L.M.W. v. Arizona, State of

Opinion

1 WO 2 3 4 5

9 L.M.W., individually, and as the biological No. CV-22-00777-PHX-JAT father and on behalf of L.W., a minor., Plaintiff, 11 v. 12 State of Arizona, et al., 13 Defendants. 14

15 Pending before the Court is Plaintiff L.M.W.’s (“Plaintiff”) Motion for Leave to 16 File a First Amended Complaint and Motion for Leave to File PLT Motion to Modify the 17 Scheduling Order, (Doc. 116). Defendants James Tyus and Sonya Tyus have filed a 18 response, (Doc. 121). Defendant A New Leaf Incorporated (“New Leaf”) has also filed a 19 response, (Doc. 123). The remaining defendants filed a Joinder regarding the two 20 previously filed motions, (Doc. 130). Plaintiff has filed a reply, (Doc. 132). Because the 21 parties’ briefs were adequate for the Court to resolve the issues arising in Plaintiff’s 22 Motion, the Court finds this matter appropriate for decision without oral argument. L.R. 23 Civ. 7.2(f); see also Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); Lake at Las 24 Vegas Invs. Grp., Inc. v. Pacific Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991). 25 The Court now rules. 26 Also pending before the Court is Defendant New Leaf’s Motion for Summary 27 Judgment, (Doc. 119), and Defendant Anna Apolinar’s Motion for Sanctions, (Doc. 131). 28 The Court does not rule on these motions at this time. 2 Plaintiff filed this action in Maricopa County Superior Court alleging that Plaintiff’s 3 son suffered sexual abuse while living in Defendants Sonya and James Tyus’s foster care, 4 asserting claims against various Defendants, including the State of Arizona, individuals 5 involved in the Department of Child Safety (“DCS”), the Tyuses, and A New Leaf (a foster 6 home licensing agency). (Doc. 116 at 2–3). After Defendants removed the case, this Court 7 entered a Rule 16 scheduling order on July 15, 2022, setting the following relevant 8 deadlines: (1) motions to amend the complaint to be submitted by October 7, 2022, and (2) 9 discovery to be completed by October 13, 2023. (Doc. 19 at 1–2). The Court subsequently 10 extended the discovery deadline to February 12, 2024. (Doc. 49 at 2). 11 Plaintiff’s original complaint contained several counts asserted against several 12 defendants. For the purposes of this Order, the Court lists just the counts that Plaintiff 13 originally asserted against Defendant New Leaf: (1) willful and wanton 14 conduct/negligence, (2) loss of consortium, and (3) a 42 U.S.C.§ 1983 civil rights claim. 15 (Doc. 1-3 at 11–12, 14–15). 16 On December 28, 2023, nearly fifteen months after the deadline to move to amend 17 the complaint and less than two months before the extended discovery deadline, Plaintiff 18 filed a motion to modify the scheduling order and to permit Plaintiff to file a first amended 19 complaint to add a new claim against Defendant New Leaf: negligent training and 20 supervision. (Doc. 116; see also Doc. 132-1 at 19–20). In his motion to amend the 21 scheduling order, Plaintiff asserts the following pieces of evidence from discovery 22 precipitated Plaintiff’s motion to amend the complaint: (1) a closing summary form 23 prepared by Defendant New Leaf in December 2022, disclosed to Plaintiff on August 15, 24 2023, and (2) testimony from a deposition of James Tyus that took place on October 31, 25 2023. (Id. at 3–4). 27 The Court first notes that the parties’ arguments as to whether the December 2022 28 closing form and/or the James Tyus deposition constitute probative evidence supporting 1 the proposed new claim stray away from the core inquiry under Rule 16. That is, whether 2 certain evidence is probative of a particular claim is the inquiry this Court would conduct 3 only if it finds that such a claim can be brought. At this stage, the Court must simply 4 determine (1) whether it is appropriate to amend the scheduling order such that an 5 amendment to the complaint is permissible, and (2) if yes, whether to allow Plaintiff to 6 amend the complaint in the manner he seeks in his motion. As such, the Court limits its 7 discussion to these two issues. 8 Generally, Rule 15(a) governs a motion to amend pleadings to add claims or parties. 9 However, Rule 16 also applies because Plaintiff filed his request to amend his complaint 10 after the Rule 16 scheduling order’s deadline for amendments passed. See Johnson v. 11 Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). “[O]nce the district court 12 has filed a pretrial scheduling order pursuant to Rule 16 which establishes a timetable for 13 amending pleadings, a motion seeking to amend pleadings is governed first by Rule 16(b), 14 and only secondarily by Rule 15(a).” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. 15 Cal. 1999) (citing Johnson, 975 F.2d at 607–08). To permit a party to disregard a Rule 16 16 order by an appeal to the standards of Rule 15 would “undermine the court’s ability to 17 control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent 18 and the cavalier.” Johnson, 975 F.2d at 610; see also Sosa v. Airprint Sys., Inc., 133 F.3d 19 1417, 1419 (11th Cir. 1998) (“If [the court] considered only Rule 15(a) without regard to 20 Rule 16(b), [it] would render scheduling orders meaningless and effectively would read 21 Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure.”). 22 Accordingly, the Court will evaluate Plaintiff’s motion first under Rule 16, and then, if 23 necessary, under Rule 15(a). 24 a. Rule 16 25 Under Rule 16, a scheduling order “may be modified only for good cause and with 26 the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Under the “good cause” standard, “[t]he 27 pretrial schedule may be modified if it cannot reasonably be met despite the diligence of 28 the party seeking the extension. If the party seeking the modification was not diligent, the 1 inquiry should end and the motion to modify should not be granted.” Zivkovic v. S. Cal. 2 Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (internal quotation marks and citation 3 omitted). “Although the existence or degree of prejudice to the party opposing the 4 modification might supply additional reasons to deny a motion, the focus of the inquiry is 5 upon the moving party’s reasons for seeking modification.” Johnson, 975 F.2d at 609 6 (citing Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)). 7 Federal courts in Arizona and within the Ninth Circuit “have articulated and 8 undertaken [a] three-step inquiry in resolving the question of diligence in the context of 9 determining good cause under Rule 16[.]” Morgal v. Maricopa County Bd. of Supervisors, 10 284 F.R.D. 452, 460 (D. Ariz. 2012) (citations omitted) (quoting Grant v. United States, 11 No. 2:11-cv-00360 LKK KJN PS, 2011 WL 5554878, at *4 (E.D. Cal. Nov. 15, 2011), 12 adopted by 2012 WL 218959, at *1 (E.D. Cal. Jan. 23, 2012)). Under this inquiry, the 13 movant may be required to show: 14 (1) that he was diligent in assisting the court in creating a workable Rule 16 order; (2) that his noncompliance with a 15 Rule 16 deadline occurred or will occur, notwithstanding his 16 diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or 17 anticipated at the time of the Rule 16 scheduling conference; 18 and (3) that he was diligent in seeking amendment of the Rule 16 order, once it became apparent that he could not comply 19 with the order. 20 Morgal, 284 F.R.D. at 460 (citing Grant, 2011 WL 5554878, at *4). 21 Plaintiff argues that because all three requirements are met, this Court should amend 22 the scheduling order to permit Plaintiff to amend his complaint to assert his new claim 23 against Defendant New Leaf. (See generally Doc. 116). As for the first requirement, 24 Plaintiff argues that he, through counsel, participated diligently in each step in the process 25 of creating a workable Rule 16 order. (Id. at 5–6). As for the second requirement, Plaintiff 26 argues that he could not have reasonably foreseen the need for the proposed amendment 27 because “he did not learn of the information underlying his proposed amendments until 28 after October 31, 2023.” (Id. at 6). Plaintiff further argues that Defendant New Leaf “waited 1 until more than a year after the scheduling order’s October 2022 deadline . . . to first assert 2 [Plaintiff’s] original complaint lacked sufficient factual allegations to support a failure to 3 train claim . . . and threaten[] to file a motion for judgment on the pleadings.” (Id.). As for 4 the third requirement, Plaintiff argues that he was diligent in seeking to amend the 5 scheduling order because courts have routinely held that a plaintiff is diligent when he 6 spends the time necessary to gather new information and satisfy the attorney’s duty to 7 investigate under Fed. R. Civ. P. 11 before asserting legal claims. (Id. at 7).1 8 Defendants Sonya and James Tyus argue that Plaintiff’s proposed amended 9 complaint indeed “makes factual allegations and asserts direct claims against [James] Tyus 10 that are not present in the original [c]omplaint.” (Doc. 121 at 4). Namely, Defendants 11 Sonya and James Tyus point out that the original complaint names Sonya as “Tyus” and 12 James as simply Sonya’s spouse; the proposed amendment now names both spouses and 13 alleges for the first time that James’ conduct is a basis for claims. (Id. at 4–5). The Tyuses 14 point out that Plaintiff’s arguments about good cause under the second and third 15 requirements of the test pertain only to a lack of training by Defendant New Leaf; 16 moreover, they assert that Plaintiff was “well aware [the Tyuses] understood the 17 [c]omplaint to assert only claims arising from the conduct of Sonya Tyus.” (Id. at 5–6).2 18 Defendant New Leaf first points out that this Court has previously cautioned the 19 parties on multiple occasions that this Court will not extend the scheduling order deadlines 20 any further, as it has already granted an extension that caused the case to reach its almost 21 two-year anniversary of being filed.3 (Doc. 123 at 3 (citing Doc. 49)). Defendant New Leaf 22 further argues that Plaintiff has failed to show good cause because Plaintiff waited to begin 23 1 In his reply, Plaintiff reiterates his arguments that Defendant New Leaf improperly 24 withheld production of the December 2022 closing summary form, points out that said form was not created until seven weeks after the motion to amend deadline, and asserts that 25 Defendant New Leaf mistakenly stated that said form pertained only to time after Plaintiff’s minor son was removed from the Tyuses’ home. (Doc. 132 at 4–5). 26 2 Plaintiff’s reply asserts that he resolved the issues the Tyuses raise by clarifying his proposed amended complaint. (See Doc. 132 at 2–3). The Court does not discuss the issues 27 the Tyuses raise because the Court resolves Plaintiff’s motion on other grounds below. 3 The Court independently notes that the parties have known that two years from the date 28 of filing is the deadline to file dispositive motions, since this Court told them of this firm deadline at the Rule 16 conference in July 2022. 1 discovery until ten months after the scheduling conference, and seven months after the 2 deadline to move to amend the complaint had passed. (Id. at 6). Further, Defendant New 3 Leaf argues, Plaintiff was not diligent in pursuing amendment and has not demonstrated 4 that the deficiencies with the existing failure to train claim were unforeseeable. (Id. at 6– 5 7). 6 The Court turns first to the second requirement in the good cause analysis: “that 7 [Plaintiff’s] noncompliance with a Rule 16 deadline occurred or will occur, 8 notwithstanding his diligent efforts to comply, because of the development of matters 9 which could not have been reasonably foreseen or anticipated at the time of the Rule 16 10 scheduling conference.” Morgal, 284 F.R.D. at 460 (emphasis added) (citing Grant, 2011 11 WL 5554878, at *4). The Court notes that, contrary to Plaintiff’s argument, whether 12 Defendant New Leaf waited more than a year to assert that Plaintiff’s original complaint 13 did not support a failure to train claim is of little to no relevance to the inquiry into whether 14 Plaintiff worked diligently to comply with Rule 16 deadlines. Put differently, the Court 15 looks to a plaintiff’s diligence or lack thereof, not to assertions made by a defendant; the 16 plaintiff must diligently seek discovery to substantiate his claims regardless of the 17 defendant’s position on the substantiation. See Zivkovic, 302 F.3d at 1087 (“If the party 18 seeking the modification was not diligent, the inquiry should end and the motion to modify 19 should not be granted.”). 20 The Court further finds that even though Plaintiff began discovery within the 21 discovery deadline, and the December 2022 form was created after the deadline to move 22 to amend the complaint had passed, Plaintiff has not demonstrated the requisite diligence 23 in pursuing discovery for multiple reasons. First, contrary to Plaintiff’s contentions, it is 24 certainly relevant that Plaintiff waited to begin discovery until ten months after the entry 25 of the scheduling order and seven months after the deadline to move to amend the 26 complaint. See, e.g., Morris v. Sutton, No. 1:17-cv-01488-AWI-SAB, 2019 WL 2724057, 27 at *5 (E.D. Cal. July 1, 2019) (finding a plaintiff was not diligent when the plaintiff “failed 28 to issue basic written discovery until . . . nearly six months after the scheduling order was 1 issued, and fully one month after the . . . deadline to file a motion to amend the pleadings”). 2 Thus, the Court finds that Plaintiff’s failure to commence discovery for such a prolonged 3 time period constitutes a lack of diligence on Plaintiff’s part. 4 Moreover, the Court finds that based simply on the counts in Plaintiff’s original 5 complaint, Plaintiff could reasonably have foreseen that he would wish to bring a negligent 6 training and supervision claim against Defendant New Leaf. As discussed above, Plaintiff’s 7 original complaint asserts the following counts against Defendant New Leaf: (1) willful 8 and wanton conduct/negligence, (2) loss of consortium, and (3) a 42 U.S.C. § 1983 civil 9 rights claim. (See Doc. 1-3 at 11–12, 14–15). In Plaintiff’s allegations under (1), Plaintiff 10 states that Defendant New Leaf “knew or should have known that [Plaintiff’s son] faced an 11 unreasonable risk of sexual abuse and it was substantially likely that such abuse would 12 occur.” (Id. at 14 (emphasis added)). In Plaintiff’s allegations under (3), Plaintiff states that 13 “in the face of reports of the abuse suffered by [Plaintiff’s son, Defendant New Leaf] took 14 no such acts [precautions to prevent abuse] at all. Under the circumstances, the 15 consequences of the failure to train are so obvious . . ..” (Id. at 18 (emphasis added)). 16 Plaintiff now attempts to add a new claim alleging that Defendant New Leaf “negligently 17 failed to adequately and properly train the Tyuses” and “knew or should have known that 18 the Tyuses were not in compliance with” laws governing foster homes. (Id. at 19–20). 19 Given the significant—indeed, almost complete—overlap between the existing allegations 20 and the claim Plaintiff now seeks to bring,4 the Court finds nothing unforeseeable such that 21 Plaintiff satisfies the second requirement under Rule 16.5 22 As the Court has found that Plaintiff fails to satisfy the second requirement, it is not 23 necessary to reach the first or third. However, the Court addresses the third requirement 24 briefly. The Court agrees with Defendant New Leaf that Plaintiff’s delay from October 31, 25 4 By this Order, the Court makes no ruling on whether this language from the original 26 complaint was adequate to put Defendants on notice of and preserve a failure to train claim against Defendant New Leaf. 27 5 The Court notes in particular that even if, for example, the December 2022 form was not disclosed until after the deadline to move to amend the complaint, Plaintiff’s proposed 28 amendment is nonetheless reasonably foreseeable given Plaintiff’s original allegations. Thus, Plaintiff’s arguments concerning the specific timing of disclosures are unavailing. || 2023, until he filed the motion to amend the complaint on December 28, 2023, evidences 2|| a lack of diligence by Plaintiff in seeking amendment of the Rule 16 order. Although □□ Plaintiff correctly notes that an attorney has a duty under Rule 11 to investigate prior to asserting legal claims, Plaintiff, by his own admission, had obtained the last piece of 5 || evidence on which he bases his new allegation almost two full months before moving to || amend the scheduling order. See, e.g., Morris, 2019 WL 2724057, at *5 (finding a plaintiff did not diligently seek to amend the scheduling order when the plaintiff waited until “nearly 8 || a month” after the plaintiff received the new evidence to bring it to the court’s attention). Accordingly, because Plaintiff fails to satisfy at least the second and third requirements to amend a Rule 16 scheduling order, the Court concludes that amendment is inappropriate 11 |} and denies Plaintiff's motion. 12 b. Rule 15 13 As Plaintiff failed to demonstrate “good cause” under Rule 16 justifying amendment of the scheduling order, an analysis under Rule 15(a) discussing whether Plaintiff should 15 || be granted leave to amend his complaint is unnecessary. See Johnson, 975 F.2d at 608-09; 16|| Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (holding that a court need 17 || not evaluate Rule 15(a) unless the movant first meets the “good cause” requirement of Rule 18] 16). 19 Il. CONCLUSION 20 For the foregoing reasons, 21 IT IS ORDERED that Plaintiff's Motion, (Doc. 116), is DENIED. 22 IT IS FURTHER ORDERED that Defendant New Leaf’s Motion for Summary 23 || Judgment, (Doc. 119), and Defendant Anna Apolinar’s Motion for Sanctions, (Doc. 131), || remain pending. 25 Dated this Ist day of February, 2024. 26

28 James A. Teilborg Senior United States District Judge

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