1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Estate of Antonio Thomas, et al., No. 2:20-cv-00903-KJM-DB 12 Plaintiffs, ORDER 13 v. County of Sacramento, et al., 1S Defendants. 16 17 The plaintiffs in this action request leave to further amend their complaint. As explained 18 | below, they have not shown good cause for their delay in seeking leave to amend, so the motion 19 | is denied. 20 The court described the plaintiffs’ allegations in a previous order. See Prev. Order, ECF 21 | No. 76. To summarize, this is a civil rights action concerning the defendants’ alleged failure to 22 | prevent the death of Antonio Thomas at the hands of another inmate. See generally First Am. 23 | Compl., ECF No. 79. Mr. Thomas’s estate and family sued the County of Sacramento, the 24 | Sheriffs Department, the Sheriff, and several Doe defendants in this court. See generally id. 25 | They recently amended their complaint to add claims against two Sheriff's Deputies. See 26 | generally Prev. Order. They now request leave to further amend their complaint to allege the 27 | Sheriff's Department has a policy of unreasonably delaying investigations into inmate injuries 28 | and deaths. See generally Mot. Am., ECF No. 81. The defendants oppose this request. See

1 generally Opp’n, ECF No. 100. The motion is fully briefed and the court submitted it without 2 oral argument. See generally Reply, ECF No. 105; Min. Order, ECF No. 103. 3 The time for amendments to the pleadings in this action has passed. See Mins., ECF 4 No. 14; Standing Scheduling Order, ECF No. 16; Stip. & Order, ECF No. 63. The court thus 5 considers first whether the plaintiffs have shown “good cause” to modify the court’s scheduling 6 orders under Rule 16. See Prev. Order at 2. That requirement focuses primarily on their 7 diligence and their reasons for not acting sooner. In re W. States Wholesale Nat. Gas Antitrust

F.3d 716, 737 (9th Cir. 2013) (citing Johnson v. Mammoth Recreations Inc.,

604, 609 (9th Cir. 1992)), aff’d on unrelated question sub nom. Oneok, Inc. v. Learjet, Inc., 10

(2015). 11 The plaintiffs have not demonstrated diligence. They could have sought leave to amend 12 their complaint to assert a theory about delayed investigations many months ago, but they did not. 13 It has been more than a year since the defendants first informed the plaintiffs about the policies 14 that are the target of the amendments in question, and several months have passed since the 15 defendants updated their original discovery responses. See Mem. at 3–4, ECF No. 81-1 16 (summarizing interrogatory responses in which defendants cited delays in their investigations in 17 November 2020 and April 2021). A party cannot normally show “good cause” to permit late 18 amendments to the pleadings if it was “aware of the facts and theories supporting amendment” 19 long ago. In re W. States, 715 F.3d at 737 (citation omitted). 20 The plaintiffs argue the court should excuse their delay because they were already 21 pursuing a different motion for leave to amend and did not want to file a second motion until the 22 court resolved the first. See Mem. at 7. This argument has two problems. First, the plaintiffs 23 could have pursued both amendments in the same motion; they had the defendants’ original 24 interrogatory responses at the time they filed their first motion. Second, the plaintiffs could also 25 have pursued both amendments concurrently without risking inefficiencies. For example, they 26 could have withdrawn their first motion and then filed a revised motion seeking both 27 amendments. 28 ///// 1 The plaintiffs also offer a different argument for the first time in their reply: they contend 2 Rule 16 is irrelevant because they are not seeking to amend their complaint under Rule 15(a), but 3 rather to supplement their claims under Rule 15(d). See Reply at 1–2. This court “need not 4 consider arguments raised for the first time in a reply brief” and declines to do so now. Zamani v. 5 Carnes,

(9th Cir. 2007). But even if the plaintiffs had properly included this 6 argument in their original motion, they likely would have fallen short of Rule 15(d). The 7 proposed “supplemental” allegations do not relate to events “that happened after the date of the 8 pleading to be supplemented.” Fed. R. Civ. P. 15(d). The “pleading to be supplemented” is the 9 First Amended Complaint, which was filed in November 2021, ECF No. 79, and the plaintiffs’ 10 new allegations cite events in 2019, see Mem. at 1–2. 11 Because the plaintiffs have not shown good cause to permit an amendment, the court does 12 not consider whether that amendment would meet the standard of Rule 15. See Johnson, 13 975 F.2d at 609–10. 14 The motion for leave to amend (ECF No. 81) is denied. 15 IT IS SO ORDERED. 16 DATED: June 13, 2022.