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Hallum v. Four Corners Ob-Gyn

United States District Court, D. New Mexico

July 9, 2019

TANYA HALLUM, Personal Representative of the Estate of Charlie Hallum, TANYA HALLUM, Individually, and JESSE HALLUM, Individually, Plaintiffs,
v.
FOUR CORNERS OB-GYN, A PROFESSIONAL LLP, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEVEN C. YARBROUGH UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on (1) Plaintiffs' Second Motion for Leave to File First Amended Complaint and Interlineate Caption (Doc. 139), filed March 1, 2019; and (2) Plaintiffs' Revised Second Motion for Leave to File First Amended Complaint and Interlineate Caption (Doc. 155), filed April 30, 2019. On April 1, 2019, pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a), United States District Judge Martha Vázquez referred this matter to me. Doc. 152. Consistent with that Order of Reference, through this Proposed Findings and Recommended Disposition (“PFRD”), I recommend that the Court (1) deny Plaintiffs' Second Motion for Leave to File First Amended Complaint and Interlineate Caption (Doc. 139) as moot and (2) deny on its merits Plaintiffs' Revised Second Motion for Leave to File First Amended Complaint and Interlineate Caption (Doc. 155).

         Background

         Plaintiffs allege that Defendants Four Corners OB-GYN (“Four Corners”) and Dr. Mareca Pallister provided Tanya Hallum with negligent prenatal care, resulting in the premature birth and death of her son, Charlie Hallum, and that they provided her with negligent medical care after her pregnancy. Plaintiffs filed suit in this Court on January 5, 2017, alleging medical malpractice (Count I), negligence- failure to publish safety protocols (Count II), wrongful death/ loss of chance of life (Count III), loss of consortium (Count IV), unfair trade practices (Count V), medical negligence (Count VI), physician battery (Count VII), negligent infliction of emotional distress (Count VIII), negligent hiring, retention, and training/ supervision of Dr. Pallister (Count IX), negligent hiring, retention, training/supervision of Nancy Rhein (Count X), and punitive damages (Count XI). Doc. 1.

         On May 8, 2017, Plaintiffs moved to file their First Amended Complaint. Doc. 46. I recommended that the Court grant the Motion in part by allowing Plaintiffs to withdraw their claim for negligent infliction of emotional distress. Doc. 130 at 3. I further recommended that the Motion be denied without prejudice as to Plaintiffs' request to add an additional defendant, Dr. Elizabeth Baca. Id. at 3-5. Judge Vázquez, the presiding judge, adopted that recommendation on June 28, 2018. Doc. 131. Plaintiffs, however, did not file an amended complaint withdrawing their claim for negligent infliction of emotional distress. On September 28, 2018, the Court granted, for lack of personal jurisdiction, Dr. Palliser's Motion to Dismiss. Doc. 132. This left Four Corners as the only remaining Defendant.

         On March 1, 2019, Plaintiffs filed a second motion for leave to file their First Amended Complaint, this time seeking to amend their Complaint to “clarify the Complaint as well as remove co-Defendant Dr. Pallister, and include a further factual predicate for the medical negligence claim.” Doc. 139 at 1. Defendant Four Corners filed a response on March 15, 2019. Doc. 142. On March 18, 2019, while the Motion to Amend was pending, the Court granted in part Defendant Four Corners' Motion for Partial Dismissal as follows: Counts I, II, III, IV, and VI remain viable as to Defendant Four Corners; Count I may be pursued only on behalf of Tanya Hallum; Counts III and IV may be pursued by Tanya and Jesse Hallum; Counts IX and X are dismissed without prejudice; and Counts V and VII are dismissed with prejudice. Doc. 143. Following that Order, Defendant Four Corners requested it be allowed to file a supplemental response to Plaintiffs' Second Motion for Leave to File First Amended Complaint. Doc. 145. Defendant Four Corners attached its proposed supplemental response to its Motion (Doc. 145-1) and the Court granted Defendant's request, accepting the supplement as filed with the Court (Doc. 149). Plaintiffs filed a reply on March 27, 2019. Doc. 150.

         At the request of the parties, the Court held a status conference on April 9, 2019. Doc. 153. During the conference, Plaintiffs requested the opportunity to propose another version of the First Amended Complaint in light of the recent Order on Defendant Four Corners' Motion to Dismiss. Id. The Court granted that request and set a supplemental briefing schedule. Id. On April 30, 2019, Plaintiffs filed their Revised Second Motion for Leave to File First Amended Complaint and Interlineate Caption (Doc. 155), making their original motion to file the First Amended Complaint (Doc. 139) moot. Defendant Four Corners filed a response on May 14, 2019 (Doc. 156), and Plaintiffs filed a reply on May 28, 2019 (Doc. 158).

         Analysis

         Under Federal Rule of Civil Procedure 15(a)(2), once the time for amending a pleading as a matter of course has expired, a party may only amend a pleading “with the opposing party's written consent, or the court's leave.” “The court should freely give leave when justice so requires.” Id. However, if the deadline established by the court for amendments has passed, the movant must also establish good cause under Rule 16(b)(4) to amend the scheduling order. Fed.R.Civ.P. 16(b)(4) (a scheduling order may be modified “only for good cause and with the judge's consent.”); see also Gorsuch Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240-41 (10th Cir. 2014). Indeed, this Court's Scheduling Order reminded the parties that

Federal Rule of Civil Procedure 16 requires that the Court set a deadline for amendment of pleadings and joinder of parties. A party seeking to amend the pleadings after the above dates must both demonstrate good cause to amend the scheduling order as required by Federal Rule of Civil 16(b) and satisfy the requirements for amendment under Federal Rule of Civil Procedure 15(a).

Doc. 31 at 2 n.1; Doc. 36 at 2 n.1 (citing Gorsuch, 771 F.3d at 1242).

         In this case, the Court entered a Scheduling Order for discovery between Plaintiffs and Defendant Four Corners on April 3, 2017 (Doc. 31), and an Amended Scheduling order, to correct a typographical error, on April 4, 2017 (Doc. 36). Those Orders provided that Plaintiffs must move to amend pleadings or add additional parties by May 16, 2017. Docs. 31, 36. In the years following the entry of the Scheduling Order, the Court, at the request of parties, has extended many case management deadlines, but it has never extended Plaintiffs' amendment deadline. See Docs. 92, 105, 123, 127, 134, 147. Accordingly, Plaintiffs had until May 16, 2017 to move to amend their Complaint without having to demonstrate good cause. Because Plaintiffs filed the present Revised Motion for Leave to File First Amended Complaint almost two years later, on April 30, 2019, they must show good cause to extend the deadline to amend their Complaint.

         The good cause standard requires the movant “to show the scheduling deadlines cannot be met despite [the movant's] diligent efforts.” Gorsuch, 771 F.3d at 1240 (quotations omitted). In this way, “Rule 16(b) does not focus on the bad faith of the movant, or the prejudice to the opposing party. Rather, it focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment.” Trujillo v. Bd. of Educ. of the Albuquerque Pub. Sch., No. CIV 02-1146 JB/LFG, 2007 WL 2296955, at *3 (D.N.M. June 5, 2007). Examples of good cause include “if a plaintiff learns new information through discovery or if the underlying law has changed.” Gorsuch, 771 F.3d at 1240. If, however, “the plaintiff knew of the underlying conduct but simply failed to raise tort claims, . . . the claims are barred.” Id.

         Plaintiffs do not specifically argue that there is good cause to extend the Scheduling Order. Rather, they assert that “discovery has not yet been undertaken” (Doc. 158 at 3), and that discovery is in its early stages (Doc. 155 at 2). However, the Court entered its Scheduling Order over two years ago. See Docs. 31, 36. Plaintiffs assert that “[n]o discovery [was] possible during the Personal Jurisdiction Motion, and the case remained on hold until the Court's remaining Order was entered in March 18, 2019” (Doc. 158 at 6). The record refutes this assertion. While the Court permitted only limited jurisdictional discovery as to Dr. Pallister, it allowed merits discovery as to the claims against Four Corners.[1]See Docs. 28, 31, 36. Thus, contrary to Plaintiffs' assertion, merits discovery as to Four Corners, the only remaining Defendant, has been ongoing since April 4, 2017. Indeed, Defendant Four Corners filed a Motion to Compel on July 28, 2017 in which it sought a Court order that required Plaintiffs to provide discovery related to Plaintiffs' complaint against Four Corners. Doc. 96. The Court held a hearing on this Motion and, on October 27, 2017, entered an Order granting it in part and denying it in part. Doc. 119. Further, on April 16, 2018, the Court extended the parties' deadline to complete discovery, but specifically ordered ‚Äúthat the deadline for defendants' expert endorsements is unchanged and will remain due sixty days after receipt of ...


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