CRETE CARRIER CORPORATION v. STACHOWIAK et al
ORDER granting Plaintiff's 43 Motion for Leave to File Amended Complaint and Initial Disclosures (see Order). Signed by Magistrate Judge Tim A. Baker on 3/13/2014. (SWM) Modified on 3/14/2014 (SWM).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
CRETE CARRIER CORPORATION,
EDWARD M. STACHOWIAK,
MARK D. KUDELA,
MID-STATE CARTAGE, INC.,
ORDER ON MOTION TO AMEND COMPLAINT AND INITIAL DISCLOSURES
Plaintiff Crete Carrier Corporation filed a motion to amend its complaint and initial
disclosures to include claims under Nebraska law, which permits recovery in excess of actual
damages. Defendants object to the amendment arguing that Plaintiff’s motion is untimely,
prejudicial, and futile. For the reasons set forth below, Plaintiff’s motion for leave to amend its
complaint and initial disclosures [Filing No. 43] is granted.
The Court should freely grant leave to a party to amend its pleadings when justice so
requires. Fed. R. Civ. P. 15(a)(2). However, when a party submits its motion to amend after the
applicable deadline for amending the pleadings, the party must demonstrate good cause to
amend.1 Fed. R. Civ. P. 16(b)(4). Good cause under Rule 16 considers the diligence of the
moving party. Trustmark Ins. Co. v. General & Cologne Life Re of America, 424 F.3d 542, 553
There is authority for the proposition that the moving party must show excusable neglect for
failing to amend within the CMP deadline. See, e.g., Howell v. CSX Transp., Inc., Cause No.
2:11-cv-079JD, 2013 WL 1149599 (N.D. Ind. Mar. 18, 2013); Adams v. City of Indianapolis,
No. 1:09-cv-175-SEB-DML, 2011 WL 1752105 (S.D. Ind. May 6, 2011). The parties do not
argue the excusable neglect standard. They argue good cause. Thus, the Court proceeds using
the good cause standard.
(7th Cir. 2005). Once the moving party establishes good cause, the Court applies Rule 15’s
liberal standard. Shadeland Station Apartments I, LLC v. Realsource Brokerage Services, L.C.,
No. 1:09-cv-629-WTL-TAB, 2011 WL 1769012, at *1 (S.D. Ind. May 5, 2011).
The Court ordered a June 14, 2013, deadline for filing motions to amend the pleadings.
Seven months after the deadline to amend the pleadings, Plaintiff submitted its motion for leave
to amend to include Nebraska Revised Statute 48-118 as a basis for damages. Plaintiff asserts
that it originally limited recovery to actual damages in an effort to settle the case. Now that
settlement is unlikely, Plaintiff requests leave to amend in an effort to seek all available
damages. During settlement discussions, Plaintiff notified Defendants of its intention to seek
recovery of all damages in the event settlement was unsuccessful. Defendants assert that
Plaintiff does not demonstrate good cause because it knew about the Nebraska statute but choose
not to pursue a claim earlier so that it could obtain settlement more easily. The Court will not
deny a motion to amend merely because a party focused its efforts on settlement instead of
litigation. Settlement is an efficient and effective approach to resolve disputes, and parties that
focus early efforts on settlement should not be penalized for doing so. Moreover, Plaintiff
notified Defendants of its intention to include claims under Nebraska law if settlement was
unsuccessful and filed its motion less than a week after the settlement conference. For the
purposes of Rule 16(b), Plaintiff demonstrates good cause.
Defendants argue that the motion is futile because Nebraska law is not applicable. A
quick review of the facts suggests Nebraska law may be relevant going forward. Plaintiff’s
principal place of business is located in Nebraska. David Baker, who was driving Plaintiff’s
vehicle at the time of the accident and is central to this litigation, filed his workers compensation
claim in Nebraska. Given the facts, a reasonable probability exists that Nebraska law is relevant.
Thus, amending the complaint to include a claim under the Nebraska statute is not futile.
Defendants argue that they will be prejudiced by such amendments, given that the
dispositive motion deadline has passed.2 The fact that the dispositive motion deadline has passed
supports Defendants’ prejudice argument. However, such prejudice is mitigated somewhat given
that the Court will need to address the application of Nebraska law at some point during the
course of litigation.3 Defendants assert that they are further prejudiced given that Baker is not a
party. This argument is not convincing. Baker recently voluntarily appeared in Florida for his
deposition and, according to Plaintiff’s counsel, will attend the trial. It is not entirely clear that
Baker will voluntarily turn over to Defendants his relevant medical documents, but the record
suggests Defendants’ request for such documents was overbroad. [Filing No. 63.]
When justice so requires, the Court must freely grant leave to amend. Thus, Plaintiff’s
motion for leave to amend its complaint and initial disclosure [Filing No. 43] is granted. The
amended complaint and the amended initial disclosures attached [Filing No. 43-1; Filing No. 432] are deemed filed as of the date of this order.
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Defendant Mark D. Kudela filed a motion for summary judgment asserting Indiana law does
not apply to the case, to which Plaintiff has not yet responded. Given that the Court is granting
Plaintiff’s motion to amend, the Court will have an opportunity in its order on summary
judgment to address whether Nebraska law applies. Thus, prejudice to Defendants is minimized.
To minimize prejudice, Defendants can seek to modify the CMP dispositive motion deadline.
Bruce D. Jones
CRUSER MITCHELL & GASTON LLC
Jennifer G Schlegelmilch
CRUSER MITCHELL & GASTON LLC
Keith A. Gaston
CRUSER, MITCHELL & GASTON, LLC
Danford Royce Due
DUE DOYLE FANNING & METZGER
Orfej P. Najdeski
KOPKA PINKUS DOLIN & EADS, LLC
James H. Milstone
KOPKA, PINKUS DOLIN & EADS, LLC
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