LAWRENCE O. ANDERSON, Magistrate Judge.
This case comes before the Court on the Motion for Leave to File First Amended Complaint, filed on February 1, 2012, by Plaintiffs Regional Care Services, an Arizona Corporation, and Regional Care Services Corporation Health and Welfare Employee Benefit Plan (collectively "Regional Care"). (Doc. 104) Defendant Companion Life Insurance Company filed a response in opposition to the motion, to which Regional Care replied. (Docs. 109, 112) The parties' requests for oral argument on the motion are denied because the briefing is adequate and oral argument would not aid the Court. Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999); LRCiv 7.2(f). The parties' summary judgment motions are pending for rulings which will be decided by separate order. (Docs. 85, 87) After considering the briefing and the applicable law, the Court denies Plaintiffs' request for leave to file an amended complaint on the ground that Regional Care has failed to exercise due diligence to discover facts to support a tort cause of action for insurance bad faith.
The Court is again asked to modify the case management order in this case without the requisite showing of good cause. See Regional Care Service Corp. v. Companion Life Ins. Co., 2011 WL 5839546 (D.Ariz. November 21, 2011) (denying Companion Life's Motion to Extend Discovery Deadlines). The Court will not repeat that which it has made plain to counsel at the January 27, 2011 scheduling conference, in the Rule 16 scheduling order, doc. 17, and the November 21, 2011 order denying the request to extend discovery deadlines, except as necessary to explain its ruling on Regional Care's amendment motion.
Generally, this action seeks to recover payment of the substantial medical expenses paid by Regional Care Services Corporation Health and Welfare Employee Benefit Plan, a self-funded ERISA employee benefit plan providing healthcare benefits to the employees of Regional Care Services Corporation d/b/a Case Grande Regional Medical Center and its subsidiaries, against Defendant Companion Life Insurance Company ("Companion Life") which issued an excess loss insurance policy for the plan. (Docs. 1; 14 at 2-3) Regional Care alleges Dr. John and Jessica Gietzen and their adopted daughter, M.F.G.,
Regional Care filed the complaint on November 2, 2010, in the Maricopa County Superior Court, alleging breach of contract and seeking compensatory damages. (Doc. 1-1, Exhibit ("Exh.") B at 8-15) Companion Life timely removed the action to this District Court on December 2, 2010, and filed its answer on December 9, 2010. (Docs. 1, 9) All parties have consented to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Docs. 10-11) In the January 27, 2011 scheduling order, and after explaining to counsel that the various deadlines reached by mutual agreement at the case management conference were "
On February 1, 2012, over eight months after the scheduling order's amendment deadline expired, two months after most discovery closed on November 30, 2011,
Similarly, Companion Life's response fails to address the good-cause standard and whether Regional Care has exercised due diligence in discovering the basis to assert a bad faith claim. Rather, Companion Life claims that allowing Regional Care to allege a bad faith claim "at the 13
In federal courts, amendments to Rule 7(a) pleadings involve the applicability of Rules 15 or 16 of the Federal Rules of Civil Procedure and are dependent upon the timing of the amendment request as it relates to the various deadlines established in the pretrial case management order. Rule 15(a)(2) provides that, except in circumstances not present here, "a party may amend its pleading only with the opposing party's written consent or the court's leave," which "[t]he court should freely give . . . when justice so requires." Fed.R.Civ.P. 15(a)(2). Rule 16(b)(4) provides, however, that "[a] schedule [established pursuant to a Rule 16(b)(1) scheduling order] may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4).
Although Rule 15 generally provides for liberal amendment to pleadings, once a pretrial scheduling order has been entered pursuant to Rule 16(b)(1), an additional showing of "good cause" for amendment must be made if the scheduling order's deadline for amending pleadings has passed. Johnson v. Mammoth Recreation, Inc., 975 F.2d 604, 608 (9th Cir. 1992) ("A party seeking to amend a pleading after the date specified in the scheduling order must first show good cause for amendment under Rule 16, then if good cause be shown, the party must demonstrate that amendment was proper under Rule 15.") (citation and internal quotation marks omitted); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1274 (9th Cir. 2000) ("Because [plaintiffs] raised the disparate impact theory of liability for the first time at summary judgment, the district court did not err when it did not allow them to proceed on it."); Kowalow v. Correctional Services Corp., 35 Fed.Appx. 344, 346-47 (9th Cir. 2002) (affirming District Court of Arizona's denial of motion for leave to amend complaint filed the day after the discovery deadline, stating plaintiff's "efforts to show good cause for the delay fall short."); FLIR Systems, Inc. v. Sierra Media, Inc., 2012 WL 243690, * 7 (D.Or. January 25, 2012).
For purposes of Federal Rule of Civil Procedure 16(b)(4), "good cause" means the scheduling deadlines cannot be met despite the party's diligence. Johnson, 975 F.2d at 609 (citing 6A Wright, Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990)). "The pretrial schedule may be modified if it cannot reasonably be met despite the diligence of the party seeking the extension. If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted." Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citation and internal quotation marks omitted).
Moreover, a district court may deny as untimely an amendment motion filed after the scheduling order's cut-off date where no request to modify the order has been made. Johnson, 975 F.2d at 608-09 ("We see no reason to deviate from that approach here, but the result would not change if Johnson's motion to amend the complaint were treated as a de facto motion to amend the scheduling order rather than a motion to join a party after the binding cut-off date for the motion had passed.") (citing U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985)) (concluding that district courts may deny as untimely a motion filed after the motion cut-off date established in the scheduling order where no request to modify the order has been made).
The District of Arizona consistently upholds the good-cause standard regarding amending pleadings after the scheduling order's amendment deadline has expired. Bernal v. Daewoo Motor America, Inc., 2011 WL 2174890, * 2 (D.Ariz. June 2, 2011); Al-Misehal Commercial Group Ltd. v. Armored Group LLC, 2011 WL 2080284, * 2 (D.Ariz. May 26, 2011) ("[I]n light of the fact that Armored Group moved to amend its answer three months after the deadline for amending pleadings, Armored Group has failed to demonstrate diligence in attempting to comply with the scheduling order's deadlines. Armored Group has also failed to demonstrate good cause for modifying the scheduling order."); Brooks v. Eclipse Recreational Vehicles, Inc., 2009 WL 1616017 (D.Ariz. June 9, 2009) (motion to amend complaint to allege a new theory of liability filed 11 days after amendment deadline denied due to failure to show good cause); Barker v. Hertz Corp., 2007 WL 4410253 (D.Ariz. December 13, 2007) (motion to amend pro se complaint to add additional parties filed on the day of the Rule 16 amendment deadline denied as "Plaintiff has not shown good cause and offers no valid basis on which to extend the Rule 16 scheduling deadlines."); Villa v. Brass Eagle, LLC, 2007 WL 446349, * 1 (D.Ariz. February 7, 2007) (unopposed motion to amend complaint to add punitive damages claim denied when motion filed three months after amendment deadline where "[P]laintiff does not argue that good cause exists for us to alter our scheduling order.").
"Federal Rule of Civil Procedure 16 vests the district court with early control over cases `toward a process of judicial management that embraces the entire pretrial phase, especially motions and discovery.'" In re Arizona, 528 F.3d 652, 657 (9th Cir. 2009), cert. denied, ___ S.Ct. ___, 2009 WL 1738654 (2009) (quoting Fed.R.Civ.P. 16 advisory committee's note, 1983 Amendment). "Rule 16 further recognizes the inherent power of the district court to enforce its pretrial orders through sanctions, Fed. R. Civ. P. 16(f), and the discretion of the [trial] judge to apply an appropriate level of supervision as dictated by the issues raised by each individual case." Id. (citing e.g., Fed. R. Civ. P. 16(c)(2)). Emphasizing the meaningful nature of the Rule 16 deadlines, the Ninth Circuit has made clear that "Federal Rule of Civil Procedure 16 is to be taken seriously. . . ." Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994).
"Pleadings cannot be a continuously moving target for obvious reasons. The amendment deadline serves to frame the issues at a fixed point in time so that the parties have an adequate opportunity to prepare their respective positions moving forward. Even so, the deadline will not entirely foreclose amendments, so long as the standard of good cause is met to warrant the amendment." Stephens v. Idaho Dept. of Parks and Recreation, 2011 WL 6150641, * 3 (D.Idaho December 12, 2011) "Here, the proffered reasons for the proposed untimely amendment do not constitute good cause, particularly where a primary element of good cause is due diligence." Id. (plaintiff's motion to amend complaint to allege causes of action for violations of civil rights and bad faith filed nearly six months after amendment deadline denied where the "[r]ecord contains no justification for her failure to uncover these alleged circumstances before [the amendment deadline]."
Absent from Regional Care's amendment motion and reply is any discussion, much less a demonstration, that Regional Care exercised due diligence to comply with the scheduling order's amendment deadline before the Court denied Companion Life's request to extend the dispositive motion and cross-motion deadlines on November 21, 2011. (Doc. 63) The sterile docket reflects that no substantive depositions were taken by either side until Companion Life filed a flurry of deposition notices and amended notices, beginning in mid-November, 2011. (Docs. 47-54, 58-60, 65) In fact, the docket does not reflect that Regional Care initiated any deposition until the parties filed a stipulation on November 23, 2011, to depose Dr. John and Jesica Gietzen on December 8, 2011, eight days after the November 30 discovery deadline expired. The Court granted a limited extension of the discovery deadline to depose the Gietzens, doc. 67, because, in their stipulation, Regional Care's counsel demonstrated the efforts made to contact Dr. Gietzen by telephone and letters, dated October 6, October 11, and October 31, 2011, to schedule the depositions until he was notified by the Gietzens' Phoenix lawyer that Dr. and Mrs. Gietzen were not available for depositions until the first week of December because Dr. Gietzen was sitting for his medical boards during the last week of November. (Doc. 66 at 2)
All of the bad faith cases upon which Regional Care relies to justify an untimely amendment of its complaint were issued and publicly available well-before January 17, 2011 scheduling order was entered, which forewarned counsel that its various "[d]eadlines are
The Court agrees with Companion Life that allowing Regional Care to allege an insurance bad faith cause of action after the close of discovery, especially if it means that a punitive damages claim may also be alleged, would cause significant prejudice to Companion Life in defending against this new claim unless the Court re-opened discovery. "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. . . ." Zivkovic, 302 F.3d at 1087. To avoid undue prejudice to Companion Life were the untimely amendment allowed, the Court would need to re-open discovery, which it is not inclined do in a lawsuit that was commenced in November 2010. Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) ("A need to reopen discovery and therefore delay the proceedings supports a district court's finding of prejudice from a delayed motion to amend the complaint.") (internal citation omitted).
"As the torrent of civil and criminal cases unleashed in recent years has threatened to inundate the federal courts, deliverance has been sought in the use of calendar management techniques. Rule 16 is an important component of those techniques." Bernal, 2011 WL 2174890 at * 2 (quoting Johnson, 975 F.2d at 611). "In these days of heavy caseloads, trial courts . . . set schedules and establish deadlines to foster the efficient treatment and resolution of cases." Id. (quoting Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005)). Moreover, as explained in Coleman, "[a] complaint guides the parties' discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiffs' allegations." Coleman, 232 F.3d at 1292. Similarly, Regional Care's failure to demonstrate good cause that with the exercise of due diligence it could not have discovered Companion Life's alleged bad faith does not warrant granting leave to amend the complaint and altering the scheduling order. Johnson, 975 F.2d at 609.
Accordingly,
(Docs. 104 at 2-3; 112 at 7)
