Thomas v. United States of America

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Glennadena Thomas,
Plaintiff,
v.
United States of America,
Defendant.
No. CV-24-00515-TUC-JCH (JEM)
SEALED ORDER
Before 	the 	Court 	is 	Magistrate 	Judge 	James 	E. 	Marner’s 	Report 	and
Recommendation (“R&R”) (Doc. 46) on Defendant United States of America’s Partial
Motion to Dismiss (Doc. 24), with objections from both parties (Docs. 52–53). After
reviewing the objected-to portions de novo and unobjected-to portions for clear error, the
Court will overrule the objections (Docs. 52–53), adopt Judge Marner’s R&R (Doc. 46),
and deny in part and grant in part Defendant’s Partial Motion to Dismiss (Doc. 24).
Also before the Court is Plaintiff’s Motion to File Second Amended Complaint
(Doc. 57), which the Court will grant.
I. 	Background
Plaintiff Glennadena Thomas is the surviving spouse and representative of the
statutory beneficiaries of decedent Julian Thomas. (Doc. 12 at 4.) On August 10, 2022, Mr.
Thomas was admitted to Archie Hendricks Senior Skilled Nursing Facility (“Archie
Hendricks” or “AHSSNF”) to recover from back surgery. (Id. at 5.) While at Archie
Hendricks, Mr. Thomas was treated by a number of providers of various healthcare
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professions and specialties, including Licensed Practical Nurse (“LPN”) Tina Parker
(“Parker”), 	LPN 	Lisa 	Brown 	(“Brown”), 	LPN 	Shawnna 	Ragain 	(“Ragain”), 	LPN
Stephanie Starling (“Starling”), LPN Bethani Thomas (“Thomas”) LPN Luz Camou
(“Camou”), Registered Nurse (“RN”) Natalie Jensen (“Jensen”), and Nurse Practitioner
(“NP”) Deborah Hotep (“Hotep”) (together, “Staffing Company Employees”). (Doc. 12
at 3; Doc. 24 at 3–5; Doc. 36 at 2 (sealed); Doc. 36-1 at 2 (sealed); Doc. 36-2 at 2–3
(sealed).)
While at Archie Hendricks, Mr. Thomas developed severely infected pressure
ulcers, and his surgical wound dehisced. (Doc. 12 at 6–10.) His care team instituted a turn
schedule and high protein diet to address the ulcers and wound. (Id.) However, after the
infections worsened, Mr. Thomas was transferred to Banner Casa Grande emergency room.
(Id. at 10–11.) At Banner, Mr. Thomas was diagnosed with “respiratory failure with
hypoxia and hypercapnia, an infected Stage IV sacral decubitus ulcer, and sepsis.” (Id.
at 11.) He was intubated, placed on antibiotics, and underwent several rounds of wound
debridement, including the removal of his tailbone from infection. (Id.) Mr. Thomas passed
away on November 1, 2022. (Id. at 11.)
Plaintiff filed her Complaint (Doc. 1) on October 23, 2024, followed by her First
Amended Complaint (“FAC”) (Doc. 12) on January 7, 2025. The FAC sues the United
States of America under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq.
(Id. at 1, 11–14.) The FAC alleges that the Staffing Company Employees provided
negligent care to and/or abused and neglected Mr. Thomas at Archie Hendricks, which
“directly and proximately caused or contributed to Mr. Thomas’ injuries and death.” (Id.
at 5–14.)
On March 27, 2025, Defendant filed a Partial Motion to Dismiss the FAC
(“Motion”) for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
(“Rule”) 12(b)(1). (Doc. 24.) Defendant argues the United States is not liable for the acts
of the Staffing Company Employees under the FTCA because the Staffing Company
Employees were not employees of the federal government at any time relevant to the
allegations in the FAC. (Id. at 6.) After oral argument and supplemental briefing, Judge
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Marner issued an R&R on August 11, 2025, recommending this Court grant in part and
deny in part the Motion. (Doc. 46 (sealed)).
II. 	Legal Background
Generally, the United States is immune from suit unless it consents to be sued. Fed.
Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Waiver of the “[g]overnment’s
sovereign immunity must be unequivocally expressed in statutory text.” Lane v. Pena,
518 U.S. 187, 192 (1996). The FTCA is a limited waiver of that sovereign immunity, under
which the United States is liable for acts or omissions of “officers or employees of any
federal agency” but not for acts or omissions of “any contractor with the United States.”
28 U.S.C. § 2671.
However, 	the 	Indian 	Self-Determination 	and 	Education 	Assistance 	Act
(“ISDEAA”), Pub. L. No. 93-638, § 1017, 88 Stat. 2203 (1975), authorizes tribes and tribal
organizations to enter into “self-determination contracts” with either the Secretary of
Health and Human Services or the Secretary of the Interior. Sisto v. United States,
8 F.4th 820, 824 (9th Cir. 2021) (citing 25 U.S.C. § 5304(i),(j)). Under 25 U.S.C. § 5321(d),
these “Indian contractors and their employees are deemed to be employees of the United
States Public Health Service, thus making the FTCA applicable to suits against them
arising out of the medical services contract.” Sisto, 8 F.4th at 825–26. Section 5321(d) also
extends FTCA coverage to “an individual who provides health care services pursuant to a
personal services contract with a tribal organization.” But “individuals performing work
under a contract with a subcontractor, rather than with the Indian contractor,” are generally
not federal employees. Sisto, 8 F.4th at 827. FTCA coverage only extends to said
individuals where the Indian contractor has “authority to control and supervise the ‘detailed
physical performance’ and ‘day to day operations’” of those individuals. Carrillo v. United
States, 5 F.3d 1302, 1304 (9th Cir. 1993).
Archie Hendricks is operated by the Tohono O’Odham Nursing Care Authority
(“TONCA”) for the Tohono O’Odham Nation (the “Nation”). (Doc. 12.) The Nation and
the United States entered into a Compact of Self-Governance under the ISDEAA. (Doc. 24
at 3.) The Nation established TONCA to operate Archie Hendricks. In the terminology of
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the ISDEAA, Archie Hendricks is an “Indian contractor.” See 25 U.S.C. § 5321(d).
TONCA, doing business as Archie Hendricks, entered into an Agreement for
Staffing Services with OneStaff Medical, LLC (“OneStaff”) (the “TONCA-OneStaff
Agreement”). OneStaff placed LPNs Parker, Brown, Ragain, Starling, Thomas, and Camou
and RN Jensen at Archie Hendricks. (Id. at 3–4.) TLC Healthcare Medical Group, Inc.
(“TLC”) contracted with TONCA for professional medical services, and NP Hotep
contracted with TLC to provide NP services at Archie Hendricks. (Id. at 5.)
III. 	R&R (Doc. 46 (sealed))
The R&R recommends the Court grant in part and deny in part Defendant’s Motion.
(Doc. 46.) The R&R found insufficient evidence to determine whether the Staffing
Company Employees were independent contractors or federal employees. (Id. at 7.) The
R&R recommends the Court deny Defendant’s “Motion with respect to LPNs Parker,
Brown, Ragain, Starling, Thomas, [and] Camou, and RN Jensen solely to permit discovery
into the issues of control and supervision exercised by TONCA over these individuals.”
(Id.) The R&R also finds the FAC “fails to allege the presence of a non-delegable duty or
that NP Hotep was negligent in performance of any non-delegable duty” and recommends
the Court grant Defendant’s Motion regarding NP Hotep without prejudice to Plaintiff’s
ability to file a Second Amended Complaint (“SAC”). (Id. at 17.)
a. 	Legal Standards
i. 	R&R Findings and Recommendations
The 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). The Court must
review 	the 	specific, 	objected-to 	portions 	of 	the 	report, 	proposed 	findings, 	or
recommendations de novo. See § 636(b)(3); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003) (en banc). Arguments that merely repeat or rehash arguments already
addressed in the R&R are insufficient to trigger de novo review and are instead reviewed
for clear error. See Curtis v. Shinn, No. CV1904374PHXDGCJZB, 2021 WL 4596465,
at *5 (D. Ariz. Oct. 6, 2021). And the Court reviews for clear error any unobjected-to
portions of the R&R. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7 th Cir. 1999). If,
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following review, “the district court is satisfied with the magistrate judge’s findings and
recommendations it may in its discretion treat those findings and recommendations as its
own.” Morris v. Shin, No. CV 20-322, 2023 WL 6248830, at *7 n. 5 (D. Ariz. Sept. 26,
2023) (quoting Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)).
ii. 	Rule 12(b)(1) Motion to Dismiss
If a defendant moves to dismiss an action for lack of subject matter jurisdiction
under Rule 12(b)(1), the plaintiff must show subject matter jurisdiction exists. Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). And “[i]f the factual basis for
jurisdiction is disputed, ‘[t]he plaintiff bears the burden of proving by a preponderance of
the evidence that each of the requirements for subject-matter jurisdiction has been met.’”
San Diego Cnty. Credit Union v. Citizens Equity First Credit Union, 65 F.4th 1012,
1028–29 (9th Cir.), cert. denied, 144 S. Ct. 190 (2023) (quoting Leite v. Crane Co., 749
F.3d 1117, 1121 (9th Cir. 2014)).
b. 	Plaintiff’s Objections
Plaintiff lodges a limited, partial objection to the R&R’s recommendation to grant
Defendant’s Motion as to NP Hotep, requesting an opportunity to amend her FAC before
the Court orders dismissal. (See generally Doc. 53 (sealed).) After de novo review, the
R&R did not err in this recommendation. Accordingly, the Court will overrule Plaintiff’s
objection and adopt the R&R’s recommendation to grant Defendant’s Motion with respect
to NP Hotep (Doc. 46 at 16–17 (sealed)).
c. 	Defendant’s Objections
Defendant’s objections are less than clear. (Doc. 52 (sealed).) The Court surmises
that Defendant objects to the R&R’s (1) focus on the Arizona requirement that an LPN
work under the supervision of a RN (id. at 4); (2) comparison of LPN requirements to the
requirements for Certified Registered Nurse Anesthetists (“CRNA’s”) in Bird v. United
States, 949 F.2d 1079 (10th Cir. 1991), and Bryant v. United States, No. CIV 98–1495,
2000 WL 33201357 (D. Ariz. Jan. 11, 2000) (Doc. 52 at 5 (sealed)); (3) focus on TONCA’s
contract authority to regulate the practice and training of its providers at the facility (id.
at 4, 6); (4) failure to consider that OneStaff was responsible for paying the contractors and
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that the TONCA-OneStaff Agreement requires OneStaff to purchase malpractice insurance
and 	indemnify 	TONCA 	for 	negligence 	of 	the 	contractors 	(id. 	at 3); 	and
(5) recommendation to permit Plaintiff to conduct discovery related to the day-to-day
control over the LPNs and RN Jensen (id. at 6).
i. 	Applicable law
“In some circumstances, despite language to the contrary in a contract, a court may
determine that a worker is an employee based on the degree of control exercised over the
worker.” Sisto, 8 F.4th at 829. Common law agency principles also help differentiate
between contractor and employee. Autery v. United States, 424 F.3d 944, 957 (9th Cir.
2005). But “the critical test for distinguishing an [employee] from a contractor is the
existence of federal authority to control and supervise the detailed physical performance
and day-to-day operations of the contractor.” Id. at 956 (citation modified).
ii. 	Arizona regulations suggest TONCA exercised control over the
LPNs.
Under A.R.S. § 32-1601(19), an LPN is “a person who holds a practical nurse
license . . . and 	who 	practices 	practical 	nursing.”1 	Section 32-1601(20) 	then 	defines
“practical 	nursing” 	as 	“includ[ing 	certain] 	activities 	that 	are 	performed 	under 	the
supervision 	of 	a 	physician 	or 	a 	registered 	nurse . . . .” 	And 	Ariz. 	Admin. 	Code
§ R4-19-401A (2024) mandates that an LPN “shall engage in practical nursing as defined
in A.R.S. § 32-1601 only under the supervision of a registered nurse or licensed physician.”
The R&R found that TONCA’s Director of Nursing RN Orett Todd was the supervising
RN over the LPNs. (Doc. 46 at 14 (sealed).)
Defendant objects to the R&R’s reliance on these requirements, arguing they are
insufficient alone to show adequate control. (Doc. 52 at 4 (sealed).) Defendant made the
same argument below, which the R&R addressed, recommending additional discovery to
make an affirmative finding. (See Doc. 46 at 14 (sealed).) Accordingly, the Court reviews
this portion of the R&R for clear error and finds none. The R&R did not find that the
1 The R&R misquotes § 32-1601(19) (Doc. 46 at 14:7–9 (sealed)) and the Court notes this
as a needed correction. However, this error does not change the R&R’s analysis and the
Court notes the error only for completeness.
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Arizona requirements alone show adequate control. At most, the R&R found that Arizona’s
requirements tend to support a finding that TONCA, through supervising RN Todd,
controlled the LPNs to some degree. (Id. at 14–15.)
iii. 	The R&R properly relied on Bird and Bryant.
Defendant objects to the R&R’s reliance on Bird and Bryant. (Doc. 52 at 5 (sealed).)
Defendant argues these cases are distinguishable because applicable state laws required the
CRNAs in Bird and Bryant to practice in the “immediate presence of supervising
physicians,” while Arizona law did not require the LPNs here to practice in RN Todd’s
immediate presence. (Id.) Defendant argues that “the intense level of supervision required
of [CRNAs] should not be conflated with that required of LPNs who tend to daily needs of
a patient in a skilled nursing facility” and that unlike the hospitals in Bird and Bryant,
“TONCA staff did not have direct physical control” over the LPNs. (Id.)
Defendant’s 	arguments 	oversimplify 	the 	holdings 	in 	Bird 	and 	Bryant 	and
misconstrue the R&R’s application of the cases. Although the applicable state law in Bird
required the CRNA to practice in the “immediate presence” of a physician, state law also
required the CRNA to practice “under the direct supervision and control” of a physician.
949 F.2d at 1081–82. And in Bryant, the applicable state law did not contain the same
“immediate presence” language as in Bird. Rather, the applicable state law in Bryant
required CRNAs to “function under the direction of and in collaboration with a licensed
physician.” 	2000 	WL 	33201357, 	at *7. 	Arizona 	regulations 	required 	the 	LPNs 	to
administer their services “under the supervision” of a RN or physician, see Ariz. Admin.
Code § R4-19-401A, similar to the “direct supervision and control” language in Bird and
“under the direction of and in collaboration with” language in Bryant. And TONCA’s
Director of Nursing RN Todd was the supervising RN over the LPNs, suggesting that
TONCA exercised some degree of control over the LPNs. (Doc. 46 at 14 (sealed).)
Even assuming that the state laws in Bird and Bryant required a greater level of
control over the CRNAs than Arizona state law required over the LPNs here, the R&R did
not err in relying on Bird and Bryant. The courts in Bird and Bryant also focused on
whether the hospital’s “policies and procedures” and “actual relationship” with the CRNA
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“demonstrate[d] supervision and control over [the CRNA’s] day-to-day operations as a
CRNA.” Bryant, 2000 WL 33201357, at *7; Bird, 949 F.2d at 1086. To determine this, the
courts examined the express language in the hospitals’ rules and regulations and testimony
from witnesses on the hospitals’ operations. Bird, 949 F.2d at 1081–82, 1086; Bryant, 2000
WL 33201357, at *4–5. Here, the record is lacking evidence of Archie Hendricks’s policies
and procedures, witness testimony on Archie Hendricks’s operations, as well as the signed
agreements between the LPNs and OneStaff. It is possible that the contracts, witness
testimony, and policies and procedures reflect strong day-to-day control over the LPNs, as
similar evidence did in Bird and Bryant. Thus, the R&R did not err in applying Bird and
Bryant and, after de novo review, the Court will overrule this objection.
iv. 	The R&R did not make any findings or recommendations based
on the TONCA-OneStaff Agreement.
The R&R highlights that “under the TONCA-OneStaff Agreement, TONCA set the
standards, TONCA provided training, and TONCA (not OneStaff) had the right to dismiss
the LPNs and RN Jensen for falling short of TONCA’s standards or failing to adhere to its
policies.” (Doc. 46 at 14–15 (sealed).) Defendant objects to this, arguing that the only
“training” referenced in the contracts is on HIPAA compliance and that TONCA’s ability
to set standards and dismiss contractors are “facility-wide ‘general regulation’ standards”
that do not “void their independent status.” (Doc. 52 at 5–6 (sealed).)
The mere fact that an individual must comply with federal standards and regulations
does not make her a federal employee under the FTCA. United States v. Orleans, 425 U.S.
807, 815 (1976). Indeed, the United States may “fix specific and precise conditions to
implement federal objectives” without becoming liable for an independent contractor’s
actions. Id. However, if those conditions or regulations give the federal government the
power to “supervise the daily operation” of the individual, then she may be a federal
employee. Id.
Here, under the TONCA-OneStaff Agreement, OneStaff agreed to “identify and
provide certain OneStaff Medical Professionals to [Archie Hendricks] that are qualified
and compliant with the standards identified by [TONCA].” (Doc. 28 at 3 (sealed).) The
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Agreement further states that TONCA “shall be responsible for providing the necessary
training to the OneStaff Medical Professional prior to working as required by HIPAA and
consistent with the training provided to other members of [TONCA’s] workforce.” (Id.
at 8.) The Agreement allows TONCA to “immediately” terminate any OneStaff Medical
Professional at TONCA’s discretion for several reasons, such as conduct “considered by
[TONCA] to be unethical, unprofessional, fraudulent, or adverse to the interest, reputation
or 	business”; 	any 	violation 	of 	“rules, 	policies, 	and 	or/procedures 	of 	[TONCA]”;
“failure . . . to 	confirm 	and 	comply 	with 	[TONCA’s] 	professional 	requirements”;
“failure . . . to 	follow 	behavioral 	norms 	generally 	applicable 	to 	all 	employed 	by
[TONCA]”; and “determination of [TONCA] that [a] OneStaff Medical Professional is not
providing adequate patient care.” (Id. at –78.) The TONCA-OneStaff Agreement also
provides that “OneStaff Medical Professional shall be subject to [TONCA’s] policies and
procedures.” (Doc. 28 at 8 (sealed)). These resemble general regulations and do not appear
to give TONCA the power to supervise the daily operation of the LPNs or RN Jensen. See
Orleans, 425 U.S. at 817–18 (finding requirement to comply with “employment policies
and procedures” and “programmatic limitations and application procedures” did not
indicate federal employment); Lurch v. United States, 719 F.2d 333, 338 n.9 (10th Cir.
1983) (finding hospital’s ability to terminate physician and requirement that physician
conform to the hospital’s rules and regulations “amount[ed] to no more than pervasive
regulation” and did not make physician a federal employee). Thus, to the extent that the
R&R points to these provisions as potential evidence of employee status, it may have gone
too far. (See Doc. 46 at 14:27–28, 15:1–2, 7–15 (sealed).)
However, the Court does not believe that this undermines the R&R’s ultimate
findings and recommendations. The R&R does not make any specific findings or
recommendations based upon these contractual provisions. At most, the R&R implies that
the provisions in the TONCA-OneStaff Agreement may support that the LPNs and RN
Jensen are employees. (Id. at 14–15.) The R&R does not reference the TONCA-OneStaff
Agreement when recommending additional discovery. (Id. at 15–16.) Rather, the R&R
cites Bird and Bryant for support that discovery outside of the TONCA-OneStaff Agreement
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is necessary to make affirmative findings. (Id. at 15–16.) Accordingly, the Court will
overrule this objection after de novo review.
v. 	The 	R&R 	properly 	focused 	on 	TONCA’s 	detailed 	physical
control of the workers.
Defendant objects to the R&R not considering that OneStaff paid the wages and
taxes of and purchased malpractice insurance for the LPNs and RN Jensen and the
TONCA-OneStaff Agreement required OneStaff to indemnify TONCA for negligent acts
or omissions of the LPNs or RN Jensen. (Doc. 52 at 3 (sealed).)
In determining whether a worker is an independent contractor or employee, courts
have considered factors such as who provides liability insurance for or compensates the
worker. See Lilly v. Fieldstone, 876 F.2d 857, 858 (10th Cir. 1989) (liability insurance);
Kramer v. United States, 843 F.Supp. 1066, 1071 (1994) (compensation). “While these and
other factors may be relevant in resolving the independent contractor question, the critical
factor in distinguishing an employee from an independent contractor is the federal
government’s authority to control and supervise the individual’s ‘detailed physical
performance’ and ‘day-to-day operations.’” Bryant v. United States, No. CIV 98-1495 PCT
RCB, 2000 WL 33201357, at *6 (D. Ariz. Jan. 11, 2000) (quoting Orleans, 425 U.S.
at 814). Accordingly, the R&R properly focused on TONCA’s detailed physical control of
the workers. Weighing of other pertinent factors may be necessary after further discovery
gives more insight into the day-to-day operations of the LPNs and RN Jensen. But because
there is not enough evidence to apply the “critical test” of detailed physical control,
application of the other factors would be premature. See Autery, 424 F.3d at 956. Based on
the Court’s de novo review, this objection is overruled.
vi. 	It is appropriate to permit additional discovery into TONCA’s
day-to-day control over the LPNs and RN Jensen.
The R&R recommends permitting additional discovery into the day-to-day control
over the LPNs and RN Jensen, including “Archie Hendricks’s policies and procedures and
testimony regarding the supervision of the LPNs and RN Jensen as it relates to the alleged
events that occurred in this case.” (Doc. 46 at 16 (sealed).) Defendant objects to this
recommendation. (Doc. 52 at 6 (sealed).)
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A court “may allow discovery to aid in determining whether it has . . . subject matter
jurisdiction.” Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 406, 430 n.24 (9th Cir.
1977); accord Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 n.1 (9th Cir.
1977). The decision to allow discovery is “generally left to the discretion of the trial court”
and is permissible where “pertinent facts bearing on the question of jurisdiction are
controverted . . . or where a more satisfactory showing of the facts is necessary.” Wells
Fargo, 556 F.2d at 430 n.24. “Discovery is necessary, however, only if it is possible that
the plaintiff can demonstrate the requisite jurisdictional facts if afforded that opportunity.”
St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).
The R&R did not err in recommending additional discovery. “The critical test for
distinguishing an [employee] from a contractor is the existence of federal authority to
control and supervise the detailed physical performance and day-to-day operations of the
contractor.” Autery, 424 F.3d at 956 (citation modified). Relying primarily upon Bird and
Bryant, the R&R found that a more satisfactory showing of the day-to-day control over the
LPNs and RN Jensen is necessary. The Court agrees and finds that, with additional
discovery, Plaintiff could possibly show adequate control over the LPNs and RN Jensen.
Accordingly, after de novo review, the Court will overrule this objection.
IV. 	Motion to File Second Amended Complaint (Doc. 57 (sealed))
On September 2, 2025, Plaintiff filed a Motion to File SAC, seeking to address the
deficiencies highlighted in the R&R as to NP Hotep. (See Doc. 46 at 17 (sealed).) Plaintiff
requests leave to amend because “discovery and disclosures have revealed additional facts
concerning: (a) the statutory, nondelegable duties contained in the TONCA medical
director’s contract; and (b) the contractual relationship between [NP] Hotep and Medical
Director Dr. Bolhack.” (Doc. 57 at 1–2 (sealed).)
Because this Court stayed the case during the government shutdown (Doc. 62) and
the parties stipulated to two deadline extensions (Docs. 68, 70), Defendant has not yet filed
a Response to Plaintiff’s Motion to File SAC. However, in the interest of judicial economy,
to avoid any continued delay in this case, and to facilitate a decision on the merits, the
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Court will grant Plaintiff’s Motion to File SAC.2
a. 	Standard of Review
A court “should freely give leave [to amend pleadings] when justice so requires.”
Fed. R. Civ. P. 15(a)(2). Courts apply this policy with “extreme liberality” to facilitate
decisions on the merits, rather than on the pleadings or technicalities. See Desertrain v.
City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014). Nonetheless, a district court has
discretion in granting leave and considers five factors in “assessing the propriety of leave
to amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment,
and whether the plaintiff has previously 	amended the complaint.” United Bhd. of
Carpenters & Joiners of Am. v. Bldg. & Const. Trades Dep’t, AFL-CIO, 770 F.3d 834, 845
(9th Cir. 2014) (quoting United States v. Corinthian Colls., 655 F.3d 984, 995 (9th
Cir.2011)).
b. 	Analysis
There is no evidence Plaintiff filed her motion in bad faith. And granting Plaintiff’s
motion would not cause undue delay or prejudice the Defendant. The litigation is just
beginning, with the Defendant not yet filing an Answer and the Court not yet issuing a
scheduling order. (See generally docket). C.f., Ryan v. Editions Ltd. W., Inc., 786 F.3d 754,
767 (9th Cir. 2015) (upholding denial where leave to amend would necessitate reopening
discovery or conducting a new trial). Moreover, Plaintiff is not seeking to assert entirely
new legal theories or greatly alter the litigation’s nature. See United States v. United
Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016); Morongo Band of Mission
Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Instead, Plaintiff seeks to clarify her
claims based on newly discovered facts. Finally, amendment is not futile. See Hooper v.
Shinn, 985 F.3d 594, 622 (9th Cir. 2021) (“Amendment is futile if the claim sought to be
added is not viable on the merits.”). Plaintiff seeks to address the deficiencies highlighted
in the FAC by the R&R as to NP Hotep (See Doc. 46 at 17 (sealed)) by alleging that N.P.
2 If Defendant had filed a Response to Plaintiff’s motion to amend, Defendant might have
argued that the proposed amendments are futile. Once the parties have completed limited
discovery authorized by this Order, Defendant can raise these same arguments through a
motion to dismiss.
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Hotep had a nondelegable duty under Arizona law. (See Doc 57 at 7–6 (sealed)).
Accordingly, the Court will grant Plaintiff’s Motion to File SAC.
VIII. 	Order
IT IS ORDERED overruling the objections to the R&R (Doc. 52–53 (sealed)) and
adopting the R&R’s recommendations (Doc. 46 (sealed)).
IT IS FURTHER ORDERED granting in part and denying in part Defendant’s
Partial Motion to Dismiss (Doc. 24) consistent with Judge Marner’s R&R.
IT 	IS 	FURTHER 	ORDERED 	granting 	Plaintiff’s 	Motion 	to 	File 	Second
Amended 	Complaint 	(Doc. 	57 	(sealed)). 	Plaintiff 	must 	file 	the 	Second 	Amended
Complaint, attached to the Motion as Exhibit A, within 7 days of the date of this Order.
IT IS FURTHER ORDERED that the case remains referred to Magistrate Judge
James E. Marner for further pretrial proceedings. The parties have leave to conduct limited
discovery related to the Court’s subject matter jurisdiction. Specifically, the parties may
conduct discovery regarding TONCA’s day-to-day control over LPNs Parker, Brown,
Ragain, Starling, Thomas, and Camou, and RN Jensen. The parties may also conduct
discovery pertaining to whether NP Hotep is an employee or independent contractor of the
federal government.
Dated this 12th day of January, 2026.
CC: Heather Lynne Hawthorne Goodwin, Jeffrey Allen Imig, and Sarah Suzanne Letzkus
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