OPINION

RENÉE MARIE BUMB, District Judge.

This medical malpractice suit arises out of the tragic stillbirth of Plaintiffs' baby. "Plaintiffs [Delores Troilo and Korey Sloan] allege that the Defendants' violation of the applicable standard of care resulted in the failure to properly diagnose [Delores] with intrauterine growth restriction and to deliver Plaintiffs' baby in a timely manner to avoid stillbirth." (Opposition brief to the United States' Motion for Summary Judgment, Docket #60, p. 1).

Troilo received most of her prenatal care at a clinic owned by Complete Care Health Network. Complete Care is federally-funded. Earlier in this case, the United States was substituted for Defendant Complete Care and its two nurses, Defendants Mary Herron and Cathy Geria. It is undisputed that the provisions of the Federal Tort Claims Act govern the claims asserted against these Defendants.1

Before the Court are two Motions filed by the United States: (1) a Motion to Amend its Answer to include defenses pursuant to the New Jersey Charitable Immunity Act ("NJCIA"), specifically N.J.S.A. 2A:53A-7 and -8; and (2) a Motion for Summary Judgment on those same defenses.2

Plaintiffs oppose the Motion to Amend, and alternatively request leave to take discovery concerning Complete Care's charity status. Similarly, in opposition to the United States' Motion for Summary Judgment, Plaintiffs reassert their request for discovery.

For the reasons stated herein, the Court will grant the United States' Motion to Amend its Answer, and will permit limited discovery concerning Complete Care's status as a charity. The Motion for Summary Judgment will be administratively terminated pending completion of discovery.

I. Background and Procedural History

As stated above, this is a medical malpractice negligence action. The complaint was originally filed in January, 2012, in Cape May County Superior Court, against all of the above-captioned non-diverse Defendants. At the time the suit was filed, Plaintiffs' attorney was not aware that Complete Care was a federally-funded facility.

In March, 2013, the United States entered an appearance on behalf of Complete Care, and Nurses Herron and Geria, and removed the suit to this Court pursuant to the Federal Tort Claims Act's removal provision, 28 U.S.C. § 2679(d).3

The case then proceeded. Magistrate Judge Donio entered the Scheduling Order at issue, setting May 30, 2014 as the deadline for Amended Pleadings.

Not long thereafter, Senior United States District Judge Irenas denied the United States' Motion to Dismiss.4

On May 6, 2014, the United States filed its Answer. While the pleading included various generic statements of defenses— including an assertion that "defendant . . . has, or may have, additional affirmative defenses that are not known to defendant at this time" (eighth defense)— the Answer did not include any defense specifically based on the NJCIA.

Approximately 10 months after the amended pleading deadline— and also, notably after the January 30, 2015 deadline for fact discovery (Docket #33)5— the New Jersey Supreme Court decided Kuchera v. Jersey Shore Family Health Center, 221 N.J. 239 (2015). In that case the issues before the Court are the same issues raised here by the United States: "whether [under the NJCIA] the health care facility is entitled to charitable immunity . . ., or the limited liability afforded to nonprofit entities organized exclusively for hospital purposes." Kuchera, 221 N.J. at 241. The United States interprets this decision as expanding the scope of the damages cap provision of the NJCIA.6

According to the United States, "[a]s soon as the Kuchera decision issued, the Department of Justice revisited its prior analysis of the applicability of the NJCIA to federally qualified health centers in New Jersey," (Moving Brief, Docket #51, p. 14). Approximately five weeks later, the United States stated in a brief filed with the Court that, "the Government intends to argue in a future dispositive motion that it is shielded from liability by the New Jersey Charitable Immunity Statute." (Docket #42, p. 19 n.4)

Thereafter, the United States reaffirmed its intentions with regard to its NJCIA defenses in correspondence with Plaintiffs' counsel (see Bober Decl. ¶¶ 2,4,5 and Ex. A & B); and then filed the instant Motion to Amend on September 14, 2015.

The United States timely filed the instant summary judgment motion four days later.

II. Legal Standard

A. Motion to Amend Answer

(1) Fed. R. Civ. P. 16

A party seeking to amend a pleading after the deadline set by the applicable scheduling order must demonstrate "good cause" for modifying the order. Fed. R. Civ. P. 16(b)(4). Good cause may be based upon a "showing that the delay `stemmed from any mistake, excusable neglect, or any other factor which might understandably account for failure of counsel to undertake to comply with the Scheduling Order.'" Merrell v. Weeks Marine, Inc., 2013 U.S. Dist. LEXIS 107170 at *10 (D.N.J. July 31, 2013) (quoting Fermin v. Toyota Material Handling, USA, Inc., No. 10-3722, 2012 U.S. Dist. LEXIS 56422 (D.N.J. April 23, 2012)).

(2) Fed. R. Civ. P. 15

At this stage of the proceedings, "a party may amend its pleading only . . . with the court's leave. The Court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Leave to amend may be denied upon a finding of: (1) undue delay; (2) undue prejudice to the non-moving party; (3) bad faith or dilatory motive; or (4) futility of amendment. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).

B. Motion for Summary Judgment

Federal Rule of Civil Procedure 56(d) provides, "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order."

III. Analysis

A. Motion to Amend Answer

(1) Rule 16 analysis

The United States' reason for seeking to belatedly amend its Answer is stated clearly and succinctly: "the basis for the amendment is new case law." (Moving Brief, Docket #51, p. 15)

Plaintiffs counter, however, that while Kuchera was indisputably decided after the relevant deadlines, Kuchera did not change the law at all with respect to the key question: whether defenses under the NJCIA were available to the United States when it filed its Answer.7 The answer to this question can only be "yes," the defenses were available; the United States itself cites a 2011 Third Circuit case for the proposition that "[the] United States `is entitled to the protection of the immunity the NJCIA provides.'" (Docket #42, p. 19, n.4)(citing Lomando v. United States, 667 F.3d 363, 369-70 (3d Cir. 2011))(see also Docket #51, p. 10-11).

Thus, the Court rejects the United States' "new case law" argument. New case law is not tantamount to a change in the law. Kuchera did not make available a new defense that was previously unavailable.

Nonetheless, nothing before the Court suggests that the United States' failure to plead its NJCIA defenses was the result of anything other than a mistake or excusable neglect. Mistake and excusable neglect do establish good cause to depart from the deadline set in the Scheduling Order. Merrell, 2013 U.S. Dist. LEXIS at *10. Therefore, the Court holds that the United States has satisfied the requirements of Rule 16(b)(4).

(2) Rule 15 Analysis

Additionally, the Court holds that justice requires granting the United States' leave to amend. Plaintiffs do not assert any reason why leave to amend would not be appropriate under Rule 15 standards. Indeed, Plaintiffs will not be prejudiced by the amendment because the Court will grant them leave to conduct discovery related to the newly-added NJCIA defenses.

(3) The United States' Subject Matter Jurisdiction Argument

Although the United States' moving brief cites and applies the Rule 15 and 16 standards to argue that it should be granted leave to amend, it also argues that it should be granted leave to amend because one of the two defenses it seeks to add— the absolute immunity defense, N.J.S.A. 2A:53A-7— is a subject matter jurisdiction defense, which the United States contends, may be raised at any time.

The United States' reasoning is this: the Federal Tort Claims Act functions as a limited waiver of the United States' sovereign immunity to suit. To the extent that the FTCA carves out from that waiver all immunities to suit that would be available to it under state law, see 28 U.S.C. § 2674, it has preserved its sovereign immunity and therefore this Court lacks subject matter jurisdiction. (See United States' Summary Judgment Moving Brief, Docket #53-1, p. 36-39)

Thus, in this case, if the Court were to hold the United States absolutely immune from suit under the NJCIA, the Court simultaneously would be holding that the United States has not waived its sovereign immunity, and therefore the Court lacks subject matter jurisdiction.

The Court need not decide the issue, however, because it only pertains to the absolute immunity defense provided by N.J.S.A. 2A:53A-7, not the limited liability/damages cap defense provided by N.J.S.A. 2A:53A-8. Simply put, even if the United States prevailed on its subject matter jurisdiction argument, it would only get half of the relief it seeks in its Motion to Amend.8

The Court has already held, with regard to both defenses, that the United States has satisfied the requirements of Rules 16 and 15. Thus, the Court need not rule on the United States' alternate argument that leave to amend should be granted because its NJCIA absolute immunity defense is, in the context of this FTCA action, a subject matter jurisdiction defense.

B. Motion for Summary Judgment

As stated previously, the United States moves for summary Judgment, asserting three arguments: (1) absolute immunity pursuant to N.J.S.A. 2A:53A-7; (2) limited liability pursuant to N.J.S.A. 2A:53A-8; and (3) Plaintiffs cannot establish proximate causation.

Plaintiffs oppose the motion, asserting that they need discovery concerning Complete Care's status under the NJCIA. Alternatively, they argue that only "partial immunity" (i.e., limited liability) applies, and that they have put forth evidence establishing proximate causation.

While Plaintiffs have not filed the affidavit or declaration required by Fed. R. Civ. P. 56(d), Plaintiffs' counsel has stated, in her opposition brief, the following:

(Summary Judgment Opposition Brief, Docket #60, p. 11)

Plaintiffs contend they require this information because, they assert, the relevant legal inquiry is Complete Care's "`aims, [] origins, and [] method of operation,'" not simply Complete Care's tax-exempt or non-profit status. (Plaintiffs' Summary Judgment Opposition Brief, Docket # 60, p. 7, quoting Klein v. Bristol Glen, Inc., 2010 WL 3075582 (App. Div. Aug. 4, 2010)); see also Kuchera, 221 N.J. at 253 ("[w]hether a nonprofit entity, whose certificate of incorporation and by-laws provide that it is organized exclusively for charitable, religious, educational, or hospital purposes, actually conducts its affairs consistent with its stated purpose often requires a fact-sensitive inquiry.").

The United States, in response, states, "the Government is willing to consent to additional discovery that is narrowly tailored to the charitable-immunity issue for the time period in question [December 2010 through June 2011]." It also asserts that it has produced at least some of the information Plaintiffs request, in the form of declarations, Articles of Incorporation, Bylaws, audited financial statements, and annual reports for the years 2010 and 2011. (See United States' Reply Brief, Docket #61, p. 5-6, n.1).

In light of the parties' positions, the Court will defer considering the United States' Motion for Summary Judgment, and will order Plaintiffs to file the requisite Rule 56(d) affidavit or declaration. Plaintiffs shall specify in their Rule 56(d) submission why they need the information sought— particularly for the years prior to 2010, and why the discovery already produced by the United States is insufficient.

IV.

For the above-stated reasons, the United States' Motion to Amend its Answer will be granted. The United States' Motion for Summary Judgment will be administratively terminated pending limited discovery related to Complete Care's charity status under the NJCIA. The Court shall determine the scope of that discovery after Plaintiffs file their Rule 56(d) affidavit or declaration. An appropriate order accompanies this opinion.