LeMoon v. California Forensic Medical Group, Inc.

• Court: District Court, N.D. California
• Decided: July 7, 2021
• Docket: 4:20-cv-02552
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 TERESA LEMOON, Case No. 20-cv-02552-PJH 8 Plaintiff,

9 v. ORDER GRANTING MOTION FOR LEAVE TO FILE SECOND AMENDED 10 CALIFORNIA FORENSIC MEDICAL COMPLAINT AND DENYING LETTER GROUP, INC., et al., REQUEST FOR ADDITIONAL 11 DEPOSITIONS Defendants. 12 Re: Dkt. Nos. 63, 80

13 14 Before the court is plaintiff Teresa LeMoon’s (“plaintiff”) motion for leave to file a 15 second amended complaint. Dkt. 62 (original motion); Dkt. 63 (corrected motion). Also 16 before the court is plaintiff’s letter requesting that the court permit her to take a total of 17 17 depositions. Dkt. 67 (original letter); Dkt. 68 (first revised letter); Dkt. 80 (second revised 18 letter). Both the motion for leave and the letter request are suitable for decision without 19 oral argument. Having read the parties’ papers and carefully considered their arguments 20 and the relevant legal authority, the court GRANTS the motion for leave and DENIES the 21 letter request for the following reasons. 22 BACKGROUND 23 On April 13, 2020, plaintiff filed the instant action against the County of Solano (the 24 “County”) and various other persons and entities (collectively, “defendants”). Dkt. 1 25 (Compl.) ¶¶ 5-15. The court will specify the relevant non-County defendants below. 26 In her original complaint, plaintiff alleged that, on March 4, 2019, police arrested 27 her now-deceased son, Jeremiah Conaway (“Conaway”), for a suspected probation 1 Conaway in pretrial detention at one of its jail facilities. Id. ¶¶ 28-48. Conaway had a 2 history of mental illness stemming from depression and methamphetamine abuse. Id. ¶¶ 3 24-27, 45. Plaintiff alleged that the County had constructive notice of such illness based 4 on its prior medical and arrest records acknowledging Conaway as a “mental health 5 patient” and showing his “serious medical and mental health needs.” Id. ¶¶ 26, 29, 45. 6 While detained, Conaway was mute and generally non-communicative. Id. ¶¶ 31, 7 34. He often refused recreation, dinner, and visits. Id. ¶¶ 32-35, 38-43. According to 8 plaintiff, defendants did not “institute suicide precautions” or place Conaway on “suicide 9 watch.” Id. ¶ 36. They also did not provide him medication. Id. ¶¶ 34, 37, 42-44, 46. 10 For part of his detention, defendants kept Conaway in an isolation cell. Id. ¶ 49. On April 11 10, 2019, Conaway committed suicide using bedding materials to hang himself. Id. ¶ 47. 12 As Conaway’s mother, plaintiff brought this action in both her individual capacity 13 and as Conaway’s successor in interest. Id. ¶ 3. At core, plaintiff alleged that defendants 14 acted with deliberate indifference when failing to attend to Conaway’s medical needs, 15 when failing to take suicide precautions, when failing to adopt necessary healthcare 16 policies and procedures, and when failing to train the jail staff attending to Conaway’s 17 healthcare needs. Id. ¶¶ 49-65. Based on those failures, plaintiff alleged nine claims for 18 negligence, wrongful death, and federal civil rights violations. Id. ¶¶ 67-121. 19 On August 6, 2020, plaintiff filed her operative first amended complaint (“FAC”). 20 Dkt. 26 (FAC). In her FAC, plaintiff adds eight other individual defendants. Id. ¶¶ 8, 10, 21 12, 14-16, 18-19. Such defendants include an unidentified Dr. Richard Roe, M.D., who 22 allegedly acted as the head psychiatrist at County jails. Id. ¶ 12. 23 Plaintiff maintains her factual allegations concerning the care provided to 24 Conaway. Compare Compl. ¶¶ 1, 21-49 with FAC ¶¶ 26-42, 65-82. She advances 25 materially similar deliberate indifference theories of liability to those alleged in her original 26 complaint. Compare Compl. ¶¶ 49-65 with FAC ¶¶ 83-98. Plaintiff also maintains the 27 same nine claims. Compare Compl. ¶¶ 67-121 with FAC ¶¶ 124-79. 1 workers and jail personnel noting Conaway’s perceived health and behavior between 2 March 24, 2019 and April 9, 2019. Id. ¶¶ 43-64. Plaintiff also adds allegations detailing 3 jail healthcare standards set by the National Commission on Correctional Healthcare 4 (“NCCHC”). Id. ¶¶ 98-116. Plaintiff suggests that an individual entity defendant 5 contracting with the County to provide mental health services, California Forensic Medical 6 Group, Inc. (“CFMG”), id. ¶ 7, agreed to satisfy those standards, id. ¶¶ 98, 117-23. In the 7 FAC, plaintiff adds another entity defendant, Wellpath, LLC (“Wellpath”). Id. ¶ 8. Plaintiff 8 alleges CFMG later “merged into” Wellpath. Id. ¶ 5. Plaintiff jointly refers to these 9 entities as “CFMG-Wellpath.” Id. ¶¶ 5, 8. However, because both entities are named as 10 separate defendants, the court will refer to each distinct entity. 11 On August 20, 2020, the court held its initial case management conference. Dkt. 12 34. On August 21, 2020, the court issued its case management and pretrial order. Dkt. 13 35. In it, the court set June 28, 2021 as the fact discovery cutoff. Id. The court also set 14 the last day to file a motion to file an amended as: 15 no later than 90 days before fact discovery cutoff date . . . so sufficient time remains to conduct discovery on added claims 16 or parties. Id. 17 The court also noted that: 18 Doe defendants must be identified by this deadline or they will be dismissed. Id. (emphasis in the original). 19 20 Thus, when the court entered its pretrial order, the last day to file a motion for 21 leave to file an amended pleading was March 30, 2021. 22 Between August and November 2020, defendants filed their answers to the FAC. 23 Dkts. 31, 39, 45, 47, 51. To date, all remaining defendants named in the FAC, except 24 nominal defendant William Conaway (Jeremiah’s father), have appeared in this action. 25 On March 24, 2021, plaintiff filed a letter brief requesting in part that the court 26 extend the fact discovery cutoff from June 28, 2021 to July 28, 2021. Dkt. 54 at 1. 27 Plaintiff represented that “[a]ll parties, including all [d]efendants . . . agree to this request.” 1 to complete the deposition . . . before moving to file an amended complaint.” Id. at 2. 2 Defendants did not file any opposition to plaintiff’s request. On March 25, 2021, the court 3 granted plaintiff’s requested extension, id., correspondingly extending the deadline to file 4 a motion for leave to file an amended pleading to April 29, 2021. 5 On April 28, 2021, plaintiff filed a motion for leave to file the subject second 6 amended complaint (“SAC”). Dkt. 61. Plaintiff attached her proposed SAC to that 7 motion. Dkt. 61-1 (SAC). On April 29, 2021, plaintiff filed a corrected motion for leave to 8 file the SAC. Dkt. 63. The corrected motion is the focus of the instant order. 9 In terms of the SAC’s substantive additions, plaintiff slightly elaborates on her prior 10 allegations concerning the lack of medical attention that Conaway received while in 11 County custody prior to his death. SAC ¶¶ 75, 107, 115-16. She adds allegations 12 detailing Conaway’s 2016 through 2018 experience in County jail, id. ¶¶ 22-40, and 13 Conaway’s late-2018 through 2019 experience in residential drug treatment centers, id. 14 ¶¶ 41-42. 15 In terms of the SAC’s party changes, plaintiff names two other individual 16 defendants, Wellpath’s chief executive officer, Kipp Hallman (“Hallman”), id. ¶¶ 5, 14, and 17 Dr. Don Purcell, M.D., (“Purcell”), id. ¶ 11. Plaintiff removes Officer R. Castillo (“Castillo”) 18 as a defendant.1 19 Relatedly, plaintiff includes references to two other entities, Correctional Medical 20 Group Companies, Inc. (“CMGC”) and H.I.G. Capital (“H.I.G”). Id. ¶¶ 46-59, 67-68. 21 Plaintiff does not name either entity as a defendant. Instead, plaintiff alleges that H.I.G is 22 a private equity firm that acquired CFMG in 2013 and, following that acquisition, renamed 23 CFMG to CMGC. Id. ¶¶ 50, 51. Plaintiff alleges that the “separate personalities of H.I.G. 24 and CFMG are blurred,” with H.I.G. effectively controlling CFMG and indemnifying CFMG 25 for CFMG’s “act and conduct.” Id. ¶¶ 53-55. According to plaintiff, H.I.G., CFMG, and 26

27 1 Plaintiff also alleges that, because the court recently entered default against nominal 1 Wellpath “attempt to use the corporate form as a shield against personal liability and 2 accountability for the harm caused to the mentally ill in jails.” Id. ¶ 59. 3 On May 16, 2021, CFMG and Wellpath, along with co-defendants John Maike, 4 MFT, Marni Ballesteros, R.N., Dinesh Nagar, M.D., Raymond Herr, M.D., Tashi Choera, 5 R.N., and Michelle Bowie R.N. (collectively, the “medical defendants”), filed an opposition 6 to plaintiff’s motion. Dkt. 64. The remaining defendants did not file any opposition to the 7 motion. 8 DISCUSSION 9 A. Legal Standard 10 Under Rule 15, a party generally may amend its pleadings as a matter of course 11 within 21 days of their service. Fed. R. Civ. Pro. 15(a)(1). After that, a party may amend 12 its pleadings only if it obtains the opposing party’s written consent or leave of court. Fed. 13 R. Civ. Pro. 15(a)(2). In the latter scenario, courts “should freely give leave when justice 14 so requires.” Id. 15 When deciding whether to grant leave, courts consider the following five factors: 16 “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of 17 amendment; and (5) whether plaintiff has previously amended his complaint.” In re W. 18 States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013). In the 19 Ninth Circuit, “[n]ot all of the factors merit equal weight,” rather “it is the consideration of 20 prejudice to the opposing party that carries the greatest weight.” Eminence Capital, LLC 21 v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 22 “The party opposing amendment bears the burden of showing prejudice.” DCD 23 Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent such showing, or 24 a strong showing under the above remaining factors, “there exists a presumption under 25 Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC, 316 F.3d at 26 1052 (emphasis in the original). 27 B. Motion for Leave 1 plaintiff’s request under only the prejudice, undue delay, bad faith, and futility factors. 2 1. Prejudice 3 In their opposition, the medical defendants assert that they would suffer two forms 4 of prejudice if the court permitted plaintiff’s request. First, they characterize the SAC as 5 making “a massive change in the nature of the allegations.” Dkt. 64 at 2, 9, 10. To 6 support that argument, the medical defendants point to the SAC’s allegations concerning 7 H.I.G.’s control of CFMG and Wellpath. Id. They reason that, because H.I.G. “has not 8 been the subject of any discovery in this case,” id. at 2, 5, 7, their defense will suffer 9 “severe” prejudice, id. at 2, 7. 10 Second, the medical defendants argue that neither Purcell nor Hallman “would be 11 able to prepare and file initial pleadings and thereafter participate in the minimal time” 12 permitted by the court’s scheduling orders. Id. at 2. 13 The court concludes that both assertions are unpersuasive. With respect to their 14 first argument, the medical defendants fail to proffer any evidence showing that, at the 15 time plaintiff filed this motion, they had even propounded any discovery. In support of her 16 reply, plaintiff’s counsel, Jeff Price, filed a declaration, signed May 20, 2021, in which he 17 stated “[a]s of today, to my knowledge, the CFMG defendants have conducted no 18 discovery in this case.” Dkt. 66 at 5 ¶ 3. Without having conducted any discovery in this 19 action, the medical defendants cannot reasonably claim that their “defense” would suffer 20 prejudice. At least when plaintiff filed her request, such “defense” did not exist. 21 In any event, the court closely reviewed and (painfully) compared the complaint, 22 FAC, and SAC. The court disagrees with the medical defendants’ characterization that 23 the SAC works a sea-change from its FAC counterpart. Critically, in the SAC, plaintiff 24 continues to advance the same deliberate indifference theories of liability. Compare FAC 25 ¶¶ 83-98, 117-20 with SAC ¶¶ 125-140, 159-65. She maintains her factual allegations 26 about Conaway’s intake, care, behavior, and death while in County custody between 27 March 4, 2019 and April 10, 2019. Compare FAC ¶¶ 33-78 with SAC ¶¶ 75-121. She 1 Given the above, the court finds that the medical defendants’ first argument lacks merit. 2 With respect to their second argument, the medical defendants are correct that, 3 under the existing deadlines, both Purcell and Hallman would have little time to respond 4 to the SAC or conduct discovery. Importantly, the court set the dispositive motion 5 hearing deadline for October 6, 2021, Dkt. 35, which is only three months away. 6 However, because the court previously permitted the parties to expand the fact discovery 7 cutoff, Dkt. 55, the court incidentally extended the deadline for the parties to file any 8 amended pleading and identify any Doe defendants, Dkt. 35. By filing her request on 9 April 29, 2021, plaintiff complied with that deadline. Under these circumstances, the 10 court may revisit its pretrial and trial dates to avoid any prejudice to Hallman or Purcell. 11 Given that, the court finds that the medical defendants’ second argument is a non-issue. 12 For the above reasons, the court concludes that the prejudice factor does not 13 overcome the presumption in favor of permitting plaintiff leave to file the SAC. 14 2. Undue Delay 15 As noted above, plaintiff filed the subject request by the April 29, 2021 deadline for 16 filing a motion for leave to file an amended pleading. In her opening brief, plaintiff 17 explains that she learned about the need to substitute Purcell for the FAC’s “Richard 18 Roe, M.D.” Doe defendant during discovery. Dkt. 63 at 4. Similarly, she explains that 19 “extensive discovery” has led her to determine that Hallman should be added as a 20 defendant. Id. The court finds those explanations plausible. In light of that finding, and 21 the timeliness of plaintiff’s request, the court concludes that plaintiff did not act with any 22 “undue” delay when seeking to name Purcell and Hallman as defendants to this action. 23 The court further concludes that plaintiff did not act with any such delay when 24 raising any of the SAC’s other factual allegations, including those pertaining to H.I.G.’s 25 purported control of the entity defendants. Again, plaintiff timely filed her request. Under 26 the circumstances at hand, the court holds that the undue delay factor does not 27 overcome the presumption in favor granting plaintiff leave to file the SAC. 1 3. Futility 2 In their opposition, the medical defendants vaguely suggest that plaintiff’s attempt 3 to name Hallman as a defendant would be futile because Hallman has “nothing to do” 4 with medical operations or policies at the subject jail, he is not a physician, and his job is 5 limited to “business activities.” Dkt. 64 at 4, 11. The medical defendants also suggest 6 that the SAC’s references to H.I.G. are legally irrelevant because plaintiff fails to explain 7 how that entity is “connected” to “the provision of care” at the subject jail facility. Id. at 8. 8 The court finds both suggestions unpersuasive. To the extent Hallman wishes to 9 file a Rule 12(b)(6) motion challenging the sufficiency of the allegations underlying the 10 claims against him, he will have his opportunity to do so. That challenge, however, is for 11 Hallman to advance once he has been served—not the medical defendants. 12 The medical defendants might be correct that the H.I.G. related allegations are 13 neither here nor there. However, at this stage, where plaintiff enjoys a presumption in 14 favor of amendment, the medical defendants mistakenly assume that plaintiff must 15 affirmatively refute futility. That is not the law. Eminence Capital, LLC, 316 F.3d at 1052 16 (“Absent prejudice, or a strong showing of any of the remaining Foman factors, there 17 exists a presumption under Rule 15(a) in favor of granting leave to amend.”) (emphasis in 18 the original). 19 4. Bad Faith 20 In their opposition, the medical defendants suggest that two circumstances 21 indicate that plaintiff acted in bad faith when seeking leave to file the SAC: (1) plaintiff’s 22 decision to refer to H.I.G. in the SAC without also naming that entity as a defendant; and 23 (2) the proximity in time between plaintiff’s request and the discovery cutoff. Dkt. 64 at 6. 24 Again, the court concludes that both such suggestions are unpersuasive. With 25 respect to the first suggestion, the medical defendants do not identify any basis to require 26 plaintiff to name H.I.G. as a defendant simply because she wishes to refer to that entity. 27 With respect to the second suggestion, the court understands that there is always a 1 on the record before it, the court cannot find that plaintiff acted with a dilatory intent when 2 seeking leave to file the SAC. Accordingly, the court concludes that the bad faith factor 3 does not overcome the presumption in favor of granting such leave. 4 * * * 5 For the above reasons, the court grants plaintiff’s motion for leave to file the SAC. 6 The court orders plaintiff to immediately file the proposed SAC (Dkt. 61-1) on the docket 7 as a separate entry. Following that filing, plaintiff must immediately serve Purcell and 8 Hallman with the SAC as well as a copy of this order. Purcell and Hallman must respond 9 to the SAC within the time permitted under Rule 15. Depending on their response (i.e., 10 answer versus Rule 12(b) motion), the court may issue a revised pretrial order. Unless 11 and until it rules otherwise, the court maintains its existing discovery deadlines with 12 respect to the claims between those parties that have appeared in this action. The 13 parties should not assume that the court will keep open discovery on this entire litigation 14 simply because Purcell and Hallman are now defendants to this action. 15 The deadline for seeking leave to file any amended pleading under Rule 15 has 16 passed. If plaintiff later seeks leave to file another amended pleading, she must satisfy 17 Rule 16(b)(4)’s good cause standard. The court cautions that its application of that 18 standard is exacting. The court will likely deny any future requests to amend by plaintiff. 19 C. Letter Request for Additional Depositions 20 On May 25, 2021, plaintiff filed a letter brief requesting that the court permit her to 21 take a total of 15 depositions. Dkt. 67. Later that day, plaintiff filed a revised letter brief 22 requesting the same relief. Dkt. 68. On June 23, 2021, plaintiff filed a second revised 23 letter brief instead requesting that the court permit her to take 17 depositions. Dkt. 80. 24 The court denies plaintiff’s request. Pursuant to this court’s standing order,2 the 25 parties must meet and confer before filing a discovery motion.3 In her letter briefs, 26 2 https://cand.uscourts.gov/judges/hamilton-phyllis-j-pjh/ 27 3 The court understands that plaintiff addressed her second revised letter brief to 1 plaintiff failed to provide any indication showing that she satisfied (or attempted to satisfy) 2 that requirement. Plaintiff may still meet and confer with defendants concerning the 3 additional depositions. If the parties are unable to reach a resolution following such 4 conference, plaintiff may renew her request by filing a joint letter brief detailing her and 5 defendants’ positions on this matter. In it, plaintiff must offer a plan to take all depositions 6 by the fact discovery cutoff. Plaintiff must file any such letter by Friday, July 16, 2021. 7 One final point. The court notes that it will likely deny any renewed request as 8 untimely. As previously stated, this court issued its pretrial order on August 21, 2020. 9 Dkt. 35. Thus, plaintiff waited nine months—i.e., two months before the close of fact 10 discovery—to request the subject additional depositions. In her second revised letter, 11 plaintiff failed to offer any specific justification for that delay. She also fails to explain how 12 the relief requested is appropriate when, as of her second revised request, she had taken 13 only two depositions in this action. Dkt. 81 at 1-2. Under these circumstances, the court 14 would likely find it unfair to require defendants to defend any additional depositions at 15 such a late juncture in discovery. In any renewed letter, plaintiff must explain why the 16 timing of her request is appropriate despite that unfairness to defendants. 17 IT IS SO ORDERED. 18 Dated: July 7, 2021 19 Phyllis J. Hamilton PHYLLIS J. HAMILTON 20 United States District Judge 21 22 23 24 25 26 27