Opinion
No. CV-06-701-PHX-DGC.
April 23, 2007
ORDER
Pending before the Court is Defendants' motion for leave to file a second amended answer pursuant to Rule 15 of the Federal Rules of Civil Procedure. Dkt. #71. Plaintiffs have filed a response to the motion and Defendants have filed a reply. Dkt. ##82, 95. As explained below, the Court will deny the motion.
I. Background.
Plaintiffs' son committed suicide in July 2005 while detained at the Navajo County Jail. Plaintiffs subsequently filed a notice of claim pursuant to A.R.S. § 12-821.01. Plaintiffs demanded 20 million dollars as compensation for the loss of their son.
Plaintiff commenced this action by filing a complaint against Defendants in state court on February 17, 2006. The complaint asserts state law negligence claims and civil rights claims under 42 U.S.C. § 1983. After removing the action to this Court, Defendants filed an answer to the complaint on July 25, 2006. Dkt. ##1, 13.
II. Analysis.
The Case Management Order filed on October 4, 2006, contains the following paragraph:
2. Deadline for Joining Parties and Amending Pleadings. The deadline for joining parties and amending pleadings is 90 days from the date of this Order.
Dkt. #25 ¶ 2 (emphasis in original). The deadline for filing motions to amend was therefore January 2, 2007.
Defendants' motion to amend was filed on March 29, 2007, nearly three months after the amendment deadline. Defendants' motion never mentions the deadline or the fact that the motion is untimely. Defendants' reply, filed after Plaintiffs have emphasized the deadline, states that "Plaintiffs' concern over the `deadline' issue is akin to a claim for delay[.]" Dkt. #95 at 3. Defendants cite DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1983), for the proposition that "`delay, by itself, is insufficient to justify denial of leave to amend.'" Id.
Defendants' reliance on DCD Programs is misplaced. DCD Programs involved the application of Rule 15(a)'s liberal amendment standard. That is not the standard to be applied in resolving this motion. Defendants' motion to amend was filed after the deadline set by the Court pursuant to Rule 16 of the Federal Rules of Civil Procedure. A deadline established under Rule 16 "shall not be modified except upon a showing of good cause[.]" Fed.R.Civ.P. 16(b). The "good cause" requirement under Rule 16(b) is not the same as the amendment standard under Rule 15(a). Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). "Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s `good cause' standard primarily considers the diligence of the party seeking the amendment." Id.
Defendants seek to amend their answer to assert insufficiency of notice of claim as an affirmative defense. Dkt. #71 at 3. Arizona's notice of claim statute, A.R.S. § 12-821.01, requires persons asserting claims against a public entity or employee to file a notice of claim within 180 days of the claim's accrual. A.R.S. § 12-821.01(A). The notice must contain both "a specific amount for which the claim can be settled and the facts supporting that amount." Id.
Defendants contend that at the time they filed their answer, the issue of whether Plaintiffs' notice of claim satisfied § 12-821.01(A) was controlled by Young v. City of Scottsdale, 970 P.2d 942 (Ariz.Ct.App. 1998). Dkt. #95 at 4. In Young, the Arizona Court of Appeals held that the "specific amount" requirement in § 12-821.01(A) is satisfied where the notice of claim contains a "reasonable estimate of the value of the claim." 970 P.2d at 946. The Arizona Supreme Court recently disapproved the reasonableness standard applied in Young. In Deer Valley Unified School District No. 97 v. Houser, 152 P.3d 409 (Ariz. 2007), the Supreme Court concluded that a reasonableness standard was irreconcilable with the explicit language of § 12-821.01(A) requiring a "specific amount for which the claim can be settled." Id. at 496. Defendants contend that Houser brought the insufficiency of notice of claim defense "back to life" under the fact of this case. Dkt. #95 at 4-5.
The Court disagrees. Defendants do not dispute that Plaintiffs' notice of claim contains a specific amount for which the claim can be settled — 20 million dollars. Dkt. #71 at 4. Rather, Defendants contend that the notice does not provide any facts to support this amount. Id. at 5. Defendants state that this is exactly what Houser found insufficient under § 12-821.01(A). Id. at 7. To the contrary, Houser explicitly declined to address the issue of whether the notice of claim in question provided facts supporting the amount claimed because the notice, unlike Plaintiffs' notice in this case, did not contain a specific amount. Houser, 152 P.3d at 494 n. 3.
Defendants' proposed affirmative defense was not untenable prior to Houser. The language of § 12-821.01(A) has not changed since the statute's enactment in 1994. The language is clear and unequivocal: A notice of claim "shall . . . contain a specific amount for which the claim can be settled and the facts supporting that amount." A.R.S. § 12-821.01(A) (emphasis added). Indeed, Defendants argue in their motion that the defense they seek to add comports with cases decided by Arizona courts in 1996 and earlier. Dkt. #71 at 6.
"Good cause" exists when a deadline "cannot reasonably be met despite the diligence of the parties seeking the extension." Fed.R.Civ.P. 16 Advisory Comm.'s Notes (1983 Am.); see Johnson, 975 F.2d at 609. Defendants filed their initial answer on July 25, 2006. Dkt. #13. Defendants had ample time to amend their answer to assert the proposed affirmative defense prior to the deadline of January 2, 2007. Houser did not represent the sea change Defendants suggest and Defendants therefore have not met their burden of establishing good cause.
Defendants argue that Plaintiffs will not be prejudiced by the untimely amendment. Whether or not this is true, prejudice is not the relevant inquiry. "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 [of the Rule 16 schedule]. If that party was not diligent, the inquiry should end." Johnson, 975 F.2d at 609 (citation omitted). IT IS ORDERED that Defendants' motion for leave to file second amended answer (Dkt. #71) is denied.
Defendants suggest in their reply that the Court's deadline for amendments was uncertain and may have applied only to amendments that could be filed without leave of court. Dkt. #95 at 3 n. 1. This suggestion is wrong on two counts. First, the Court's Case Management Order was entered several months after Defendants had answered the complaint (Dkt. ## 13, 25), at a time when amendment as a matter of right was no longer available under Rule 15(a). Second, the Court routinely advises parties at case management conferences that they must file motions to amend before the deadline set forth in paragraph 2 of the Case Management Order.