United States District Court, W.D. Washington, Seattle
L. ROBART, UNITED STATES DISTRICT JUDGE.
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. (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.
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. ¶¶
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.”).)
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).
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.
Motion to Amend
seeks the court's leave to amend her complaint to add Mr.
Dean and a claim for fraudulent concealment against the
District. (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.”
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. (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.)
the deadlines for adding parties and amending pleadings have
passed, as is the case here (see Sched. Order at
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).
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.
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
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.
Leave to Amend
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 ...