The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case was referred to the undersigned for all pretrial matters by the Hon. John T. Elfvin on June 13, 2006. It is now before the court on Defendants' motion to amend the Second Amended Scheduling Order (Doc. No. 44) filed January 21, 2008, and Defendants' motion to strike Plaintiff's opposition (Doc. No. 47) filed February 18, 2008.
In this civil rights action brought pursuant to 42 U.S.C. § 1983, Plaintiff alleges a violation of his rights under the Eighth Amendment based on Defendants' alleged failure to provide medical treatment for a serious injury to his lower back following Plaintiff's fall in a shower while Plaintiff was held in the Monroe County jail where Defendants were employed as medical care staff.
By papers filed January 21, 2008, Defendants move to amend (Doc. No. 44) ("Defendants' motion") the Second Amended Scheduling Order filed May 24, 2007 (Doc. No. 38) including the Affidavit of Joseph A. Matteliano, Esq. ("Matteliano Affidavit") and Defendants' Memorandum of Law in Support of Motion to Amend Scheduling Order ("Defendants' Memorandum"). Specifically, Defendants seek additional time to file a motion for leave to file an amended answer raising as an affirmative defense Plaintiff's failure to exhaust administrative remedies. On February 12, 2008, Plaintiff filed the Affidavit of Simon Mendez in opposition, Plaintiff's Reply to Defendant's [sic] Notice of Motion to Amend Scheduling Order (Doc. No. 46) ("Plaintiff's Reply" or "Mendez Affidavit"). On February 18, 2008, Defendants moved to strike Plaintiff's Reply (Doc. No. 47) ("Defendants' Motion to Strike"). On February 28, 2008, Plaintiff filed a letter in opposition to Defendants' Motion to Strike (Doc. No. 48) ("Plaintiff's Reply/Response"). Oral argument was deemed unnecessary.
This action was commenced on December 27, 2004 against the Monroe County Hospital. Thereafter, Plaintiff filed, on July 5, 2005, an amended complaint against Defendants, a physician, registered nurses and a medical staff member employed by the Monroe County Jail where Plaintiff was being held in custody at the time he sustained serious injury, following a fall in the jail's shower, to his lower back. Plaintiff alleges Defendants failed to promptly diagnose and treat this injury causing Plaintiff unnecessary pain and suffering, and permanent injury. Because of significant delay in effecting service upon the Defendants by the United States Marshal's Service, Defendants answered the Amended Complaint on March 24, 2006 ("Answer") but did not assert, as an affirmative defense, that Plaintiff failed to exhaust administrative remedies, in the form of a grievance, as required under the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) ("§1997e(a)").
On August 22, 2006, a scheduling order was filed, pursuant to Fed.R.Civ.P. 16(b), directing, inter alia, that any motion to amend the pleadings be filed not later than October 2, 2006 and that discovery conclude by June 1, 2007 (Doc. No. 17) ("the Scheduling Order"). On January 24, 2007, Defendants moved to amend the Scheduling Order to address difficulties in arranging for an independent medical examination of Plaintiff (Doc. No. 27), and, by order filed February 1, 2007, the Scheduling Order was amended, inter alia, to enlarge the period to June 29, 2007 conclusion of discovery ("Amended Scheduling Order") (Doc. No. 29). No change to the Scheduling Order's cut-off date, October 2, 2006, for motions to amend the pleadings was requested or included in the Amended Scheduling Order. On May 23, 2007, Defendants moved to amend the Amended Scheduling Order (Doc. No. 37) to accommodate the need to conduct an independent medical examination of Plaintiff. On May 24, 2007, a Second Amended Scheduling Order was filed amending the Amended Scheduling Order to enlarge the period to October 31, 2007 and September 28, 2007, respectively, for completion of discovery and expert disclosures ("Second Amended Scheduling Order") (Doc. No. 38). As with the Amended Scheduling Order, no additional period for motions to amend the pleadings was requested or included in the Second Amended Scheduling Order.
As noted, on January 24, 2007, Defendants moved to dismiss the action, pursuant to Fed.R.Civ.P. 12(b)(6), based on Plaintiff's failure to allege exhaustion of administrative remedies as required by § 1997e(a). On December 12, 2007, the undersigned issued a Report and Recommendation recommending that Defendants' motion be denied (Doc. No. 42) ("the R&R"). Specifically, this court found that § 1997e(a)'s exhaustion requirement is an affirmative defense and that, unless pleaded as an affirmative defense to a prisoner civil rights action brought pursuant to § 1983, such defense is waived. R&R at 5 (citing Jones v. Bock, 549 U.S. 199, ___, 127 S.Ct. 910, 921-22 (2007)). The court further found that as, in this case, Defendants never pleaded Plaintiff's failure to comply with §1997e(a) as an affirmative defense in the Answer, Defendants had waived such defense, and that, based on such waiver, Defendants' motion to dismiss on this sole ground for relief was without merit and should be denied. Id. Defendants timely filed, on December 27, 2007, objections to the R&R (Doc. No. 43). On March 26, 2008, District Judge Skretny accepted the R&R (Doc. No. 49) ("Order"), and denied Defendants' motion on the ground that under Bock, supra, Defendants had waived the affirmative defense otherwise available under § 1997e(a) by failing to plead it. Order at 4.
Where the court has entered a scheduling order pursuant to Fed.R.Civ.P. 16(b) ("Rule 16(b)") providing a cut-off date for motions seeking leave to serve amended pleadings, the liberal standard of Fed.R.Civ.P. 15(a)(2) that such leave should be freely granted in the interest of justice does not apply. Kassner v. 2nd Avenue Delicatessen, Inc., 496 F.3d 229, 244-45 (2d Cir. 2000). Instead, the moving party must first meet the more stringent requirement, set forth by Rule 16(b), that a party seeking leave to amend the pleadings beyond the date established for filing such motions to amend must demonstrate the existence of "good cause," Fed.R.Civ.P. 16(b), for such a belated request to amend. See Kassner, 496 F.3d at 243; Parker v. Columbia Pictures Industries, 204 F.3d 326, 339-40. Under Rule 16(b), a finding of good cause "depends on the diligence of the moving party." Parker, 204 F.3d at 340. "'Good cause' means that scheduling deadlines cannot be met despite a party's diligence." Carnrite v. Granada Hospital Group, Inc., 175 F.R.D. 439, 446 (W.D.N.Y. 1997) (citing 6A Wright, Miller, Kane, FEDERAL PRACTICE AND PROCEDURE, § 1522.1 at 231 (2d ed. 1999)). Specifically, "[f]or purposes of Rule 16, a showing of 'good cause' requires 'the party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'" Carnrite, supra (citing and quoting cases). Although the absence of prejudice to the non-moving party is relevant to the exercise of the court's discretion, it does not satisfy the good cause requirement. Id. (citing Amcast Indus. Corp. v. Detrex Corp., 132 F.R.D. 213, 218 (N.D. Ind. 1990)). See also Kassner, 496 F.3d at 244 ("the primary consideration is whether the moving party can demonstrate diligence.") (citing Parker, 204 F.3d at 339-40).
In support of the instant motion, Defendants argue that when Defendants filed, on January 24, 2007, their motion to dismiss asserting Plaintiff's failure to comply with § 1997e(a), "the law did not require pleading the affirmative defense of exhaustion of administrative remedies in the Answer." Defendants' Memorandum at 4. Thus, according to Defendants, the Supreme Court's decision in Bock, supra, constituted "a significant change in the law" applicable to this case and, as such, constitutes "good cause" for purposes of Rule 16(b)'s requirement. Id. at 3 (citing Oxaal v. Internet Pictures Corp., 2002 WL 485704 *1-2 (Mar. 27, 2002 N.D.N.Y.). Defendants' contention fails because contrary to Defendants' assertion, the applicable law did not change.
Prior to January 24, 2007, when Defendants' motion to dismiss was filed, the Second Circuit had, beginning in 1999, ruled in several published decisions that the exhaustion requirement of § 1997e(a) constituted an affirmative defense in a prisoner civil rights case. Specifically, in Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004) the court noted that in Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) the court found the § 1997e(a) exhaustion requirement was an affirmative defense. Jenkins, supra ("A defendant in a prisoner § 1983 suit must [ ] assert as an affirmative defense the plaintiff's failure to comply with the PLRA's [exhaustion] requirements."). In Johnson, the court also noted that in a 2002 decision, Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002), it had directed district courts to consider whether a defendant's failure to plead the affirmative defense waived it. Johnson, 380 F.3d at 695. Thus, in Johnson, in 2004, the Second Circuit specifically held this affirmative defense was subject to waiver by virtue of a defendant's failure to timely raise it. Id. In finding defendants in that case had waived the affirmative defense by failing to timely raise it, the court pointed out the absence of any basis on which defendants could have been "misled by the then - current law of this circuit into waiving its affirmative defense of non-exhaustion." Johnson, 380 F.3d at 696 (underlining added). No authority need be cited for the proposition that attorneys representing parties in this court (or any other court) are expected to familiarize themselves with the law applicable to matters for which they are responsible, and that relevant decisions of the Second Circuit are controlling precedent on matters before this court. While ...