Thomas J. Schoenbeck v. United States of America

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THOMAS J. SCHOENBECK, Case No.: 23-cv-1635-RSH-JLB

12 Plaintiff, ORDER DENYING MOTION FOR 13 v. LEAVE TO FILE THIRD AMENDED COMPLAINT 14 UNITED STATES OF AMERICA,

15 Defendant. [ECF No. 87] 16 17 18 19 Before the Court is plaintiff Thomas Schoenbeck’s motion for leave to file a third 20 amended complaint. ECF No. 87. As set forth below, the Court denies the motion. 21 I. BACKGROUND 22 Plaintiff is a retired U.S. Army Colonel and Executive Director within the Senior 23 Executive Service, with almost fifty years of uniformed and civilian federal government 24 service. ECF No. 17 ¶ 4.1. Plaintiff filed this action pro se on September 6, 2023 pursuant 25 to the Federal Tort Claims Act (“FTCA”), alleging failure to obtain informed consent, 26 medical battery, and negligence against the United States in connection with an angiogram 27 procedure that Plaintiff underwent in September 2019 at Navy Medical Center San Diego 28 (“NMCSD”). ECF No. 1. Shortly thereafter, counsel appeared on Plaintiff’s behalf; and on 1 February 20, 2024, Plaintiff through counsel filed his First Amended Complaint (“FAC”). 2 ECF Nos. 6–8. The FAC included claims under the FTCA for failure to obtain informed 3 consent, medical battery, negligence, and supervisory negligence. ECF No. 8. The 4 allegations in the FAC are summarized in the Court’s July 26, 2024 order. ECF No. 16 at 5 1–3. 6 Defendant thereafter moved to dismiss the FAC. ECF No. 10. On July 26, 2024, the 7 Court granted the motion in part. ECF No. 16. Specifically, the Court dismissed Plaintiff’s 8 claim for supervisory negligence based on the “discretionary function exception” to the 9 FTCA’s waiver of sovereign immunity. Id. at 5–10. The Court denied the remainder of the 10 motion to dismiss, and granted Plaintiff leave to file a second amended complaint. Id. at 11 14. 12 On August 5, 2024, Plaintiff filed his Second Amended Complaint (“SAC”), the 13 operative pleading, which pleads claims for failure to obtain informed consent, medical 14 battery, and negligence. ECF No. 17. On August 9, 2024, Defendant filed its Answer. ECF 15 No. 18. 16 On September 19, 2024, the Court issued a scheduling order. ECF No. 28. The 17 scheduling order provided, among other deadlines, that any motion to amend the pleadings 18 must be filed by October 17, 2024; that all discovery requests must be served by January 19 17, 2025; and that fact discovery was to be completed by the Parties by March 14, 2025. 20 Id. at 2.1 21 On July 10, 2025, the Court granted the motion to withdraw as counsel filed by 22 Plaintiff’s attorneys, based on a breakdown in communications, and absent objection by 23

24 25 1 Thereafter, upon motions made by one or both Parties, the Court extended the deadline for completing fact discovery several times, to May 14, 2025, to June 26, 2025, 26 and to September 5, 2025. ECF Nos. 42, 48, 61. On September 2, 2025, upon joint motion 27 of the Parties, the Court further extended this deadline to October 10, 2025. ECF No. 72. The Court noted that this extension was only for the limited purpose of completing 28 1 Plaintiff. ECF No. 60. From that point forward, Plaintiff has proceeded pro se. His filings 2 have been made by his wife, Dr. Ava Grace, who states that despite Plaintiff’s physical 3 impairments, he remains cognitively capable of directing his legal case and has authorized 4 her to file documents on his behalf.2 See, e.g., ECF No. 84 at 2. 5 On August 21, 2025, Plaintiff filed a motion for leave to amend his operative 6 pleading. ECF No. 64. Although this motion was styled as a “motion for leave to file second 7 amended complaint,” the operative pleading was the SAC; in effect the motion was seeking 8 to file a third amended complaint. The motion included a copy of a proposed amended 9 pleading, styled as a second amended complaint. ECF No. 64-1. 10 On August 25, 2025, Plaintiff filed a document captioned as a “notice of withdrawal 11 of mistakenly mailed amended complaint.” ECF No. 66. In that document, Plaintiff advised 12 that the previous filings “were erroneously mailed to the Chambers with errors,” advised 13 that “that submission” was being withdrawn, and stated that Plaintiff’s wife had advised 14 chambers by phone that “appropriate and corrected documents will be forthcoming directly 15 to the Clerk’s Office per Chamber Rules via Fedex.” Id. at 1–2. Based on this advisal, the 16 Court understood that any documents erroneously mailed to chambers in lieu of filing 17 should be disregarded; however, the Court did not construe Plaintiff’s advisal as 18 withdrawing the filed version of the motion for leave to amend and its proposed amended 19 pleading. Thus, the Court issued a briefing schedule on Plaintiff’s motion for leave to 20 amend [ECF No. 64], with due dates for opposition and reply briefs.3 ECF No. 70. On 21 September 12, 2025, Defendant filed an opposition to the motion. ECF No. 73. 22

23 2 On August 25, 2025, Dr. Grace filed a motion to proceed pro se as next friend for 24 Plaintiff. ECF No. 67. On August 28, 2025, the Court denied the motion. ECF No. 68. 25 “[C]ourts have routinely adhered to the general rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative capacity.” Simon v. Hartford Life, 26 Inc., 546 F.3d 661, 664 (9th Cir. 2008). 27 3 Pursuant to Civil Local Rule 7.1 together the undersigned’s Chambers Civil Procedures § III(B), both available on this Court’s website, a party wishing to file a noticed 28 1 On September 25, 2025, the day before Plaintiff’s reply brief was due, Plaintiff filed 2 a motion to continue all deadlines in the case due to his hospitalization and incapacity. ECF 3 No. 78. The same day, the Court entered an order continuing all deadlines by 30 days and 4 setting a date for the Parties to submit a status report. ECF No. 79. On October 16, 2025, 5 before the status report was due, the Court issued an order recognizing that the action was 6 temporarily stayed pursuant to the Court’s General Order No. 766, due to the government 7 shutdown, and advising that the deadline for a status report would be reset after the 8 shutdown.4 ECF No. 81. 9 On December 13, 2025, Plaintiff filed a document advising that he had been 10 discharged from the hospital on November 14, 2025, and reiterating that Plaintiff sought 11 to file an amended pleading. ECF No. 84. This Court construed the request as advising that 12 Plaintiff wished to resume briefing on Plaintiff’s motion, made on August 21, 2025, to file 13 the proposed pleading that Plaintiff had submitted on that date. Defendant having already 14 filed an opposition, the Court set a further deadline for Plaintiff to file his reply. ECF No. 15 85. 16

17 motion must select a hearing date 35 days from the date of filing. Although the Court will 18 not hold oral argument on that date unless separately ordered, the hearing date determines 19 the due date for the opposition brief (14 days in advance) and reply brief (7 days in advance). Because Plaintiff was proceeding pro se, the Court, in lieu of rejecting Plaintiff’s 20 motion for lack of a hearing date, separately ordered a briefing schedule for Plaintiff’s 21 August 21, 2025 motion for leave to amend. The Court similarly issued a briefing schedule for Plaintiff’s December 23, 2025 motion for leave to amend. The Court expects the Parties 22 in the future to comply with the applicable Local and Chambers Rules. 23 4 U.S. District Court for the Southern District of California General Order No. 766, “Temporary General Order Staying Civil Matters Involving the United States as a Party,” 24 (Oct. 7, 2025) provided that unless otherwise ordered by an assigned district judge, all civil 25 matters (except for civil immigration habeas corpus petitions) in which the United States is as party were stayed from October 1, 2025 pending restoration of funding to the 26 Department of Justice. A subsequent General Order, No. 766-A (Nov. 21, 2025), states that 27 except as otherwise ordered by the assigned judge, previous deadlines were extended for a period commensurate with the lapse in appropriations between October 1 through 28 1 On December 23, 2025, the due date for the reply brief, Plaintiff again filed a 2 document requesting leave to amend, this time attaching a proposed amended pleading that 3 was approximately twice the length of that accompanying his August 21, 2025 motion. 4 ECF No. 87. The Court construed Plaintiff’s filing as a withdrawal of his prior motion for 5 leave and a new motion to amend. Accordingly, the Court set a briefing schedule on the 6 motion. ECF No. 88. On January 20, 2026, Defendant timely filed an opposition. ECF No. 7 89. On January 27, 2026, Plaintiff timely filed a reply. ECF No. 90. 8 The following order addresses Plaintiff’s motion for leave to amend filed on 9 December 23, 2025. 10 II. LEGAL STANDARD 11 Where a motion for leave to amend a pleading is filed after the deadline for 12 amendment set in a scheduling order, Federal Rule of Civil Procedure 16 governs. Johnson 13 v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Rule 16(b)(4) provides 14 that “[a] schedule may be modified only for good cause and with the judge’s consent.” 15 “Good cause” focuses on the diligence of the party seeking an amendment. Johnson, 975 16 F.2d at 609. A district court may modify a pretrial schedule “if it cannot reasonably be met 17 despite the diligence of the party seeking the extension.” Id. (citations omitted). If the party 18 seeking to modify the scheduling order to amend its pleadings demonstrates good cause 19 under Rule 16(b), then it must also demonstrate that the amendment is proper under Federal 20 Rule of Civil Procedure 15 standards. Id. at 608. 21 Under Rule 15(a), a party may amend its complaint or counterclaims once as a matter 22 of course within specified time limits. Fed. R. Civ. P. 15(a)(1). “In all other cases, a party 23 may amend its pleading only with the opposing party’s written consent or the court’s leave. 24 The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). 25 “Although the rule should be interpreted with ‘extreme liberality,’ leave to amend is not to 26 be granted automatically.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) 27 (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)); see also U.S. ex rel. 28 Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (“[L]iberality 1 in granting leave to amend is subject to several limitations.”) (internal quotation marks 2 omitted). 3 When determining whether to grant leave to amend, courts generally consider five 4 factors, known as the Foman factors as set forth by the Supreme Court in Foman v. Davis, 5 371 U.S. 178 (1962). These factors include: (1) undue delay; (2) bad faith on the part of 6 the party seeking leave to amend; (3) undue prejudice to the non-moving party; (4) futility 7 of amendment; and (5) whether the plaintiff has previously amended the pleading. Foman, 8 371 U.S. at 182; see Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014); 9 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Among these factors, “it is the 10 consideration of prejudice to the opposing party that carries the greatest weight.” Eminence 11 Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent prejudice, or a 12 strong showing of any of the remaining Foman factors, there exists a presumption under 13 Rule 15(a) in favor of granting leave to amend.” Id. 14 The decision whether to grant leave to amend “is entrusted to the sound discretion 15 of the trial court.” Pisciotta v. Teledyne Indus., 91 F.3d 1326, 1331 (9th Cir. 1996). A 16 court’s “discretion to deny leave to amend is particularly broad where plaintiff has 17 previously amended the complaint.” Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 18 1149, 1160 (9th Cir. 1989). 19 III. ANALYSIS 20 Plaintiff’s operative motion to amend was filed on December 23, 2025, over two 21 years after the filing of this lawsuit (on September 6, 2023), over one year beyond the 22 deadline (of October 17, 2024) contained in the relevant Rule 16 scheduling order for filing 23 such a motion, and approximately 11 months beyond the deadline (January 25, 2025) for 24 propounding discovery requests. See ECF Nos. 1, 28, 72, 87. The Court considers whether 25 there is good cause for this delay. 26 The Court notes at the outset two circumstances that make it more difficult for 27 Plaintiff to carry his burden here. First, the proposed pleading does not purport to be 28 complete in and of itself. Instead, it recites that Plaintiff “incorporate[s] by reference the 1 factual allegations set forth in the Second Amended Complaint (SAC) and the exhibits 2 cited therein,” but that “[t]o the extent of any inconsistency, the allegations of this Third 3 Amended Complaint control.” ECF No. 87-1 at 28. This is not only inconsistent with an 4 amended pleading, but it also renders Plaintiff’s operative factual allegations and claims 5 indeterminate. For purposes of the analysis that follows, the Court will disregard this 6 statement of incorporation by reference, and construe ECF No. 87-1 as the entirety of 7 Plaintiff’s proposed pleading. 8 Second, the question of good cause for delay in seeking amendment depends in part 9 on the nature of that amendment—including the similarities and differences between the 10 operative pleading and the amended pleading. In order to elucidate these differences, Civil 11 Local Rule 15.1 requires that a motion to amend “be accompanied by … a version of the 12 proposed amended pleading that shows – through redlining, underlining, strikeouts, or 13 other similarly effective typographic methods – how the proposed amended pleading 14 differs from the operative pleading.” CivLR 15.1(c). See also Chambers Civ. Proc. § III(I). 15 Plaintiff’s motion takes note of this requirement but asks that any redline requirement be 16 excused at this stage in light of his circumstances. ECF No. 87 at 4. Although the Court 17 excuses the lack of a redline, Plaintiff’s motion to amend nonetheless fails to articulate 18 what is materially different, in his view, about the claims in his proposed pleading relative 19 to the SAC. Plaintiff’s motion simply states that the proposed pleading “incorporates newly 20 discovered medical evidence, clarifies causation related to the angiogram-induced stroke, 21 and updates allegations based on facts learned after the filing of the original motion,” 22 referring to the motion to amend he made on August 21, 2025, that was superseded by his 23 present motion. Id. at 3–4. 24 In arguing that “good cause” exists for the delay, Plaintiff contends first that “[s]ince 25 the filing of the original motion for leave to amend, Plaintiff experienced prolonged 26 hospitalization for pneumonia, respiratory instability, severe pain, and escalating 27 neurological symptoms. Plaintiff was discharged on November 14, 2025.” Id. at 2. In 28 referring to the filing of the original motion for leave to amend,” Plaintiff is again referring 1 to his motion filed on August 21, 2025. The issue here, however, is not whether Plaintiff 2 was diligent in revising his August 21, 2025 motion to amend and the proposed pleading 3 submitted with that motion. Instead, the issue is whether Plaintiff—and Plaintiff’s counsel, 4 during the period that counsel represented Plaintiff in this case—were diligent in filing a 5 motion to amend far beyond the October 17, 2024 deadline provided in the Court’s 6 scheduling order. Plaintiff has not provided evidence supporting a delay of that duration. 7 Plaintiff also argues “good cause” for delay based on his discovery of new evidence, 8 following his discharge from the hospital on November 14, 2025: 9 On the date of discharge, Plaintiff underwent an FDG-PET/CT brain scan at Cedars-Sinai Medical Center. The PET scan revealed 10 widespread cortical hypometabolism inconsistent with classical ALS 11 and suggesting of overlapping neurodegenerative disease and confirmed a photopenic region corresponding to Plaintiff’s prior 12 posterior cerebral artery infarct. This objective evidence was not 13 available at the time of earlier pleadings and materially affects causation, damages, and expert analysis. 14

15 Id. However, the fact that Plaintiff recently became aware of information does not, without 16 more, justify late amendment of his pleading; absent from the motion are (1) a precise 17 articulation of any new theory of liability or damages, (2) an adequate explanation of how 18 the newly discovered information supports that theory, and (3) a justification for why the 19 new theory could not have been advanced earlier in the exercise of reasonable diligence. 20 In the absence of guidance from Plaintiff’s motion, the Court turns to Plaintiff’s 21 proposed pleading itself. Among the multiple changes in that pleading relative to the SAC, 22 the proposed pleading appears to introduce new allegations relating to the interaction 23 between Plaintiff’s military service, his angiogram, his stroke, and his neurodegenerative 24 disease, including that: (1) Plaintiff’s service-related exposures created elevated risks of 25 stroke and amyotrophic lateral sclerosis (“ALS”), which were not disclosed to Plaintiff 26 prior to his angiogram; and (2) Plaintiff’s angiogram-induced stroke in turn caused, 27 accelerated, or exacerbated the progression of his neurodegenerative disease. See ECF No. 28 87-1 at 2, 3, 8–9, 11, 21, 24, 29, 58. Plaintiff’s proposed pleading adds citations to 1 published studies that Plaintiff describes as acknowledging that toxic exposure, and trauma 2 such as strokes, can accelerate the progression of ALS and other neurodegenerative 3 diseases. See id. at 3, 10–11, 19-20, 39, 41, 58–59, 66. The proposed pleading asserts that 4 the November 14, 2025 brain scan provides “objective metabolic confirmation” that the 5 “injury model” contained in those studies are “applicable to the Plaintiff.” Id. at 11. But 6 even looking to the proposed pleading to furnish analysis that is missing from Plaintiff’s 7 motion to amend, Plaintiff does not adequately explain how the brain scan results confirm 8 his model of injury. Additionally, the proposed pleading does not address why Plaintiff, 9 his counsel, and/or any medical experts they chose to consult, did not previously review 10 the medical literature or explore the connection between Plaintiff’s service-related 11 exposures, stroke, and neurodegenerative disease. In short, despite the recent brain scan, 12 Plaintiff has not carried his burden of showing reasonable diligence in pursuing this 13 theory.5 14 Furthermore, the proposed pleading contains other amendments which Plaintiff does 15 justify based on newly discovered evidence. For example, the proposed pleading contains 16 numerous allegations intended to respond to the Court’s ruling from July 26, 2024 that the 17 supervisory negligence claim in the FAC was barred under the discretionary function 18 exception. See ECF No. 16 at 5–10 (order addressing discretionary function exception); 19 ECF No. 87-1 at 30–33 (section within proposed pleading entitled “discretionary function 20 exception does not apply”). These amendments do not purport to be based on newly 21 discovered evidence. As another example, the proposed pleading includes a claim under 22 the Americans with Disabilities Act and/or the Rehabilitation Act, alleging that in 2019, 23 Plaintiff’s neurological impairments were emerging but Defendants failed to accommodate 24 them. See ECF No. 87-1 at 56. Plaintiff does not explain why he did not or could not bring 25

26 27 5 The proposed pleading cites other records, beyond the November 14, 2025 brain scan, that Plaintiff recently discovered. See, e.g., ECF No. 87 at 4–5. The proposed 28 1 this claim earlier. As a further example, the proposed pleading includes a new claim for 2 loss of consortium, id. at 60–62, while the SAC alleged loss of consortium as an element 3 of damages rather than as a standalone claim. See ECF 17 ¶ 7.5. In short, these amendments 4 are not tailored to the evidence that Plaintiff identifies as newly discovered, but appear to 5 reflect a more general reconceptualization of Plaintiff’s claims. 6 Finally, Plaintiff’s motion states in conclusory terms that good cause exists as “prior 7 counsel failed to preserve discovery deadlines.” ECF No. 87 at 3. Plaintiff’s motion does 8 not elaborate, but the proposed pleading appears to fault his counsel for “failure to extend 9 the written discovery window after unilaterally ‘pausing’ discovery without Plaintiff’s 10 knowledge or content in January 2025.” ECF No. 87-1 at 6. This misapprehends the posture 11 of the case. The January 17, 2025 deadline for serving discovery requests was not a pause 12 unilaterally imposed by Plaintiff’s former counsel; it was instead a deadline set by Court 13 order. 14 Considering the proposed pleading as a whole relative to the SAC, Plaintiff has not 15 met his burden to establish “good cause” for the delay in seeking amendment at this stage, 16 as required by Rule 16(b). 17 The Court would reach the same result under a Rule 15(a) analysis, and exercise its 18 discretion to deny leave to amend. Plaintiff has already amended his pleading more than 19 once. Although the Court finds no bad faith on Plaintiff’s part, for the reasons discussed 20 above there is undue delay in Plaintiff’s request for leave to amend. Granting Plaintiff’s 21 request at this late stage would result in significant prejudice to Defendant. This lawsuit 22 was filed well over two years ago, and the deadline for propounding discovery requests 23 lapsed over a year ago. To introduce Plaintiff’s proposed pleading at this stage would mean 24 further motion practice on the pleadings and reopened and potentially repetitive discovery.6 25 At the same time, Plaintiff has an operative pleading, the SAC, with claims that survived a 26 27 28 6 1 ||motion to dismiss. The Court acknowledges that Plaintiff is dissatisfied that he and his 2 ||attorneys did not earlier pursue the additional causal theory that Plaintiff would now like 3 ||to explore and develop. In the Court’s view, however, it is too late to start over with the 4 || pleadings. 5 This Order expresses no view on the degree to which Plaintiff's new theories are 6 consistent with the allegations in the SAC. Nor does this Order address the admissibility 7 || of particular evidence at trial. 8 CONCLUSION 9 For the foregoing reasons, Plaintiffs motion to amend [ECF No. 87] is DENIED. 10 IT IS SO ORDERED. 11 || Dated: February 3, 2026 ‘ 12 Fo bunt ¢ [ove 3 Hon. Robert S. Huie United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28