United States District Court, D. Utah
JASON AUS, JANIS AUS, and the ESTATE of JEREMY AUS, Plaintiffs,
SALT LAKE COUNTY, JAMES WINDER, WELLCON, INC., and John and Jane Does 1-10, Defendants.
C. Wells Magistrate Judge
ORDER AND MEMORANDUM DECISION OVERRULING
PLAINTIFFS' OBJECTION AND AFFIRMING MAGISTRATE'S
N. Parrish United States District Court Judge
the court is an Objection filed by Plaintiffs Jason Aus,
Janis Aus, and the Estate of Jeremy Aus
(“Plaintiffs”) pursuant to Fed.R.Civ.P. 72(a) and
28 U.S.C. § 636(b)(1)(A). (Docket No. 30). Plaintiffs
specifically object to Magistrate Judge Brooke C. Wells'
February 1, 2017 denial of their request to add a medical
malpractice claim against Defendant Wellcon, Inc. After
reviewing the Objection and County
Defendants' Response, the court concludes that oral
argument would not materially advance the resolution of this
matter. See DUCivR 7-1(f). The court also concludes
that the Objection must be overruled and the Magistrate's
Order must be affirmed. Nevertheless, the court alters the
Scheduling Order as explained below.
Objection arises in the context of a civil rights action
under 42 U.S.C. § 1983. Plaintiffs filed their original
complaint on April 4, 2016, alleging that County
Defendants' failure to provide adequate medical care to
Jeremy Aus while he was incarcerated led to his death.
(Docket No. 2). A scheduling order was entered on August 2,
2016 and amended on November 17, 2016. (Docket Nos. 16, 20).
The amended scheduling order listed the close of fact
discovery as February 14, 2017 and the last day to amend
pleadings and add parties as December 12, 2016. (Docket No.
20, at 2).
December 12, 2016, Plaintiffs filed a motion for leave to
amend their complaint. (Docket No. 21). Plaintiffs'
proposed amended complaint added Wellcon, Inc. as a defendant
in the existing § 1983 action and added a new medical
malpractice claim under state law against Wellcon, Inc.
County Defendants stipulated to the addition of Wellcon, Inc.
to the §1983 action, but opposed the addition of a
medical malpractice claim against Wellcon, Inc. (Docket No.
22). County Defendants argued that the proposed medical
malpractice claim was time-barred under Utah Code §
78B-3-404(1) and that addition of the malpractice claim would
unduly delay proceedings. Specifically, County Defendants
asserted that the addition of the medical malpractice claim
would delay proceedings in at least two ways. First,
Plaintiffs had not yet completed the Utah Health Care
Malpractice Act's (“UHCMA”) mandatory
pre-litigation procedures, which are a prerequisite to any
malpractice suit against a healthcare provider. See
§ 78B-3-416(1)(c). County Defendants urged that this
pre-litigation process could take up to six months to reach a
conclusion. Second, County Defendants asserted that the close
of fact discovery on February 14, 2017 was fast approaching
and suggested that the addition of the malpractice claim
would necessarily prolong pretrial discovery. County
Defendants contended that these potential delays would be
prejudicial to their interest in resolving the existing
claims against them promptly.
response, Plaintiffs acknowledged that they had not yet
obtained the required “certificate of compliance”
issued by a state medical review board, which would confirm
that they had “complied with all conditions
precedent” to suit under the Act. See §
78B-3-418(1). Nevertheless, Plaintiffs insisted that they
could obtain the required certificate in relatively short
order. In fact, they predicted no more than “a few
months” were required to complete the pre-litigation
process. (Docket No. 23, at 6). As to any delay in pretrial
discovery, Plaintiffs argued that County Defendants had
already stipulated to the addition of a new party, which
would necessarily prolong pretrial discovery even without the
addition of the medical malpractice claim.
argument on the motion to amend was held before the
Magistrate on January 27, 2017. (Docket No. 26). There,
Plaintiffs insisted that they would be unable to refile the
medical malpractice claim in state court because the
statutory limitations period had expired. (See
Docket No. 33-1, at 9). Shortly thereafter, the Magistrate
issued an order permitting the addition of Defendant Wellcon,
Inc. to the 42 U.S.C. § 1983 claim, but denying leave to
amend the complaint to add a medical malpractice claim
against Defendant Wellcon, Inc. (Docket No. 27). The Magistrate
premised the denial of leave to amend on the prejudice that
could befall Defendants should the malpractice claim be
It is uncertain how long the pre-litigation procedures will
take. And even more concerning, it is unknown whether
Plaintiffs will even be successful in the pre-litigation
phase persuading the review board that they may bring an
action. By allowing the state medical malpractices claim,
these uncertainties would be introduced into this case
creating prejudice for [County] Defendants. Such prejudice is
magnified by the stage of the proceedings in this case. In
short, based on the specific facts of this case, the court
finds undue prejudice to [County] Defendants and thus it is
proper to deny [Plaintiffs'] motion [to amend].
(Docket No. 27, at 4). In reaching this conclusion, the
Magistrate noted that “[m]uch discovery has already
taken place in this action” and that “[f]act
discovery is set to close on February 14, 2017 with expert
reports due the next month in March.” (Id.).
Based on this analysis, the Magistrate denied Plaintiffs'
motion to amend in part, refusing to allow the addition of
the medical malpractice claim against Defendant Wellcon, Inc.
February 15, 2017, Plaintiffs objected to the
Magistrate's decision pursuant to Fed.R.Civ.P. 72(a) and
28 U.S.C. § 636(b)(1)(A). (Docket No. 30). Pursuant to
DUCivR 72-3(b), this court ordered Defendants Salt Lake
County and James Winder (“County Defendants”) to
respond to Plaintiffs' Objection. (Docket No. 32). County
Defendants timely complied. (Docket No. 33). The court now
reviews the Magistrate's decision under 28 U.S.C. §
object to the Magistrate's decision and argue that she
applied the wrong legal standard to find undue prejudice in
this instance. (Docket No. 30, at 1, 4-6). County Defendants,
of course, disagree. (Docket No. 33, at 4). In reexamining
whether to allow Plaintiffs to add the medical malpractice
claim, this court must “defer to the magistrate
judge's ruling unless it [was] clearly erroneous or
contrary to law.” See Allen v. Sybase, Inc.,
468 F.3d 642, 658 (10th Cir. 2006) (alteration in original)
(quoting Hutchinson v. Pfeil, 105 F.3d 562, 566
(10th Cir. 1997)); 28 U.S.C. § 636(b)(1)(A);
Fed.R.Civ.P. 72(a). The “clearly erroneous”
standard requires affirmance unless the reviewing court
“on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.”
Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458,
1464 (10th Cir. 1988) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)). A
magistrate's decision is “contrary to law” if
the magistrate applies the wrong legal standard or misapplies
the proper standard. Meacham v. Church, No.
2:08-cv-535, 2010 WL 1576711, at *1 (D. Utah Apr. 19, 2010)
(unpublished) (quoting Kounelis v. Sherrer, 529
F.Supp.2d 503, 518 (D.N.J. 2008)).
Plaintiffs argue that the Magistrate's decision was
contrary to law because she applied the incorrect legal
standard in finding undue prejudice. Specifically, Plaintiffs
argue that courts in the Tenth Circuit “typically find
prejudice only when the amendment unfairly affects the
defendants in terms of preparing their defense to the
amendment.” (Docket No. 30, at 7 (quoting Minter v.
Prime Equip. Co., 451 F.3d 1196, 1208 (10th Cir. 2006)
(internal quotations omitted))). While this may be true as a
general rule, the authorities cited by Plaintiffs do not
definitively hold that a court may only find
prejudice when the amendment might affect the defendant's
case. See Minter, 451 F.3d at 1208 (“Courts
typically find prejudice only when the amendment
unfairly affects the defendants in terms of preparing their
defense to the amendment.” (emphasis added and internal
quotations omitted)). Plaintiffs have not pointed ...