United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING MOTION TO ADD DEFENDANT AND FOR
William T. Lawrence, Judge United States District Court.
James Fowler has moved to add claims against the United
States and for reconsideration of the Court's Entry
denying his request for counsel. For the reasons stated
below, Fowler's motion [dkt 90] is denied.
Motion to Add Defendant
first moves to add a negligence claim against the United
States under the Federal Tort Claims Act. Fowler asserts that
his learning disabilities and lack of legal knowledge has
prevented him from raising this claim previously and that the
defendant will not be prejudiced because the proposed
negligence claim will be based on the same facts as the
deliberate indifference claim that is proceeding. The
defendant opposes the request to add a negligence claim
against the United States arguing that the proposed amendment
is untimely and futile.
the motion to amend is not accompanied by a proposed amended
complaint as required by Local Rule 15-1 and can be denied
for this reason alone. In addition, as the defendants argue,
the motion for leave to amend is untimely. The Court's
Entry Setting Pretrial Schedule issued on June 11, 2015,
required that any motion to amend the complaint must be filed
by July 1, 2015. Fowler's motion for leave to amend was
filed on August 1, 2016, over one year later.
a motion for leave to amend a complaint is evaluated under
Federal Rule of Civil Procedure 15(a)(2). That rule provides
that courts “should freely give leave when justice so
requires.” See also Soltys v. Costello, 520
F.3d 737, 742-43 (7th Cir. 2008) (discussing the standard).
However, the rule is in some tension with the rule that
governs scheduling orders, Federal Rule of Civil Procedure
16. Under the rule, district courts are generally required to
issue scheduling orders in their cases as soon as
practicable. Fed.R.Civ.P. 16(b)(2). And courts are required
in a scheduling order to set a deadline for filing amended
pleadings. Fed.R.Civ.P. 16(b)(3)(A). Alioto v. Town of
Lisbon, 651 F.3d 715, 719 (7th Cir. 2011). Because the
motion to amend was filed after the deadline set forth in the
scheduling order, the Court applies the heightened good-cause
standard of Rule 16(b)(4) before considering whether the
requirements of Rule 15(a)(2) are satisfied. See Id.
“Rule 16(b)'s ‘good cause' standard
primarily considers the diligence of the party seeking
amendment.” Trustmark Ins. Co. v. Gen. &
Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir.
2005) (quoting Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 609 (9th Cir. 1992)). Fowler argues that he was
delayed in filing his complaint because of a delay in
receiving a response to his Notice of Tort Claim, but that
delay apparently only hindered him until September of 2014,
when he filed this complaint. In addition, Fowler asserts
that he believed that a negligence claim was proceeding. But
the Court's screening order of March 17, 2015, is clear
that the deliberate indifference claims against the
individual defendants are proceeding. That Entry makes no
mention of any negligence claim against the United States.
Further, that Entry required Fowler to notify the Court if he
believed that he had alleged a claim that was not addressed
in that Entry by April 10, 2015. In short, to be permitted to
amend his complaint at this late stage of this case, Fowler
must show “good cause” for his delay and
diligence on his part in seeking amendment. Because he has
failed to show diligence on his part, his motion to amend
[dkt 90] is denied.
Request for Reconsideration
also seeks reconsideration of the Court's ruling denying
his motion for appointment of new counsel. Fowler argues that
he never instructed his pro bono counsel to withdraw and that
his counsel was appointed “to represent [him] through
trial.” By failing to proceed to trial, according to
Fowler, his appointed counsel breached the contract with him.
motion to reconsider is designed to correct manifest errors
of law or fact or to present newly discovered evidence.
Publishers Resource, Inc. v. Walker-Davis Publications,
Inc., 762 F.2d 557, 561 (7th Cir. 1985). For example, a
motion for reconsideration is appropriate when: (1) a court
has patently misunderstood a party; (2) a court has made a
decision outside the adversarial issues presented; (3) a
court has made an error not of reasoning but of apprehension;
or (4) a change in the law or facts has occurred since the
submission of the issue.
has identified no manifest error of law or fact in the
Court's ruling denying his request for the appointment of
new counsel. First, there is evidence in the record that
Fowler did instruct his counsel to withdraw. In his motion
for appointment of counsel filed on July 13, 2016, Fowler
states that he “relieved Barns and Thornburg LLP from
representation” and received a letter stating as much.
He also states that he “was forced to terminate
representation in his own best interest.” In addition,
despite the fact that counsel was appointed to represent the
plaintiff through trial, this appointment was never intended
to create a conflict with counsel's ethical duty of
candor with the Court and Rule 11 obligation not to pursue
frivolous claims. It is clear from Fowler's filings that
his counsel concluded, after thorough investigation, that his
claims are frivolous. It was not a breach of contract to
choose not to pursue them. Additionally, the Court will not
undertake to repeatedly attempt to appoint counsel - whether
on a voluntary or mandatory basis - to represent Fowler.
Accordingly, his request for reconsideration [dkt 90] is
denied. Fowler will have to pursue his claims on his own.