HOLMAN

v.

UNITED STATES OF AMERICA

LEE MEMORIAL HEALTH SYSTEM and UNITED STATES OF AMERICA,

Defendants. /

OPINION AND ORDER1

Here is United States Magistrate Judge Mac R. McCoy’s Report and Recommendation (R&R) (Doc. 94), recommending that Plaintiffs’ Motion for Leave to File a Second Amended Complaint and Restyle the Case Caption (Doc. 76) be denied. Plaintiffs object to the R&R (Doc. 99), and Defendant Lee Memorial Health System (Lee Health or Defendant) filed a Response (Doc. 100). For the reasons below, the Court accepts and adopts the R&R and overrules Plaintiffs’ objections.

BACKGROUND

This is a negligence case involving injuries that Viviana Pedro suffered during labor and childbirth at Gulf Coast Medical Center (a Lee Health hospital). The initial Complaint

On May 6, 2019—two months after the settlement—Plaintiffs moved for leave to file a Second Amended Complaint to include causes of action for vicarious liability against Lee Health under theories of actual and apparent agency because of any negligence attributed to the dismissed anesthesiology Defendants under contract with Lee Health. (Doc. 76). The deadline for filing any motions to add parties or to amend pleadings had passed nearly a year prior—on June 11, 20182—and the discovery deadline has been extended to November 8, 2019. (Doc. 54). The Motion to Amend was referred to Judge McCoy who recommends the Motion be denied because Plaintiffs have not adequately demonstrated either good cause or excusable neglect under Federal Rules 6(b)(1)(B) and

16(b)(4) for their failure to seek timely leave to amend. (Doc. 94). Judge McCoy did not consider whether Plaintiffs satisfy Fed. R. Civ. P. 15(a). See Sosa v. Airprint Systems, Inc., 133 F. 3d 1417, 1419 (11th Cir. 1998).

DISCUSSION

In reviewing a report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). When a party makes specific

1. Unfair Prejudice

Plaintiffs first challenge to the R&R argues there would be no prejudice to Defendant if amendment were allowed because the only fact witnesses potentially implicated by Plaintiffs’ amendment that might need to be re-deposed are the anesthesiologist, Dr. Bornacelli-Vergara, and the nurse anesthetist, Pirrone, both of whom were deposed in December 2018. Plaintiffs also assert that whether Lee Health is

5-7 of their Response (Doc. 100). And Defendant points out that correspondence with counsel for the anesthesia providers and Plaintiffs about vicarious liability before the March 2019 settlement served as an opportunity for Plaintiffs’ counsel to revisit the allegations in the First Amended Complaint and realize that the allegations about liability were not pled. That said, Plaintiffs waited until May 2019 to file a Motion to Amend. 4 “The term Fabre defense refers to a defendant's contention that a non-party defendant is wholly or partially responsible for the negligence alleged.” Michael v. Medical Staffing Network, Inc., 947 So. 2d 614, 617 n.3 (Fla. Dist. Ct. App. 2007) (citations omitted).

3. Excusable Neglect

Finally, Plaintiffs argue that Judge McCoy erred in finding that Plaintiffs had not adequately demonstrated excusable neglect and this case should be tried on its merits in the interest of justice rather than compromised by procedural technicalities. Even so, the only reason Plaintiffs’ counsel has offered for the delay is In this case, the good cause requirement is satisfied because Plaintiffs were not aware of the fact that causes of action for vicarious liability against Defendant Lee, under theories of actual and apparent agency for any negligence attributed to the anesthesiology team, had not been pled until after the anesthesiology team had been dismissed pursuant to a settlement agreement on March 7, 2019. Undersigned counsel believed they had been pled, and therefore, did not realize they had not been pled prior to the June 11, 2018 deadline, nor at the time of receipt of the contract agreement between Defendant Lee and the anesthesiology team on October³, 2018. Nevertheless, just as soon as it became apparent that causes of action for vicarious liability had not been pled, Plaintiffs were diligent in seeking the amendment. Undersigned counsel for Plaintiffs admittedly overlooked and neglected, without any intent or purposeful design, to recognize the lack of pleading prior to the settlement date of March 7, 2019. Undersigned counsel prays that the Court will not punish his clients for counsel’s inadvertence with regard to the time restraints imposed by the Court.

(Doc. 81 at 2-3). After an independent de novo review, the Court agrees that it is undisputable that the delay here was entirely within Plaintiffs’ control and that Plaintiffs’ counsel did not act diligently to pursue the amendments once they realized vicarious liability was not pled. Even after the settlement with the anesthesiology Defendants, Plaintiffs waited another two months, until May 6, 2019, to file their Motion for Leave to Amend. See Pioneer Inv. Servs. Co., 507 U.S. at 395 (relevant factors in evaluating excusable neglect include the length of the delay and whether the delay was within control of the movant). Plaintiffs made no effort to explain this delay to Judge McCoy and have likewise made no effort to do so before the undersigned. The third objection is overruled. Therefore, after an independent, de novo review of the file and case law the Court agrees with Judge McCoy and concludes that the Report and Recommendation is correct, and the proposed second amended complaint should not be allowed. Accordingly, it is now ORDERED: (1) Plaintiffs’ Objections (Doc. 99) are OVERRULED. (2) United States Magistrate Judge Mac R. McCoy's Report and Recommendation (Doc. 94) is ACCEPTED and ADOPTED and its findings incorporated herein. (3) Plaintiffs’ Motion for Leave to File Second Amended Complaint and to Restyle the Case Caption (Doc. 76) is DENIED. DONE and ORDERED in Fort Myers, Florida this 5th day of September, 2019.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record