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A.T. v. Everett School District

United States District Court, W.D. Washington, Seattle

October 25, 2017

A.T., Plaintiff,
EVERETT SCHOOL DISTRICT, et al., Defendants.




         Before the court are Plaintiff A.T.'s motion to amend her complaint (MTA (Dkt. # 39)), motion to compel Defendant Everett School District (“the District”) to supplement its response to Interrogatory No. 2 (MTC (Dkt. # 41)), and motion to exclude the District's expert, Dr. Timothy Kahn (MTE (Dkt. # 49)). The District opposes the motions.[1] (MTA Resp. (Dkt. # 47); MTC Resp. (Dkt. # 45); MTE Resp. (Dkt. # 53).) The court has considered the motions, the parties' submissions in support of and in opposition to the motion, the relevant portions of the record, the oral argument of the parties, and the applicable law. (See 10/24/17 Min. Entry (Dkt. # 55).) Being fully advised, the court denies the motion to amend, grants the motion to compel, and grants in part and denies in part the motion to exclude for the reasons set forth below.


         This case involves allegations of sexual misconduct by A.T.'s former high school teacher, Defendant Craig Verver. (See SAC (Dkt. # 28).) A.T. alleges that she was Mr. Verver's high school student at Cascade High School in the District from 2001-2003, and that she held leadership positions in the National Honor Society, for which Mr. Verver served as the faculty advisor, and worked closely with Mr. Verver to plan her senior project. (Id. ¶¶ 1-2, 4, 7, 10.) She alleges that Mr. Verver “groomed” her for sexual gratification and then began a sexual relationship with her during her senior year. (Id. ¶¶ 7-17.) A.T. alleges that she told Mr. Verver “on numerous occasions that she did not want to continue” the sexual relationship but he “manipulated the situation.” (Id. ¶ 18.) She further alleges that the District and its agents, including Defendant Superintendent Carol Whitehead, knew Mr. Verver was having inappropriate contact with her and fell below the standard of care by failing to protect her. (Id. ¶¶ 3, 19-20.) A.T. asserts claims against Ms. Whitehead and Mr. Verver under 42 U.S.C. § 1983 for violating her Ninth and Fourteenth Amendment rights (id. ¶ 25); against the District for the Section 1983 violations pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) (id. ¶ 26); against the District for violating Title IX, 20 U.S.C. § 1681, et seq. (id. ¶ 27); negligence (id. ¶ 28); and negligent infliction of emotional distress (id. ¶ 29). She seeks compensatory and punitive damages. (Id. ¶¶ 23-24.)

         On December 2, 2016, the court issued a scheduling order. (Sched. Order (Dkt. # 20).) The court set December 30, 2016, as the deadline for joining additional parties and August 30, 2017, as the deadline for amending pleadings. (Id. at 1.) The case is set to go to trial on February 26, 2018. (Id.) A.T. amended her complaint once as of right (FAC (Dkt. # 7)) and once after the court granted leave to amend in connection with Mr. Verver's motion to dismiss (2/28/17 Order (Dkt. # 27) at 8; SAC (Dkt. # 28)). The parties exchanged expert witness disclosures on September 29, 2017. (See 8/30/17 Order (Dkt. # 38).) The District disclosed Dr. Janet Barry and Dr. Timothy Kahn as expert witnesses. (See Cochran Decl. (Dkt. # 50) ¶ 2, Ex. A (“Barry Rep.”); id. ¶ 3, Ex. B (“Kahn Rep.”).)

         On August 9, 2017, A.T. deposed Sarah Kelsey, a Cascade High School teacher. (Hastings Decl. (Dkt. # 40) ¶ 2.) During her deposition, Ms. Kelsey testified that a fellow teacher, Steve Garmanian, told Ms. Kelsey that he had seen Mr. Verver “‘caressing' A.T.'s face in an ‘oddly intimate' way while [A.T.] was sitting on [Mr. Verver's] couch in the early 2000s.” (MTA at 2 (quoting Hastings Decl. ¶ 9, Ex. A (“Kelsey Dep.”) at 38:23-39:9).) Ms. Kelsey further testified that she reported the incident Mr. Garmanian witnessed to former Cascade High School principal James Dean (Kelsey Dep. at 39:10-12), and Mr. Garmanian told her in October 2016 that the school administration never followed up with him (id. at 38:24-39:3).

         On September 28, 2017, A.T. filed two motions. (See MTA; MTC.) She moves to amend her complaint to add Mr. Dean as a party and a claim for fraudulent concealment against the District for allegedly withholding Mr. Garmanian's report. (MTA at 5-6.) She also moves to compel the District to supplement its response to Interrogatory No. 2, which A.T. served on April 26, 2017, and the District responded to on June 13, 2017, and supplemented on September 13, 2017. (MTC at 1; Hastings Decl. ¶¶ 4, 10, Ex. B (“Interrog. Resp.”); see also 1st Moore Decl. (Dkt. # 46) ¶¶ 3-4.) On October 12, 2017, A.T. moved to exclude one of the District's expert witnesses, Dr. Kahn. (See MTE at 1.) The court addresses each of the three motions in turn.


         A. Motion to Amend

         A.T. seeks the court's leave to amend her complaint to add Mr. Dean and a claim for fraudulent concealment against the District.[2] (MTA at 6.) A.T. argues that good cause exists for amending her complaint because she first learned about Mr. Garmanian's report during the August 9th deposition, the next day requested depositions of Mr. Dean and Mr. Garmanian to confirm Ms. Kelsey's report, and shortly thereafter sent the District a letter requesting that it supplement its discovery. (Id. at 5.) She contends that there is good cause for her delay in seeking amendment because she diligently sought discovery, which led to her uncovering Mr. Dean's alleged involvement and Mr. Garmanian's report. (Id. at 6.) A.T. also argues that under Federal Rule of Civil Procedure 15(a)(2) justice requires adding Mr. Dean because his “conduct falls squarely within the definition of deliberate indifference, making him personally liable for [A.T.'s] alleged constitutional deprivations.” (Id. at 5.) She further argues that justice requires allowing her to add fraudulent concealment allegations because “upon information and belief, the District withheld [Mr. Garmanian's] report to fraudulently conceal [its] actual notice that [Mr.] Verver was a sexual predator.” (Id.)

         The District opposes both amendments. (See MTA Resp.) First, the District argues that there is no good cause for amendment because A.T. knew of the facts underlying her motion three weeks before the deadline to amend pleadings.[3] (Id. at 4.) The District also contends that allowing A.T. to amend her complaint “will cause an undue delay in litigation” and that the claim for fraudulent concealment is futile. (Id. at 5.)

         1. Good Cause

         When the deadlines for adding parties and amending pleadings have passed, as is the case here (see Sched. Order at 1)[4], a plaintiff may seek amendment only by first showing “good cause” under Federal Rule of Civil Procedure 16(b)(4), Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992); Fed.R.Civ.P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge's consent.”). “Rule 16(b)'s ‘good cause' standard primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. To show “good cause, ” a party must show that it could not meet the deadline in the scheduling order despite the party's diligence. Id. “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.” Id. If a party shows good cause, it must then also demonstrate that the amendment is proper under Federal Rule of Civil Procedure 15. See Id. at 608; MMMT Holdings Corp. v. NSGI Holdings, Inc., No. C12-1570RSL, 2014 WL 2573290, at *2 (W.D. Wash. June 9, 2014).

         The court finds good cause for allowing A.T. to seek the court's leave to amend. The court's inquiry turns on whether A.T. was “diligent in discovering the basis for and seeking” to join Mr. Dean and add the fraudulent concealment allegations. Rain Gutter Pros, LLC v. MGP Mfg., LLC, No. C14-0458RSM, 2015 WL 6030678, at *2 (W.D. Wash. Oct. 15, 2015). During Ms. Kelsey's deposition on August 9, 2017, A.T. first learned of Mr. Dean's involvement and the previously undisclosed report of Mr. Verver's conduct. (MTA at 5; Hastings Decl. ¶ 2.) There is no indication that A.T. earlier possessed the evidence that forms the basis for her requested joinder and amendment. (See MTA; MTA Resp.) And from the date of the deposition, A.T. took reasonable steps to confirm the involvement and report, including by meeting and conferring with the District regarding the newly discovered information. (See Hastings Decl. ¶¶ 2-3, 6-8.) A.T. therefore had good cause for not seeking amendment earlier.

         The District argues that A.T. has not shown good cause because she waited three weeks from Ms. Kelsey's deposition to bring the motion (MTA Resp. at 4), although the District's counsel withdrew this contention at oral argument. The court does not find, however, that the three weeks-a relatively short delay between when A.T. learned of Mr. Dean's involvement and the undisclosed report and when she filed the motion to amend-undermines her diligence in the course of litigation. Rather, A.T.'s conduct demonstrates that she pursued corroborating evidence before seeking amendment. Cf. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987) (finding no “unjust delay” where plaintiffs “waited [to move to amend] until they had sufficient evidence of conduct upon which they could base claims of wrongful conduct”).

         The court thus concludes that A.T. has shown good cause for her delay in seeking to join Mr. Dean and add the fraudulent concealment allegations, and proceeds to analyze whether leave to amend is appropriate.

         2. Leave to Amend

         Federal Rule of Civil Procedure 15(a)(2) requires the court to “freely give” leave to amend a pleading “when justice so requires.” Fed.R.Civ.P. 15(a)(2). This policy is “applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001); see also DCD Programs, 833 F.2d at 186. To assess the propriety of a motion for leave to amend, the court assesses five factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the party has previously amended its pleading. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th ...

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