Although not alleged in her complaint,
Sallison contends that the C-section was done on April 13,
2014 and that Kyilea died on April 21, 2014. Swazer was
Kyilea's father.
On
April 4, 2016, Sallison and Swazer filed an administrative
claim that they both signed.[7] On the same day, Sallison filed a
separate administrative claim that only she
signed.[8] Both administrative claims contain the
same allegations and state that Swazer was Kyilea's
father.[9] Both administrative claims were denied on
February 9, 2017.[10]
On
March 10, 2017, Sallison commenced the instant action.
Sallison's complaint does not name Swazer as a plaintiff
but she does allege that both she and Kyilea's estate
“experienced pain and suffering and emotional distress,
as did Ms. Swazer's father.”[11]
Plaintiff
now moves to modify the scheduling and planning order so that
she may file a motion to amend her complaint. Plaintiff seeks
to amend her complaint to add Swazer as a
plaintiff.[12]
Discussion
The
Scheduling and Planning Order in this case set a September
29, 2017 deadline for motions to amend pleadings or add
parties.[13] A “party seeking to amend [a]
pleading after [the] date specified in [a] scheduling order
must first show ‘good cause' for amendment under
Rule 16(b)[.]” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 608 (9th Cir. 1992). “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.'” Id. at 609
(quoting Fed.R.Civ.P. 16 advisory committee's notes (1983
amendment)). “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.” Id. “If that party was
not diligent, the inquiry should end.” Id.
Plaintiff
does not argue that she has been diligent in seeking to
modify the scheduling and planning order, presumably because
she was plainly aware that Swazer had claims against
defendant long before she filed the instant motion, as
evidenced by the administrative claim she and Swazer signed
on April 4, 2016. Plaintiff offers no explanation as to why
Swazer was not included as a plaintiff when the complaint in
this matter was first filed or why she could not have moved
to amend her complaint to add him before the expiration of
the deadline in the scheduling order. Instead, plaintiff
argues that she has shown good cause because defendant was
aware of Swazer's claims and because there will be no
delay or inconvenience caused by allowing her to modify the
scheduling and planning order. Plaintiff cites a number of
district court cases in support of her “good
cause” argument.
First,
plaintiff cites to Padilla v. Bechtel Construction
Co., No. CV-06-286-PHX-LOA, 2007 WL 625927 (D. Ariz.
Feb. 27, 2007). There, Padilla filed a motion to amend his
complaint after the deadline set for such amendments in the
scheduling and planning order had expired; and the court
found good cause to modify the scheduling and planning order
because Padilla had “been diligent in seeking
amendment. . . .” Id. at *7. The court also
noted, that unlike the situation in Johnson,
Padilla's “failure to timely request a scheduling
order amendment” had not “resulted from his own
inaction.” Id. The court did not find good
cause for any of the reasons plaintiff advances here.
Moreover, plaintiff's failure to timely request that the
scheduling and planning order be modified is the result of
her own inaction.
Plaintiff
next cites to Mytee Products, Inc. v. H.D. Products,
Inc., No. 05-CV-2286 W(CAB), 2007 WL 4105713 (S.D. Cal.
Nov. 16, 2007). There, the plaintiff moved to amend the
scheduling and planning order to add an additional plaintiff
and to drop a cause of action. Id. at *2. The court
noted that “good cause can be found where the
non-moving party is already on notice of the moving
party's reasons for modifying the scheduling
order.” Id. Plaintiff argues here that
defendant has been on notice that Swazer had claims against
it and thus she argues that she has shown good cause. But,
plaintiff ignores the fact that the court in Mytee
Products found that the plaintiff had shown good cause
to modify the scheduling order because it had been diligent
in moving to do so. Id. at *3. The Mytee
Products court did not dispense with the diligence
requirement as plaintiff appears to want the court to do
here.
Plaintiff
next cites to Sousa ex rel. Will of Sousa v. Unilab Corp.
Class II (Non-Exempt) Members Group Benefit Plan, 252
F.Supp.2d 1046 (E.D. Cal. 2002). There, on motion for summary
judgment, defendants argued that the plaintiffs' ERISA
claims were barred by the statute of limitations.
Id. at 1054. The plaintiffs argued that the
defendants waived their right to raise a statute of
limitations defense because it was not an issue listed in the
parties' scheduling order. Id. at 1057. The
court determined that it could “easily” modify
the scheduling order and that there was good cause to do so
because the “[p]laintiffs have always been on notice
about [the d]efendants' statute of limitations
defense[.]” Id. at 1059. The court did not
mention diligence. But in light of the Ninth Circuit
authority that requires the court to consider the moving
party's ...