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Mark A. Grant v. United States of America; United States of America Department of

November 14, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is plaintiff's motion for leave to amend the Amended Complaint (Dkt. No. 63), which was filed after expiration of the deadline for the amendment of pleadings stated in the Status (Pretrial Scheduling) Order in this case.*fn2 The court heard this matter on its law and motion calendar on November 10, 2011. Plaintiff, who is proceeding without an attorney, appeared at the hearing and represented himself. Assistant United States Attorney Yoshinori H. T. Himel appeared on behalf of defendants United States of America and United States of America Department of Veterans Affairs ("VA"). The undersigned has considered the briefs, oral arguments, and appropriate portions of the record in this case and, for the reasons stated below, recommends that plaintiff's motion for leave to amend be denied. In short, plaintiff has not demonstrated that "good cause" under Federal Rule of Civil Procedure 16 exists such that the Status (Pretrial Scheduling) Order should be modified to permit the filing of plaintiff's further amended complaint.


This action arises from a May 7, 2006 automobile accident involving plaintiff, a military veteran who suffered injuries as a result of the accident, and a third party motorist. Plaintiff's claims generally concern alleged violations of his privacy rights stemming from the unauthorized disclosure or transmittal of plaintiff's private health information and medical records by Darrell McDonald, a paralegal with the VA, to the third-party motorist's insurer, Mercury Casualty Company ("Mercury"), and to Mercury's employee, Mary Pickett.*fn3

Plaintiff's operative complaint is the Amended Complaint (Dkt. No. 56). Plaintiff filed the Amended Complaint on July 21, 2011, and the Amended Complaint was deemed filed through a court-approved stipulation of the parties. (Stipulation & Order, July 27, 2011.) Defendants' operative answer is their Amended Answer (Dkt. No. 59).*fn4

Plaintiff's Amended Complaint alleges that McDonald's unauthorized release of plaintiff's private health information and medical records violated plaintiff's privacy rights.

Specifically, plaintiff asserts two claims for relief. First, plaintiff alleges that McDonald's actions violated the Privacy Act of 1974, 5 U.S.C. §§ 552a et seq. (See Am. Compl. ¶¶ 28-42.) In connection with his first claim for relief, plaintiff seeks $5 million dollars in general damages, $17,095.69 in special damages, $6,566.18 in court costs and fees expended by plaintiff in connection with prior litigation with Mercury, and attorney's fees. (See id. ¶ 38 and prayer for relief at 14-15.)

Second, plaintiff seeks declaratory relief. (See Am. Compl. ¶¶ 43-71.) Plaintiff appears to contend that he or a third-party insurer, ostensibly Mercury, was "unlawfully" billed by defendants in the amount of $17,095.69 for medical care plaintiff received as a result of the automobile accident, and that some of the billing medical records released in connection with the billing did not pertain to the May 7, 2006 automobile accident. (See id. ¶¶ 47-50.) This billing allegedly resulted in a medical lien being imposed by the VA. Plaintiff seeks a declaration of the parties' rights, obligations, and duties as to each item billed and the responsibility to pay all or part of the $17,095.69 lien.*fn5 (See id. ¶ 54-55.)

On September 29, 2011, the parties filed a second joint status report with the court (Dkt. No. 58). Pertinent here, that joint status report states: "The First Amended Complaint was filed July 21, 2011. No further amendment of the complaint is contemplated." (Joint Status Report, Sept. 29, 2011, at 2 (emphasis added).)*fn6 On September 30, 2011, the undersigned entered a Status (Pretrial Scheduling) Order in this case (Dkt. No. 61). As a result of the parties' joint representation in the joint status report regarding further amendment of the complaint, the Status (Pretrial Scheduling) Order provides, in relevant part: "No further joinder of parties or amendments to pleadings will be permitted except with leave of court and upon a showing of good cause." (Status (Pretrial Scheduling) Order at 3.)

Despite the fact that the joint status report in no way indicated that plaintiff intended to seek leave to amend the Amended Complaint, plaintiff filed the pending motion for leave to amend on October 3, 2011. Plaintiff filed the motion only five days after representing in the Joint Status Report that he contemplated no further amendments to the complaint, and only four days after entry of the Status (Pretrial Scheduling) Order. Plaintiff admits that he did not seek defendants' consent to the proposed amendment prior to filing his motion, and only sought such consent through an exhibit to his motion. (See Mot. for Leave to Amend at 2 & Ex. Z.) Plaintiff's motion focuses on the liberal amendment policy underlying Federal Rule of Civil Procedure 15(a) (see id. at 2-3), but does not address the issue of "good cause" to modify the scheduling order under Federal Rule of Civil Procedure 16(b)(4) and applicable case law.

Plaintiff's motion appends a proposed further amended complaint, the text of which is approximately 21 pages longer than plaintiff's 15-page Amended Complaint. (Mot. for Leave to Amend, Ex. A.) As with plaintiff's previously filed complaints in this case, the proposed amended complaint is prolix and confusingly organized; the reader is forced to wade through numerous unclear or redundant allegations. Relevant to the pending motion, and contrary to plaintiff's representations at the November 10, 2011 hearing, plaintiff proposes the addition of new, unenumerated claims for relief in his proposed amended complaint. At the hearing, plaintiff misrepresented that his proposed amendment would simply allege that plaintiff exhausted administrative remedies prior to filing suit. Plaintiff's representation is plainly false.

First, plaintiff proposes the addition of a claim or claims for alleged violations of the Privacy Act's statutory provisions relating to requests by individuals for the amendment or correction of his or her records contained in an agency's system of records, see 5 U.S.C. §§ 552a(d)(2), (d)(3), (g)(1), and (g)(2).*fn7 (See, e.g., Proposed Am. Compl. ¶¶ 25-25.10.) Although alleged without precision or clarity, plaintiff alleges that McDonald refused to amend plaintiff's "medical records for the May 7, 2011 [sic] automobile accident submitted for payment as a [VA] lien," and failed to inform plaintiff of his right to request review by the head of the VA of McDonald's refusal to amend or correct the records. (See id. ¶¶ 25.7, 25.10; see also id. ¶ 27.21 (alleging that McDonald intentionally or willfully refused to amend plaintiff's "medical records to exclude those medical billing records which were submitted to [Mercury] and/or [Pickett] for medical care unrelated to any injuries suffered in the auto accident of May 7, 2006 as billing items in defendant [VA] claim/Lien of $17,095.69 . . .").) Relatedly, plaintiff alleges a violation of 5 U.S.C. §§ 553-57, which address agency adjudications and the provision of certain notices in connection with an agency hearing. (See Proposed Am. Compl. ¶¶ 25.17-20.)

Second, plaintiff seeks to add a claim that defendants violated 38 U.S.C. § 7332, a proposed claim that is partially based on the same alleged acts of unauthorized disclosure by McDonald that gave rise to the alleged Privacy Act violations. (See, e.g., Proposed Am. Compl. ¶¶ 27.16-27.17.) Plaintiff also appears to allege that defendants' failure to amend his medical records also violated 38 U.S.C. § 7332. (See, e.g., id. § 27.20.) Section 7332 provides for the imposition of a fine on an individual who violates the non-disclosure provisions contained in the remainder of that statutory section. See 38 U.S.C. § 7332(g) ("Any person who violates any provision of this section or any regulation issued pursuant to this section shall be fined . . . ."); see also 38 C.F.R. § 1.463 ("Under 38 U.S.C. 7332(g), any ...

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