On February 21, 2012, plaintiff filed a motion to amend her complaint and/or augment her administrative claim to seek damages in an amount in excess of the sum claimed in plaintiff's administrative claim, and noticed the motion for hearing on March 21, 2012. Dckt. No. 36. Defendant opposes the motion. Dckt. No. 38. For the reasons stated herein, plaintiff's motion is denied.*fn1
Plaintiff Jayme Reynolds filed this negligence action on January 21, 2010 under the Federal Tort Claims Act ("FTCA") alleging that she sustained injuries in a motor vehicle accident that occurred on January 24, 2008. Dckt. No. 1. Plaintiff was a passenger in a vehicle that collided with a postal truck driven by a United States Postal Service letter carrier, and she allegedly sustained injuries as a result. Id.
Plaintiff filed an administrative claim on July 18, 2008, in which she described the nature of her injuries as head, facial, neck, shoulder, back, and foot injuries. She claimed damages in the amount of $100,000.
Plaintiff now seeks to increase her damages amount from $100,000 to $250,000, arguing that (1) on June 10, 2010, plaintiff's doctor determined for the first time that the pain plaintiff was continuing to experience was permanent; (2) on August 4, 2010, plaintiff's doctor determined for the first time that plaintiff's olfactory nerve had been severed in the accident, causing a permanent loss of her sense of smell; and (3) in January 2011, plaintiff developed a new condition, severe gastroenteritis, as a result of the pain medication the accident requires plaintiff to take. Dckt. No. 36 at 2.
On January 7, 2011, the court issued a status (pretrial scheduling) order pursuant to Federal Rule of Civil Procedure ("Rule") 16. Dckt. No. 24. Among other things, the order provided that good cause would be required to amend the complaint and that all law and motion was to be completed by October 26, 2011. Id. at 1, 2. Notwithstanding that order, plaintiff did not indicate that she would seek to amend her complaint or her administrative claim until December 28, 2011, when the parties filed their final pretrial statement. Dckt. No. 27 at 7. Accordingly, plaintiff's request to amend is untimely under the law and motion deadline set forth in the Rule 16 scheduling order, and plaintiff has not shown good cause to modify that order. See Fed. R. Civ. P. 16(b) ("A schedule shall not be modified except upon a showing of good cause and by leave of the district judge."); Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 607-09 (9th Cir. 1992) (Rule 16(b)'s "good cause" standard applies when a plaintiff seeks to amend a complaint after the scheduling order deadline, and the primary consideration in the good cause determination is the "diligence of the party seeking the amendment");
Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D.Cal. 1999) ("[N]ot only must parties participate from the outset in creating a workable Rule 16 scheduling order but they must also diligently attempt to adhere to that schedule throughout the subsequent course of the litigation."). Nor has plaintiff shown good cause to amend her complaint.
Here, plaintiff contends that she learned of the newly discovered evidence supporting her motion to amend in June 2010, August 2010, and January 2011. However, plaintiff has provided no explanation as to why plaintiff waited until December 2011, when the parties filed their final pretrial statement, to raise the issue of amending her complaint and/or administrative claim. Moreover, the parties' joint status report filed on December 2, 2010 indicated that no amendments to the pleadings were anticipated, even though two of plaintiff's three "newly discovered" facts occurred prior to that joint status report and prior to the issuance of the Rule 16 scheduling order. See Dckt. No. 18 at 2; see also Jackson, 186 F.R.D. at 608 (stating that if a party seeking leave to amend after entry of the pretrial scheduling order was aware of those circumstances necessitating the motion for leave to amend when submitting a status report "and yet said nothing about them, then such an omission would not be 'compatible with a finding of diligence'"). Plaintiff had the opportunity to advise the court and opposing counsel that she intended to amend her complaint and/or her administrative claim prior to entry of the pretrial scheduling order, but failed to do so. She also had ample opportunity to raise the issue prior to the expiration of the time for completion of discovery and dispositive motions. As is apparent from the discussion below, there is no legitimate reason why an appropriate motion for leave to amend was not filed within the time limits set by the scheduling order. In light of that lack of diligence, the court cannot say that plaintiff was diligent in assisting the court in creating a workable Rule 16 pretrial scheduling order and complying with it. Plaintiff's request to amend her complaint and/or her administrative claim is appropriately denied on that basis alone. However, when considered on the merits, plaintiff's request to amend her complaint and/or her administrative tort claim must also be denied because the underlying basis for the motion is unfounded.
III. MERITS OF PLAINTIFF'S MOTION
The FTCA provides plaintiffs an exclusive remedy against the United States for injuries arising out of tortious acts committed by federal government employees within the scope of their employment. 28 U.S.C. §§ 2671 et seq. As a prerequisite to filing suit under the FTCA, a plaintiff must exhaust his or her administrative remedies. 28 U.S.C. § 2675(a). Particularly, § 2675(a) requires a plaintiff to first present an administrative claim to the appropriate federal agency and then receive a final denial of the claim from the agency or allow six months to pass without a final disposition. Id. Thereafter, if the plaintiff files an action in the district court for damages, the FTCA prohibits the plaintiff from seeking damages "in excess of the amount of the claim presented to the federal agency." Id. § 2675(b).
Section 2675(b), however, carves out two exceptions to this cap on recoverable damages: (1) "where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency," or (2) "upon allegation and proof of intervening facts, relating to the amount of the claim." Id. The two exceptions are distinct: "newly discovered evidence" denotes evidence that existed when the administrative claim was filed, but was "not discoverable" at that time; "intervening facts," on the other hand, concern information or events arising after the filing of the claim. See Lowry v. United States, 958 F. Supp. 704, 710 (D. Mass. 1997). "While a plaintiff may seek a larger amount if he meets either of these tests, the burden of proof under both falls on the plaintiff." Salcedo-Albanez v. United States, 149 F. Supp.2d 1240, 1243 (S.D. Cal. 2001).
In determining whether a plaintiff satisfies one of the two exceptions, the court applies an objective standard. See Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988) (remanding FTCA action and instructing district court to determine whether a claimant's injuries were "reasonably foreseeable" at the time the claimant filed the claim). Specifically, information which a plaintiff could have discovered through the exercise of reasonable diligence does not qualify as newly discovered evidence or intervening facts. See id.; see also Low v. United States, 795 F.2d 466, 470 (5th Cir. 1986). In cases involving personal injuries -- such as the instant case -- the FTCA does not hold plaintiffs to a standard that charges them with "knowing what the doctors could not tell [them]." Fraysier v. United States, 766 F.2d 478, 481 (11th Cir. 1985). As one district court explained, "[W]hether the plaintiff is seeking an increase under the rubric of 'newly discovered evidence' or 'intervening facts,' ...