Gubanov v. Stanislaus County et al, No. 2:2014cv01731 - Document 23 (E.D. Cal. 2015)
Court Description: ORDER granting 16 Motion to Dismiss signed by Judge John A. Mendez on 12/11/15. (Kaminski, H)
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Gubanov v. Stanislaus County et al Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 Evgeniy Gubanov, 12 2:14-cv-01731-JAM-EFB Plaintiff, 13 14 No. v. ORDER GRANTING DEFENDANT CORRECT CARE’S MOTION TO DISMISS Stanislaus County, et al, 15 Defendants. 16 This matter is before the Court on Defendant Correct Care 17 18 Solutions, LLC’s (“Correct Care”) motion to dismiss (Doc. #16). 1 19 Plaintiff Evgeniy Gubanov (“Plaintiff”) opposes the motion (Doc. 20 #18). 21 I. 22 FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND In November 2012, Plaintiff severely fractured his ankle. 23 24 First Amended Complaint (“FAC”) ¶ 3 (Doc. #13). Orthopedic 25 surgeon Stephen Berrien operated on Plaintiff’s ankle and put 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for November 18, 2015. 1 Dockets.Justia.com 1 Plaintiff’s ankle in a solid white cast. 2 was told that he could not put weight on his ankle and that he 3 needed crutches to walk. 4 Id. ¶ 21. Plaintiff Id. Two months after he fractured his ankle, Plaintiff was 5 arrested and taken to Stanislaus County Jail. Id. at ¶ 2. 6 Plaintiff alleges that when he was arrested, he was wearing an 7 ankle cast and could not put any weight on his ankle. 8 ¶ 22. 9 cast was removed and replaced with a plastic cast. Id. at Police officers took Plaintiff to a hospital, where his Id. 10 Plaintiff alleges that he was taken back to the jail and not 11 given crutches or a wheelchair. 12 Plaintiff’s arrest, jail staff took him to Correct Care, the 13 medical provider located in the jail. 14 that Correct Care’s staff removed his plastic cast. 15 Plaintiff alleges that due to his cast being removed, he had to 16 walk on his unhealed ankle to shower, use the bathroom, and walk 17 up the stairs to make his court appearances. 18 alleges that walking on his unhealed ankle caused “extreme pain” 19 and “unnecessary re-injury and trauma to his ankle.” 20 Id. ¶ 23. Id. Three days after Plaintiff alleges Id. Id. Plaintiff Id. ¶ 24. About a month after Plaintiff was arrested, jail staff took 21 him to see Dr. Berrien. 22 Plaintiff that he needed surgery on his ankle as soon as 23 possible. 24 Id. 25 (allegedly an employee of Correct Care) told him that he had 26 cancelled Plaintiff’s surgery with Dr. Berrien because, in Dr. 27 Gustaveson’s opinion, “the ankle was too badly damaged to be 28 repaired and therefore the proposed surgery was worthless.” Id. Id. ¶ 26. Dr. Berrien allegedly told Dr. Berrien scheduled the surgery for mid-March. Plaintiff alleges that on March 7, 2013, Dr. Gustaveson 2 Id. 1 Plaintiff also alleges that Dr. Gustaveson informed him that he 2 would be “crippled for the rest of his life.” 3 information allegedly caused Plaintiff severe emotional 4 distress. 5 Id. This Id. A few months later, Plaintiff met with Dr. Berrien again, 6 and Dr. Berrien told him that he needed reconstructive surgery. 7 Id. ¶ 33. 8 Plaintiff’s ankle. 9 [Plaintiff] sustained to the ankle due to denial of care and On June 20, 2013, Dr. Berrien performed surgery on Id. Plaintiff alleges that “the damage 10 forced walking on the fractured, healing ankle diminished his 11 chances for a successful outcome from the second surgery.” 12 Plaintiff alleges that his ankle may need amputation in the 13 future. 14 Id. Id. On July 22, 2014, Plaintiff sued Stanislaus County and 15 Sheriff Adam Christianson (Doc. #1). 16 Court granted Plaintiff leave to amend his complaint (Doc. #10). 17 Plaintiff did not file his amended complaint before the Court 18 issued its scheduling order on December 3, 2014 (Doc. #12). 19 scheduling order, in relevant part, states the following: 20 21 On November 11, 2014, this SERVICE OF PROCESS All parties defendant to this lawsuit have been 22 served and no further service will be permitted except 23 with leave of court, good cause having been shown. 24 25 JOINDER OF ADDITIONAL PARTIES/AMENDMENTS No further joinder of parties or amendments to 26 pleadings is permitted except with leave of court, 27 good cause having been shown. 28 . . . 3 The 1 FICTITIOUSLY-NAMED DEFENDANTS 2 This action, including any counterclaims, cross- 3 claims, and third party complaints is hereby DISMISSED 4 as to all DOE or other fictitiously-named defendants. 5 . . . 6 OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER 7 This Status Order will become final without 8 further Order of Court unless objection is lodged 9 within seven (7) days of the date of the filing of 10 11 12 this Order. Order at 1, 2, 6. On February 12, 2015, Plaintiff filed his FAC. On October 13 14, 2015, Correct Care moved to dismiss Plaintiff’s claims 14 against Correct Care, arguing that Plaintiff’s claims are barred 15 by the Court’s scheduling order and the statute of limitations. 16 Plaintiff opposed the motion and moved for leave to amend in the 17 same document (Doc. #18). 18 19 20 II. A. 21 22 OPINION Analysis 1. Correct Care’s Motion to Dismiss “A scheduling order is not a frivolous piece of paper, idly 23 entered, which can be cavalierly disregarded by counsel without 24 peril.” 25 (9th Cir. 1992) (internal quotation marks omitted). 26 court has the discretion to determine whether a scheduling order 27 precludes amendments or joinder of parties after the deadline 28 indicated by the scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 4 Id. at 607. A district Once the 1 deadline set forth by the scheduling order to file an amendment 2 or join additional parties has passed, the liberal Federal Rule 3 of Civil Procedure 15 standard for amending a complaint no 4 longer applies. 5 control. 6 Id. at 607-608. Instead, Rule 16’s standards Id. Rule 16 requires the Court to enter a scheduling order that 7 limits the time to join other parties and to amend the 8 pleadings. 9 only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b). “A schedule may be modified Id. The 10 Ninth Circuit “has indicated that a party seeking to amend a 11 pleading after the scheduling order deadline has expired should 12 first seek leave to amend the scheduling order.” 13 Stobie, 2010 WL 5110083, at *3 (D. Idaho Dec. 7, 2010). 14 Mays v. Here, the Court granted Plaintiff leave to amend his 15 complaint on November 21, 2014 (Doc. #10). 16 the Court issued a scheduling order which indicated that no 17 party could amend their pleadings or join any additional parties 18 without leave of the Court (Doc. #12). 19 any of the defendants objected to the scheduling order, and the 20 order became final on December 10, 2014 (Doc. #12). 21 On December 3, 2014, Neither Plaintiff nor On February 12, 2015, Plaintiff filed the FAC (Doc. #13). 22 The FAC added Correct Care as a defendant. FAC ¶ 13. Plaintiff 23 did not seek permission from the Court either to file an amended 24 complaint after the scheduling order had been issued or to join 25 any additional parties. 26 Holman, Negeley, Nichols, Campbell, Clifton, and Duncan filed an 27 answer to Plaintiff’s FAC (Doc. #15). 28 in the other defendants’ answer or file its own answer. Defendants Christianson, Maxwell, 5 Correct Care did not join See 1 2 Answer at 1. Plaintiff’s attempted joinder of Correct Care violated the 3 Court’s scheduling order. 4 Plaintiff’s claims against Correct Care. 5 however, to dismiss the FAC in its entirety, as Correct Care 6 requested in its motion to dismiss. 7 answering defendants did not raise the issue of Plaintiff’s 8 noncompliance with the Court’s scheduling order nor join in 9 Correct Care’s motion to dismiss herein. 10 The Court therefore dismisses The Court declines, See Mot. at 2. The 2. Plaintiff’s Motion for Leave to Amend 11 Together with Plaintiff’s opposition to Correct Care’s 12 motion to dismiss, Plaintiff brought a motion for leave to amend 13 the FAC to join Correct Care. 14 when a motion for leave to join a party is filed after the 15 scheduling order deadline, the party seeking to join the new 16 party must show “good cause.” 17 good cause standard under Rule 16 “primarily considers the 18 diligence of the party seeking the amendment.” 19 F.2d at 609. 20 joinder of additional parties must show that scheduling 21 deadlines could not be met despite the party’s diligence. 22 The possibility of “prejudice to the party opposing modification 23 might supply additional reasons to deny [modification], 24 [however], the focus of the inquiry is upon the moving party’s 25 reasons for seeking modification.” Opp. at 6-8. As discussed above, Fed. R. Civ. P. 16(b)(4). The Johnson, 975 To show good cause, the party seeking amendment or Id. Id. 26 In Plaintiff’s motion for leave to amend, he states that 27 Plaintiff’s attorney, Larry Peluso, “read and understood” the 28 Court’s December 3, 2014 scheduling order and began writing the 6 1 FAC. 2 would become final seven days after the date of the order. 3 Order at 6. 4 amendments or joinder of parties without leave of the Court. 5 Id. at 1. 6 have either objected to the dates in the scheduling order or 7 asked the Court for leave to file an amended complaint and join 8 an additional party. He did neither. Instead, Mr. Peluso ignored 9 the terms of the scheduling order that he had “read and 10 11 Opp. at 8. The scheduling order clearly indicated that it The scheduling order also disallowed any additional After reading the scheduling order, Mr. Peluso should understood” and began drafting the FAC. See Opp. at 8. Mr. Peluso collapsed from liver failure two weeks after 12 reading the scheduling order. 13 Julia Swanson, completed the FAC for Mr. Peluso. 14 Court is sympathetic to Mr. Peluso’s health issue, it does not 15 excuse Plaintiff from requesting leave to amend or a change in 16 the scheduling order before filing the amended complaint. 17 attorney working on the case, Ms. Swanson had the duty to read 18 the Court’s scheduling order and comply with it, even if she was 19 not working on the case when the scheduling order was issued. 20 Fed. R. Civ. P. 16(f); see also Balt. Therapeutic Equip. Co. v. 21 Loredan Biomedical, Inc., 1993 WL 129781, at *17 (E.D. Cal. Feb. 22 19, 1993) (“[A] party’s attorney” has the “[d]uty to obey the 23 Court’s scheduling orders.”). At no time prior to filing the FAC 24 or Plaintiff’s opposition to this Motion to Dismiss did Ms. 25 Swanson ask the Court for leave to amend the complaint or to 26 join an additional party. 27 28 Id. Mr. Peluso’s law partner, Id. While the As an The Court finds that neither of Plaintiff’s attorneys acted diligently, and Plaintiff fails to show good cause for leave to 7 1 amend to join Correct Care. 2 amend is denied. 3 As such, Plaintiff’s motion to The parties also dispute whether Plaintiff’s claims against 4 Correct Care are barred by statutes of limitations. 5 Plaintiff’s claims against Correct Care are dismissed for the 6 reasons stated above, the Court need not reach the statute of 7 limitations issue. Because 8 9 10 III. ORDER For the reasons set forth above, the Court GRANTS WITH 11 PREJUDICE Correct Care’s motion to dismiss and DENIES 12 Plaintiff’s motion for leave to amend: 13 14 IT IS SO ORDERED. Dated: December 11, 2015 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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