ORDER Re: Defendants' Motion for Summary Judgment [41]; Plaintiff's Motion for Leave to File a First Amended Complaint [43]; Stipulation to Continue [64]

RONALD S.W. LEW, Senior District Judge.

Currently before the Court are two Motions: (1) Defendants Centers for Medicare and Medicaid Services ("CMS") and General Services Administration's ("GSA") (collectively, "Defendants") Motion for Summary Judgment [41] and (2) Plaintiff Vinod C. Patwardhan's Motion for Leave to File a First Amended Complaint [43]. Both Motions were filed on January 17, 2014. Defendants filed an Opposition to Plaintiff's Motion on January 28, 2014 [47] and Plaintiff filed an Opposition to Defendants' Motion on that day as well [48]. Defendants filed a Reply to their Motion on February 4, 2014 [54] and Plaintiff also filed a Reply to his Motion on that day [56]. Both Motions were taken under submission on February 12, 2014 [61].

Having reviewed all papers submitted pertaining to the Motions, and having considered all arguments presented to the Court, the court NOW FINDS AND RULES AS FOLLOWS:

Defendants' Motion for Summary Judgment is hereby GRANTED and Plaintiff's Motion for Leave to File a First Amended Complaint is hereby DENIED.

I. Background

In May 2009, Plaintiff was convicted of conspiracy, misbranding drugs into interstate commerce with intent to defraud or mislead, and smuggling. Defendants' Statement of Uncontroverted Facts and Conclusions of Law ("DSUF") ¶ 2; Plaintiff's Statement of Genuine Issues ("PSGI") ¶ 2; see United States v. Patwardhan, ED CR 08-00172 VAP, 2009 WL 2190191, at *1 (C.D. Cal. July 18, 2009) aff'd 422 F. App'x 614 (9th Cir. 2011). As a result of Plaintiff's conviction, Defendant CMS revoked Plaintiff's Medicare billing privileges effective May 8, 2009 pursuant to 42 U.S.C. § 1395u(h)(8) and 42 C.F.R. § 424.535. DSUF ¶ 3; PSGI ¶ 3; Dkt. #41-3.

Defendant CMS is the division of the Department of Health and Human Services ("HHS") responsible for administering the Medicare program on behalf of the Secretary of HHS. See Health Care Financing Administration; Statement of Organization, Functions, and Delegations of Authority, 46 Fed. Reg. 56,911 (Nov. 19, 1981); 42 C.F.R. § 400.200. 42 U.S.C. § 1395u(h)(8) allows the Secretary of HHS to refuse to enter into an agreement, to terminate an agreement, or to refuse to renew an agreement with a physician or supplier, "in the event that such physician or supplier has been convicted of a felony under Federal or State law for an offense which the Secretary determines is detrimental to the best interests of the program or program beneficiaries." Defendant CMS, accordingly, has the authority to revoke a physician's Medicare billing privileges when he is convicted of a felony. See 42 C.F.R. § 424.535(a)(3). Defendant CMS delegates certain functions to its Medicare administrative contractors, including determining the amount of the payments to be made to providers as required by the Medicare statute. 42 U.S.C. § 1395kk-1(a)(4)(A).

When a physician's billing privileges are revoked based on a felony conviction, the revocation is effective as of the date of the conviction. 42 C.F.R. § 424.535(g). Not only is such a physician no longer eligible to receive payment from Medicare (42 C.F.R. § 424.505), but such a physician is also barred from participating in the Medicare program from the effective date of the revocation until the end of the re-enrollment bar (42 C.F.R. § 424.535(c)).

In 2011, the Office of the Inspector General ("OIG"), a staff division of HHS, excluded Plaintiff from participation in Medicare, Medicaid, and all other federal health programs pursuant to 42 U.S.C. § 1320a-7. DSUF ¶ 4; PSGI ¶ 4; Dkt. #41-4. The exclusion became effective on July 20, 2011. See Dkt. ##41-4, 41-5. However, OIG later granted Plaintiff a partial waiver of his exclusion pursuant to 42 U.S.C. § 1320a-7(c)(2)(B) and 42 C.F.R. § 1001.1801(b). DSUF ¶ 5; PSGI ¶ 5; Dkt. ##41-4, 41-5. OIG granted Plaintiff a limited waiver for oncological items and services he provided in Upland, California, which became effective on December 20, 2011. See Dkt. #41-5.

Defendants contend that the information about Plaintiff's waiver was added to the MED on February 9, 2012. Dkt. #41-15 (Vogel Decl.) ¶ 5, Ex. A.1 In October 2012, Defendant CMS, apparently in connection with 42 C.F.R. § 402.308, decided to recognize OIG's partial waiver and reactivate Plaintiff's Medicare billing privileges for covered services to Medicare beneficiaries within the scope of OIG's partial waiver of exclusion. DSUF ¶ 6; PSGI ¶ 6; Dkt. ##41-6, 41-7.2

The Complaint alleges that Defendant CMS has failed to correct or amend its List of Excluded Individuals and Entities ("LEIE"). Compl. ¶¶ 18-19. The Complaint further alleges that Defendant CMS violated 5 U.S.C. § 552a by: (1) failing to accurately and timely maintain the LEIE; (2) failing to make reasonable efforts to assure the LEIE's accuracy and completeness; and (3) refusing to acknowledge receipt, or respond to, Plaintiff's request to amend or correct the LEIE. Id. at ¶ 24.

In fact, OIG, not Defendant CMS, maintains the LEIE, a publicly available system of records of excluded individuals and entities.3 See Background Information, OIG, HHS (Feb. 18, 2014), https://oig.hhs.gov/exclusions/background.asp; Search the Exclusions Database, OIG, HHS (Feb. 18, 2014), http://exclusions.oig.hhs.gov; Dkt. #41-15 (Vogel Decl.) ¶ 4. The Secretary of HHS delegates to OIG authority to exclude individuals and entities from federal health care programs based upon certain categories of convictions or other specified conduct. 42 U.S.C. § 1320a-7; 42 C.F.R. § 1001. If an individual or entity is excluded by OIG, he may not be reimbursed under Medicare, Medicaid, or another federal healthcare program. 42 C.F.R. § 1001.2. OIG has the authority to waive an individual or entity's exclusion as a provider from federal health care programs. 42 U.S.C. § 1320a-7(c)(3)(B); 42 C.F.R. § 1001.1801. Waivers may be given to excluded providers who are the "sole community physician or sole source of essential specialized services in a community." Id. On top of the LEIE, OIG also maintains a list of excluded individuals or entities to whom OIG has granted a waiver. See Waivers, OIG, HHS (Feb. 18, 2014), http://oig.hhs.gov/exclusions/waivers.asp.

Defendant CMS, on the other hand, is the system manager of the Medicare Exclusion Database ("MED"). See Privacy Act of 1974; Report of New System, 67 Fed. Reg. 8810-01 (Feb. 26, 2002). The purpose of the MED "is to retrieve information to aid in the ability of CMS and its contractors . . . to ensure that no Medicare payments are made with respect to any item or service . . . furnished by an individual or entity during the period when such individual or entity is excluded from participation in Medicare." Id. The MED contains information about individuals and entities who have been excluded by OIG; the MED also includes waiver information. Id.; Dkt. #41-15 (Vogel Decl.) ¶ 4. Defendant CMS receives a monthly file of exclusion data from the OIG; that file is automatically loaded and the data is incorporated into the MED. Dkt. #41-15 (Vogel Decl.) ¶ 3. When there is a waiver or exception to an exclusion, OIG sends this information to Defendant CMS to incorporate into the MED through the application's front-end interface. Id., Ex. A.

Access to the MED is limited. See Privacy Act of 1974; Report of a Modified or Altered System of Records, 71 Fed. Reg. 70967 (Dec. 7, 2006). In fact, "[t]he government will only release MED information that can be associated with an individual as provided" under its routine use policies. Id. Rather, MED information is provided only in certain circumstances, generally to support Defendant CMS, its contractors, research organizations, or other government agencies in connection with the Medicare and Medicaid programs. Id. In any event, it is clear that the MED is not publicly available. See id.

Defendant GSA is a federal executive agency. 40 U.S.C. § 301. Defendant GSA currently operates the System for Award Management ("SAM") Exclusions, which includes a database called the Excluded Parties List System ("EPLS"). 48 C.F.R. 9.404(a)(1); DSUF ¶ 13; PSGI ¶ 13. Plaintiff does not dispute that he was not damaged by any information in either EPLS or SAM. DSUF ¶ 15; PSGI ¶ 15.

Plaintiff ultimately filed a Complaint on January 11, 2013 [1], alleging, inter alia, that Defendants had injured him by failing to maintain the LEIE and EPLS in accordance with their legal obligations. See Compl. ¶¶ 23-25.

II. Legal Standard

A. Summary Judgment — Fed. R. Civ. P. 56

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is "material" for purposes of summary judgment if it might affect the outcome of the suit, and a "genuine issue" exists if the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence, and any inferences based on underlying facts, must be viewed in the light most favorable to the opposing party. Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1329 (9th Cir. 1983).

Where the moving party does not have the burden of proof at trial on a dispositive issue, the moving party may meet its burden for summary judgment by showing an "absence of evidence" to support the non-moving party's case. Celotex v. Catrett, 477 U.S. 317, 325 (1986).

The non-moving party, on the other hand, is required by Fed. R. Civ. P. 56(c) to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Id. at 324. Conclusory allegations unsupported by factual allegations are insufficient to create a triable issue of fact so as to preclude summary judgment. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). A non-moving party who has the burden of proof at trial must present enough evidence that a "fair-minded jury could return a verdict for the [non-moving party] on the evidence presented." Anderson, 477 U.S. at 255. Where a motion for summary judgment is grounded on the assertion that the non-moving party has no evidence, the non-moving party may defeat the motion by "calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party." Celotex, 477 U.S. at 332.

Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). The party who will have the burden of proof must persuade the Court that it will have sufficient admissible evidence to justify going to trial. Notmeyer v. Stryker Corp., 502 F.Supp.2d 1051, 1054 (N.D. Cal. 2007).

In ruling on a motion for summary judgment, the Court's function is not to weigh the evidence, but only to determine if a genuine issue of material fact exists. Anderson, 477 U.S. at 255.

B. Leave to Amend — Fed. R. Civ. P. 15

Leave to amend should be freely given "when justice so requires." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Determining whether to grant leave to amend "is generally within the sound discretion of the trial court" and "denial of a motion for leave to amend is reviewed for an abuse of discretion." Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996) (citing Rhoden v. United States, 55 F.3d 428, 432 (9th Cir. 1995); United States v. Cnty of San Diego, 53 F.3d 965, 969 n.6 (9th Cir. 1995)); Breakdown Servs., Ltd. v. Now Casting, Inc., 550 F.Supp.2d 1123, 1132 (C.D. Cal. 2007).

Four factors commonly used to justify a denial of leave to amend are (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility of the amendment. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); Perfect 10, Inc. v. Google, Inc., No. CV 04-9484 AHM (SHX), 2008 WL 4217837 at *2 (C.D. Cal. July 16, 2008). Another factor that courts occasionally consider is whether the plaintiff has previously amended its complaint. DCD Programs, 833 F.2d at 186, n.3. However, these enumerated factors are not of equal weight: potential prejudice to the opposing party carries the greatest weight among the factors. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "Absent prejudice, or a strong showing of any of the remaining. . . factors, there exists a presumption under rule 15(a) in favor of granting leave to amend." Id. Given the liberal policy of the Federal Rules of Civil Procedure in favor of amendments, the nonmoving party bears the burden of demonstrating why leave to amend should not be granted. Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530-31 (N.D. Cal. 1989); Breakdown Servs., 550 F. Supp. 2d at 1132.

III. Discussion

A. Plaintiff's Motion for Leave to File a First Amended Complaint

Leave to amend should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). Courts typically look to four factors in determining whether to deny granting leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility of amendment. DCD Programs, 833 F.2d at 186. Defendants argue that three factors, undue delay, prejudice, and futility, are present here.4

1. Undue Delay

In this case, it is clear that Plaintiff has unduly delayed in seeking amendment. Plaintiff knew of the defects in his Complaint as early as May 14, 2013, when the Parties filed their Joint Rule 26(f) Report. See Dkt. #12. Plaintiff clearly indicates in his portion of the Report that he had mistakenly named Defendant CMS as the entity maintaining the LEIE. See id. at 1 n.1 ("Plaintiff's Petition and Complaint inadvertently states that plaintiff seeks to have CMS amend the List of Excluded Individuals and Entities (LEIE) but plaintiff actually seeks to have CMS amend the Medicare Exclusion Database (`MED'). The LEIE is maintained by the OIG. The MED is maintained by CMS."). The Report also contemplates OIG's addition as a defendant, given OIG's role in maintaining the LEIE. See id. at 1. Given that his own portion the Report explains the Complaint's defects, Plaintiff can hardly say that he only became aware of these defects on October 24, 2013 when Defendants' Counsel brought them to his attention. Pl.'s Mot. for Leave to File First Am. Compl. 5:7-10. In short, Plaintiff has delayed without reasonable explanation for eight months before seeking leave to amend.

In considering whether a party has unduly delayed, courts inquire into "whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading." AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953 (quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990)). Courts have found that an eight month delay in seeking leave to amend is unreasonable. See Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 799 (9th Cir. 1991) (holding that a plaintiff unduly delayed in seeking amendment where it waited eight months after summary judgment had been granted against it and two years after filing of the initial complaint); Jackson, 902 F.2d at 1388 (finding undue delay where plaintiffs delayed filing an amended complaint for seven months from the time they had analyzed all the requisite facts); Alzheimer's Inst. of Am. v. Elan Corp. PLC, 274 F.R.D. 272, 277 (N.D. Cal. 2011) (finding three month delay in seeking leave to amend where party seeking to amend stated delay was due to inadvertence constituted an undue delay). Here, Plaintiff knew of his Complaint's mistaken identification of Defendant CMS as the entity maintaining the LEIE and of his failure to name OIG as a defendant as early as May 2013. Waiting eight months to correct these errors surely constitutes an undue delay.

Moreover, courts have found undue delay where a party seeks leave to amend on the eve of the motion or discovery cutoff date. See AmerisourceBergen, 465 F.3d at 957 ("We have often affirmed the denial of leave to amend when the motion was made after the cutoff date for such motions, or when discovery had closed or was about to close"); Zivkovic v. S. California Edison Co., 302 F.2d 1080, 1087 (9th Cir. 2002) (affirming denial of motion to amend where motion was filed only several days before the discovery cutoff and months before trial); Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir. 1998) (affirming district court's conclusion that motion to amend would cause undue delay and prejudice where motion was made on the eve of the discovery deadline). Plaintiff filed the instant Motion for Leave to File a First Amended Complaint on the discovery and motion cutoff date. See Dkt. ##28, 37, 43. Moreover, Plaintiff delayed in filing this Motion even after he had already stipulated with Defendants to extend the original scheduling order (see Dkt. #28) and then further stipulated to extend the discovery cutoff date (see Dkt. #37).

In short, the Court finds that Plaintiff unduly delayed in seeking leave to amend.

Nevertheless, Plaintiff correctly notes that undue delay, standing by itself, is generally insufficient to justify denying a motion to amend. See Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) ("Undue delay by itself, however, is insufficient to justify denying a motion to amend.") (citing DCD Programs, 833 F.2d at 186); Trans Video, 278 F.R.D. at 507; Boskoff v. Yano, 217 F.Supp.2d 1077, 1093 (D. Haw. 2001).

2. Prejudice to Opposing Party

Defendants also argue that allowing Plaintiff leave to amend at this date would cause prejudice, particularly because Plaintiff's proposed schedule following amendment would leave OIG with no opportunity to seek discovery or engage in motion practice. Plaintiff avers that these assertions are misplaced because Defendants have known of Plaintiff's assertions since the inception of the case and no new discovery need be conducted.

The Court rejects Plaintiff's arguments and finds that allowing Plaintiff leave to amend would prejudice Defendants and the proposed Defendant OIG.

"Amending a complaint to add a party poses an especially acute threat of prejudice to the entering party." DCD Programs, 833 F.2d at 187. In this sense, allowing Plaintiff to add OIG as a Defendant would certainly threaten OIG with prejudice even if, as Plaintiff asserts, OIG has been aware of this Action from the case's inception.

But more problematic is Plaintiff's request to reopen discovery. Specifically, Plaintiff, in conjunction with his Opposition to Defendants' Motion for Summary Judgment, requests that this Court allow him to produce expert discovery in the form of experts John Edelston and Michael Kaplan. This certainly would require this Court to reopen discovery — not just to allow the Parties to depose Mr. Edelston and Mr. Kaplan — but also to allow Defendants time to identify and retain rebuttal experts. "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." Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999) (citing Solomon, 151 F.3d at 1139). Furthermore, Plaintiff's proposed schedule — a continuation of the trial date by 60 days to allow for OIG to file a responsive pleading (see Pl.'s Mot. for Leave to File a First Am. Compl. 6:16-19) — would exacerbate the prejudice suffered by proposed Defendant OIG and the other Defendants, who would have little time to prepare their rebuttal to Mr. Edelston's testimony and simultaneously prepare its defense for trial.

The Court thus finds that allowing Plaintiff to amend his Complaint would strongly prejudice Defendants and proposed Defendant OIG.

3. Futility of Amendment

Finally, Defendants contend that, for the reasons laid out in their Motion for Summary Judgment, Plaintiff's proposed amendments would be futile. See Def.'s Opp'n to Mot. for Leave to File a First Am. Compl. 3:1-4:8. The Court analyzes Defendants' Motion for Summary Judgment below. Because the Court grants Defendants' Motion for Summary Judgment, the Court also finds that Plaintiff's proposed amendment is futile. See Jackson, 902 F.2d at 1388 n.4 (holding that the issue of futility for motion to amend is "inextricably tied to the propriety of the trial court's granting" of a motion for summary judgment).

4. Conclusion

Because Plaintiff unduly delayed in seeking leave to amend, the proposed amendment would prejudice the existing Defendants as well as the proposed Defendant OIG, and because the proposed amendments would be futile, the Court DENIES Plaintiff's Motion for Leave to File a First Amended Complaint [43].

B. Defendants' Motion for Summary Judgment

1. Summary Judgment as to Defendant GSA

As a preliminary matter, given Plaintiff's willingness to dismiss Defendant GSA as a Defendant (see Pl.'s Opp'n to Mot. for Summ. J. 2:3-7), and because Plaintiff does not dispute that he was not damaged by information in either the EPLS or SAM (see PSGI ¶ 15), the Court should GRANT Defendants' Motion for Summary Judgment as to Defendant GSA.

2. Summary Judgment as to Defendant CMS

a. Cause of Action under the Privacy Act, 5 U.S.C. § 552a

Plaintiff's sole remaining cause of action is under the Privacy Act's accuracy provisions. See Compl. ¶¶ 23-25; Dkt. #38.

Generally speaking, in order to state an accuracy claim under the Privacy Act, "an individual must show `1) that the government failed to fulfill its record keeping obligation, 2) which failure proximately caused the adverse determination, 3) that the agency failed intentionally or willfully to maintain the records, and 4) that the plaintiff suffered actual damages.'" Rouse v. U.S. Dep't of State, 567 F.3d 408, 417 (9th Cir. 2009) (quoting Rose v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990); Hewitt v. Grabicki, 794 F.2d 1373, 1379 (9th Cir. 1986)); 5 U.S.C. §§ 552a(g)(1)(C) and (D), 552a(g)(4).5

i. Whether Defendants' Failure was Intentional or Willful

In order for a plaintiff to prevail under his Privacy Act claim, he must show that the agency acted in a manner that was intentional or willful. See 5 U.S.C. § 552a(g)(4). Courts have held this to require that the plaintiff show that the agency's conduct amounted to something greater than gross negligence. Beaven v. U.S. Dep't Justice, 622 F.3d 540, 549 (6th Cir. 2010); Mount v. U.S. Postal Serv., 79 F.3d 531, 534 (6th Cir. 1996) (quoting White v. Office of Personnel Mgmt., 840 F.2d 85, 87 (D.C. Cir. 1988); Rose, 905 F.2d at 1260 (quoting Johnston v. Horne, 875 F.2d 1415, 1422 (9th Cir. 1989)); Covert v. Harrington, 876 F.2d 751, 757 (9th Cir. 1989) (holding that an agency acts in a willful or intentional manner when it acts without grounds for believing the act to be lawful or flagrantly disregarding others' rights under the Privacy Act).

In this case, Defendants have presented evidence that Defendant CMS amended the MED to reflect the OIG's waiver of exclusion on February 9, 2012. See Dkt. #41-15 (Vogel Decl.) ¶ 5, Ex. A; Dkt. #54-8 (Suppl. Vogel Decl.) ¶¶ 4-5, Ex. B. Defendants have also presented evidence that OIG only granted Plaintiff his waiver effective December 20, 2011. Dkt. #41-5. In other words, it appears that Defendant CMS at worst delayed a month and a half before amending the MED to reflect OIG's waiver — conduct hardly amounting to gross negligence. See Moskiewicz v. U.S. Dep't of Agriculture, 791 F.2d 561, 563-64 (7th Cir. 1986) (affirming district court's grant of summary judgment on plaintiff's Privacy Act claim where under the worst case scenario the defendant was merely negligent in maintaining its records).

Nevertheless, Plaintiff points to an internal memorandum within Defendant CMS purporting to show that Defendant CMS was aware of OIG's waiver as early as July 25, 2011 but did not update the MED until February 9, 2012. See Dkt. #50 (Ferrucci Decl.) ¶ 8, Ex. F.

Even assuming that Defendant CMS was aware of OIG's waiver as early as July 25, 2011, it is not clear how Defendant CMS' delaying until February 9, 2012 to update the MED could constitute grossly negligent behavior given that the Parties do not dispute that Defendant CMS did not recognize the OIG partial waiver until October 2012. See DSUF ¶ 6; PSGI ¶ 6. In other words, if Defendant CMS did not recognize OIG's waiver until October 2012 (DSUF ¶ 6; PSGI ¶ 6), it would have made no difference whether the MED was amended. Either way, Plaintiff's Medicare reimbursement claims would still be denied. See 42 C.F.R. §§ 424.505, 424.535.

Plaintiff also points to another memorandum from Defendant CMS dated June 29, 2011 generally stating that Defendant CMS had become aware that problems were occurring in implementing "the prohibition against making payments for items or services furnished by an excluded provider or entity or for a prescription written by an excluded provider." Dkt. #50 (Ferrucci Decl.) ¶ 2, Ex. A at 1. The solution that Defendant CMS suggests in the memorandum is that it "will send Medicare Exclusion Database (MED) files to plan sponsors each month." Id. The memorandum also states that "[i]n addition to the MED, [Defendant] CMS will also provide information regarding OIG-granted waivers to exclusions and immediate or retroactive reinstatements. . . . as we become aware of it." Id. at 2 (emphasis added).

Even if this procedure applied in Plaintiff's case, it is unclear whether Defendant CMS failed to adhere to it, or why it is relevant to Defendant CMS' allegedly inaccurate maintenance of the MED. What is relevant here is whether Defendant CMS failed to maintain the MED, not whether Defendant CMS failed to adhere to some other internal procedure. Furthermore, it is clear from the face of the memorandum that this procedure was only to supplement updates to the MED. In other words, the memorandum says nothing about Defendant CMS' maintenance of the MED and does not raise a genuine issue of material fact with respect to Defendant CMS' intentionally or willfully inaccurate maintenance of the MED.

Finally, Plaintiff argues that Defendant CMS' intent to harm Plaintiff can be inferred from its history with Plaintiff, including an alleged failure to comply with Plaintiff's due process rights. See Pl.'s Opp'n to Mot. for Summ. J. 4:18-22. However, most of these statements pertain to Plaintiff and his Counsel's interactions with Defendant Palmetto GBA, LLC,6 not with Defendant CMS. The only statement regarding Plaintiff or his Counsel's interactions with Defendant CMS took place in October 2012. See Dkt. #50 (Ferrucci Decl.) ¶ 7, Ex. D-E. Yet it is undisputed that Defendant CMS only recognized OIG's waiver that very month, hardly raising any inference of intent or willfulness. DSUF ¶ 6; PSGI ¶ 6.

In sum, Plaintiff has not presented any evidence showing that Defendants failed to update the MED without grounds for believing it to be lawful or otherwise flagrantly disregarded his rights under the Privacy Act. Such is required to state an accuracy claim under the Privacy Act. See Covert, 876 F.2d at 757. Therefore, the Court finds that Plaintiff has failed to show that Defendants intentionally or willfully acted in violation of their record keeping obligations. For this reason alone, the Court GRANTS Defendants' Motion for Summary Judgment.

ii. Evidence of Damages

Assuming, arguendo, that Plaintiff had presented evidence creating a genuine issue that Defendants acted intentionally and willfully, Plaintiffs still must show the other elements for a Privacy Act claim. The Court finds, however, that Plaintiff fails to present evidence of actual damages.

Contrary to Plaintiff's contentions (Pl.'s Opp'n to Mot. for Summ. J. 10:1-5), it is clear that Plaintiff must show actual damages to sustain his Privacy Act claim. Doe v. Chao, 540 U.S. 614, 620, 623 (2004) (holding that the "minimum guarantee" in 5 U.S.C. § 552a(g)(4)(A) "goes only to victims who prove actual damages"); see also Beaven v. U.S. Dep't Justice, 622 F.3d 540, 557-59 (6th Cir. 2010) (applying Chao); Van Alstyne v. Elec. Scriptorium, Ltd., 560 F.3d 199, 203, 206 (4th Cir. 2009) (applying Chao and applying its reasoning to 18 U.S.C. § 2707 to require proof of actual damages); Rouse, 567 F.3d at 417; Stafford v. Social Sec. Admin., 437 F.Supp.2d 1113, 1117 (N.D. Cal. 2008). To the extent that Plaintiff intends to solely seek statutory damages, that route is squarely foreclosed by Chao.

Defendants contend that Plaintiff cannot present any evidence that he was damaged by the MED because it was amended to reflect his partial waiver on February 9, 2012. Def.'s Mot. for Summ. J. 8:20-23. Plaintiff counters that there is a genuine dispute as to whether Defendant CMS actually updated the MED on that date because some HMOs denied some of Plaintiff's claims in October 2012. Pl.'s Opp'n to Mot. for Summ. J. 3:16-27. Defendants aver, however, that Plaintiff's Medicare privileges were only restored in or about November 2012 and that it is immaterial that some of Plaintiff's claims were denied in October 2012. Def.'s Reply for Mot. Summ. J. 5:24-25.

In support of his contentions, Plaintiff presents letters, dating from July 20, 2011, to December 17, 2013, from various health plans generally denying claims for drug prescriptions or medical services prescribed, administered, or ordered by Plaintiff. See Patwardhan Decl. ¶ 5, Ex. C, E.

It is undisputed that Defendant CMS revoked Plaintiff's Medicare billing privileges on May 8, 2009. DSUF ¶ 3; PSGI ¶ 3. Moreover, it is undisputed that the OIG excluded Plaintiff from participation in all federal health programs in 2011 but also granted a partial waiver of that exclusion. DSUF ¶¶ 4-5; PSGI ¶¶ 4-5. It is also undisputed that Defendant CMS recognized OIG's partial waiver and reactivated Plaintiff's Medicare billing privileges for covered services within the limited scope of OIG's partial waiver in October 2012. DSUF ¶ 6; PSGI ¶ 6. In other words, any letters Plaintiff or his patients received denying coverage for services rendered prior to October 2012 are irrelevant because Defendant CMS had not yet recognized OIG's waiver at that time. DSUF ¶ 6; PSGI ¶ 6. In that period, there was no inaccuracy in the MED that could cause harm to Plaintiff as Plaintiff could not be reimbursed under Medicare.

Defendants present testimony from Ms. Vogel clearly indicating that the MED was updated to reflect OIG's waiver on February 9, 2012. See Dkt. #41-15 (Vogel Decl.) ¶ 5, Ex. A; Dkt. #54-8 (Suppl. Vogel Decl.) ¶¶ 4-5, Ex. B. Ms. Vogel's testimony, in other words, shows that the MED was amended even prior to Defendant CMS' reactivation of Plaintiff's Medicare billing privileges in October 2012.

With respect to the letters denying coverage for services rendered after October 2012, however, the inference could be drawn that, despite the MED's amendment, medical plans continued to deny Plaintiff's claims. Yet none of these letters indicate that there was an inaccuracy in the MED — and none of these letters indicate that Plaintiff was actually harmed by the denials, particularly when Defendants present evidence showing many of these denials were rectified. See Dkt. ##54-1, 54-2, 54-3. More importantly, Plaintiff fails to show that these denials were for services within his partial waiver. In short, these letters fail to present a genuine issue as to inaccuracies in the MED.

Drawing all inferences in Plaintiff's favor, Plaintiff's showing possibly raises an issue as to whether the MED was actually amended. However, Plaintiff's showing still fails to raise an issue as to actual damages.

Plaintiff avers that he has presented evidence of damages in the form of his profit and loss statements from years 2006 to 2012. See Pl.'s Opp'n to Mot. for Summ. J. 6:12-20. While it is clear that Plaintiff's 2009 revenue is greater than his 2012 revenue (see Patwardhan Decl. ¶¶ 8-9, Ex. F), it is also true that Plaintiff's billing privileges were revoked on May 8, 2009 and only reinstated in October 2012 (see DSUF ¶ 6; PSGI ¶ 6). In short, pointing to these financial statements makes much ado about nothing. Speculating based on annual figures does nothing to show actual damages when Plaintiff had Medicare billing privileges for unequal portions of both years and had two intervening years between the compared years. Plaintiff must do something more than engage in wild speculation to show that he was actually injured by an inaccurate MED.

To remedy this, Plaintiff purports to offer the expert testimony of Mr. Edelston and requests that this Court defer ruling on the instant Motion until his expert can provide his report. See Pl.'s Opp'n to Mot. for Summ. J. 7:1-16. Defendants vehemently object on the basis that Plaintiff does not meet the requirements for Fed. R. Civ. P. 56(d). Reply for Mot. for Summ. J. 7:5-10:10.

Under Fed. R. Civ. P. 56(d), a "district court has discretion to continue a motion for summary judgment if the opposing party needs to discover essential facts." California Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990) (citing Fed. R. Civ. P. 56(f); Garrett v. City & Cnty of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987)). "To prevail under this Rule, parties opposing a motion for summary judgment must make `(a) a timely application which (b) specifically identifies (c) relevant information (d) where there is some basis for believing that the information sought actually exists.'" Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (quoting Emp'r Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129-30 (9th Cir. 2004)). "The burden is on the party seeking additional discovery to proffer sufficient facts to show that the evidence sought exists, and that it would prevent summary judgment." Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001). Finally, "the district court does not abuse its discretion by denying further discovery if the movant has failed diligently to pursue discovery in the past." California Union Ins., 914 F.2d at 1278; see also Qualls v. Blue Cross, 22 F.3d 839, 844 (9th Cir. 1994).

In this case, the Court first finds that Plaintiff has not acted diligently in seeking this discovery. Plaintiff did not approach Mr. Edelston until November 11, 2013 (Dkt. #52 (Edelston Decl.) ¶ 5), over a month after the original discovery cutoff (see Dkt. #15), and two months after stipulating to extend the expert discovery cutoff (see Dkt. #27).

Plaintiff's expert disclosures dated December 16, 2013 are incomplete, simply naming and providing the addresses of Mr. Edelston and Mr. Kaplan. Dkt. #54-7. As trial in this case is set for April 8, 2014 (see Dkt. #28), Plaintiff was obligated to provide his complete expert disclosures, including a written report, by January 8, 2014. See Fed. R. Civ. P. 26(a)(2). It is clear that Plaintiff has not met his obligations, as Mr. Edelston states that he was not able to commence work on an expert report for this matter "until after January 15, 2014," after the expert discovery cutoff. Dkt. #52 (Edelston Decl.) ¶ 6. Without a stipulation or Court order, Plaintiff was obligated to include Mr. Edelston's expert report with his expert discovery disclosures. Fed. R. Civ. P. 26(a)(2). A plaintiff's failure to timely provide his expert disclosures has been found to be neither substantially justified nor diligent. See Wong v. Regents of Univ. of California, 410 F.3d 1052, 1062 (9th Cir. 2004). Such is also the case here as Plaintiff inordinately delayed producing an expert report until long after the discovery and expert cutoff dates. See Dkt. ##28, 37.

Moreover, it is clear that Plaintiff's failure to produce an expert report is not harmless. Plaintiff presented Mr. Edelston's declaration just three days before the rebuttal expert cutoff date (see Dkt. #28). Even assuming that Mr. Edelston was prepared to present his report on that day, it is unlikely, and highly implausible, that Defendants could adequately prepare for Mr. Edelston's report in this short period of time. Allowing Plaintiff to now present this evidence would cause a flagrant "[d]isruption to the schedule of the court" in a manner that is not harmless. Wong, 410 F.3d at 1062.

Even more troubling is Plaintiff's additional request to produce expert discovery in the form of Mr. Kaplan's expert testimony. See Opp'n to Mot. for Summ. J. 9:21-22. Plaintiff has failed to disclose anything with respect to Mr. Kaplan outside his name and address — much less what opinions Mr. Kaplan is likely to express, how he will reach those opinions, or, more importantly, how those findings affect summary judgment. Plaintiff simply states that Mr. Kaplan will rely on Mr. Edelston's findings and opinions to prepare his testimony. See id. In short, just as the Court finds Plaintiff's disclosure of Mr. Edelston to be untimely, unjustified, and not harmless, the Court, a fortiori, so finds Plaintiff's disclosure of Mr. Kaplan.

Because Plaintiff was not diligent in seeking this discovery, his delay in seeking this discovery was not substantially justified, and because his failure to produce this discovery is not harmless, the Court declines to grant Plaintiff's Fed. R. Civ. P. 56(d) request.

Consequently, the Court finds that Plaintiff cannot present any evidence showing that he has suffered actual damages. Thus, the Court finds that there is no genuine issue of material fact on this issue. Accordingly, because Plaintiff is unable to show actual damages as the result of an inaccuracy in the MED, Defendants are entitled to judgment as a matter of law. For this reason, as well as the fact that there is no genuine issue that Defendants did not act intentionally or willfully, the Court GRANTS Defendants' Motion for Summary Judgment.

iii. Conclusion

Because the Court finds that Plaintiff cannot present a genuine issue of material fact for two required elements of his Privacy Act claim — namely that Defendant CMS intentionally and willfully failed to accurately maintain the MED and that as a result Plaintiff suffered actual damages — the Court finds that Defendant CMS is also entitled to summary judgment.

3. Evidentiary Objections

The Court need not rule on any evidentiary objections beyond the those already ruled upon as a basis for reaching the Court's conclusions as it did not rely on that evidence in granting summary judgment. Accordingly, the Court deems as MOOT the Parties' remaining evidentiary objections.

IV. Conclusion

For the foregoing reasons, the Court hereby GRANTS Defendants' Motion for Summary Judgment [41] and DENIES Plaintiff's Motion for Leave to File a First Amended Complaint [43]. Further, the Stipulation to Continue [64] is DENIED AS MOOT.

IT IS SO ORDERED.