Davis v. Automatic Food Service, Inc. et al

Filing 85

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,
Plaintiff,
v.
AUTOMATIC FOOD SERVICE,
INC., et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv308-MHT
(WO)

OPINION AND ORDER
This

lawsuit

is

before

the

court

on

plaintiff

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.

Automatic

Food argues that the allowance of the amendment would
be

untimely

and

prejudicial.

Based

on

the

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.

I.

LEGAL STANDARD

Rule 15(a) of the Federal Rules of Civil Procedure
provides
served,

that,
leave

after
to

a

amend

responsive

pleading

“shall

freely

be

has

been

given

when

justice so requires.”

A plaintiff should generally be

allowed

claim

to

test

her

on

the

merits,

but

the

liberal amendment policy prescribed by Rule 15 does not
mean

that

leave

will

be

granted

in

all

instances.

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
2

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.
behind,

sending

Little

McGaughy hit Little from

into

the

oncoming

traffic, where he collided with Davis.

lane

of

At the time of

the collision, Little was talking on his cell phone to
get directions and was employed by defendant Automatic
Food Service.

III. PROCEDURAL HISTORY

September 18, 2012: The car wreck at issue in
this case occurs.


April 25, 2014:


May
complaint.

12,

2014:

Davis files first complaint.
Davis

files

first

amended


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.
3


August 18, 2014:
second amended complaint.

Court grants leave to file


September 5, 2014:
second amended complaint.

Automatic

Food

answers


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.

IV. DISCUSSION
Automatic Food alleges that the filing in this case
was untimely and prejudicial.
that

the

wreck

occurred

Specifically, it argues

almost

three

years

ago,

memories of its personnel have faded, and some of its
employees involved in the alleged negligence have since
left

the

company.

The

court

disagrees

for

several

reasons.
First,

the

filing

was

not

untimely.

As

a

threshold, this motion was filed within the deadline
set by the uniform scheduling order.

Although that

deadline is not a complete safe harbor, it does give
4

Davis the benefit of the liberal amendment policy under
Rule 15.

Indeed, the reason to have those deadlines in

the scheduling order is to force plaintiffs to amend a
complaint
counsel

with

enough

explained

notice.

that

she

Moreover,

did

not

find

Davis’s
out

that

Automatic Food might not be training its employees on
the

cell-phone

policy

until

another

employee’s

deposition in September 2014 and that she wanted to
wait

until

deposing

Automatic

Food’s

corporate

representative to decide whether to amend the claim.
But

that

after

the

could

deposition

not

was

scheduling
wait

to

recently

deadline,
confirm

pushed

and
the

back

Davis’s
other

testimony before amending her claim.

until

counsel

employee’s

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.
Second,
prejudiced.
from

the

it

is

unclear

how

Automatic

Food

was

As defense counsel admitted, he understood
first

complaint

that

Automatic

Food’s

cell-phone policy would be at issue because it would go
5

to

whether

Little,

its

employee,

was

negligent

wanton in using his cell phone while driving.

or

This

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.

***
For

the

foregoing

reasons,

it

is

ORDERED

that

plaintiff Sundee Ann Davis’s motion for leave to file
plaintiff’s third amended complaint (doc. no. 78) is
granted.
DONE, this the 17th day of April, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE