Davis v. Automatic Food Service, Inc. et al
OPINION AND ORDER: it is ORDERED that plf Sundee Ann Davis's 78 motion for leave to file plf's third amended complaint is granted. Signed by Honorable Judge Myron H. Thompson on 4/17/2015. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
SUNDEE ANN DAVIS,
AUTOMATIC FOOD SERVICE,
INC., et al.,
CIVIL ACTION NO.
OPINION AND ORDER
Sundee Ann Davis’s motion for leave to file a third
amended complaint, which adds a new cause of action
against defendant Automatic Food Service.
Food argues that the allowance of the amendment would
representations made on the record today and for the
reasons that follow, the motion for leave to file a
third amended complaint will be granted.
Rule 15(a) of the Federal Rules of Civil Procedure
justice so requires.”
A plaintiff should generally be
liberal amendment policy prescribed by Rule 15 does not
Indeed, district courts may consider such factors as
“undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of the amendment, etc.” in determining whether
“justice so requires” that leave to amend be granted.
Foman v. Davis, 371 U.S. 178 (1962); see also Grayson
v. K Mart Corp., 79 F.3d 1086, 1110 (11th Cir. 1996);
Courtney v. Clark, 2007 WL 2786368, at *1 (M.D. Ala.
2007) (Thompson, J.).
II. FACTUAL HISTORY
This case arises out of a collision on an Alabama
road in September 2012.
Reading the facts as garnered
from the complaint, the court distills that Davis was
traveling northbound on the road while defendant Melvin
Little and defendant James Leon McGaughy were traveling
southbound on the same road.
McGaughy hit Little from
traffic, where he collided with Davis.
At the time of
the collision, Little was talking on his cell phone to
get directions and was employed by defendant Automatic
III. PROCEDURAL HISTORY
September 18, 2012: The car wreck at issue in
this case occurs.
April 25, 2014:
Davis files first complaint.
May 22, 2014:
Automatic Food files an answer
to first amended complaint.
August 13, 2014: Davis moves for leave to file
second amended complaint. It does not affect claims
against Automatic Food.
August 18, 2014:
second amended complaint.
Court grants leave to file
September 5, 2014:
second amended complaint.
February 10, 2015: Joint motion to extend
deadlines granted, making February 27, 2015, the last
day to file an amended pleading.
February 27, 2015:
Davis moves for leave to
file third amended complaint with additional claims for
(i) Automatic Food’s failure to inform and train its
employees on its cell-phone policy and (ii) failure to
give Little directions on the day of the wreck, which
caused him to use his cell phone.
Automatic Food alleges that the filing in this case
was untimely and prejudicial.
Specifically, it argues
memories of its personnel have faded, and some of its
employees involved in the alleged negligence have since
threshold, this motion was filed within the deadline
set by the uniform scheduling order.
deadline is not a complete safe harbor, it does give
Davis the benefit of the liberal amendment policy under
Indeed, the reason to have those deadlines in
the scheduling order is to force plaintiffs to amend a
Automatic Food might not be training its employees on
deposition in September 2014 and that she wanted to
representative to decide whether to amend the claim.
testimony before amending her claim.
In sum, while
Davis probably could have amended her claim earlier,
the court does not find her motion untimely under Rule
15’s generous standards.
As defense counsel admitted, he understood
cell-phone policy would be at issue because it would go
wanton in using his cell phone while driving.
issue would raise the question of what Automatic Food’s
cell-phone policy was at the time of the wreck, whether
Automatic Food told Little about it, and, if so, why he
was not following it.
Therefore, from the beginning of
the lawsuit, Automatic Food should have been aware that
the cell-phone policy was an issue in the lawsuit.
plaintiff Sundee Ann Davis’s motion for leave to file
plaintiff’s third amended complaint (doc. no. 78) is
DONE, this the 17th day of April, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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