Younie v. Hartley Iowa
MEMORANDUM Opinion and Order denying 33 Motion to Amend 2 Complaint (See order Text). Signed by Magistrate Judge CJ Williams on 5/13/2016. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
MEMORANDUM OPINION AND
CITY OF HARTLEY, IOWA,
This matter is before the court pursuant to plaintiff’s Motion to Amend Complaint
(Doc. 33). Plaintiff, Mark Younie (plaintiff), seeks to amend his complaint to add a
claim for a violation of Iowa Code § 70A.29, the so-called whistleblower statute for
public employees. Doc. 33, at 1. Defendant, City of Hartley, Iowa (the City), resisted
the motion and requested oral argument on the motion. Doc. 34. Plaintiff filed a reply
brief. Doc. 36. On April 12, 2016, the court held a hearing on the City’s motion for
summary judgment and plaintiff’s motion to amend the complaint, at which time the court
heard argument on this motion.
For the reasons set forth below, the court denies
plaintiff’s motion to amend his complaint to add a claim.
PROCEDURAL AND FACTUAL BACKGROUND
On October 16, 2014, plaintiff filed a four-count complaint against the City.
Doc. 2. Plaintiff alleges he was employed by the City as its police chief pursuant to a
written contract until January 21, 2014, when his employment was terminated.
contends that his discharge was (a) in retaliation for conduct protected by the Fair Labor
Standards Act (FLSA), (b) a breach of contract, and (c) a violation of Iowa public policy.
Doc. 2, Counts I, II and IV. He further contends that the City violated the Iowa Wage
Payment Collection Act by failing to pay certain wages after the termination, as allegedly
required by the parties’ contract. Id., Count III.
On November 17, 2014, the City filed a motion to dismiss the complaint, alleging
plaintiff failed to state a claim under Count I because he was not actually covered by the
FLSA. Doc. 4. On April 9, 2015, this court denied the City’s motion to dismiss,
finding that although the FLSA provisions do not apply in this case because the police
department had fewer than five employees, plaintiff alleged he, in good faith, believed it
did. Doc. 14. Therefore, the court concluded plaintiff stated a valid federal claim
when he alleged the City fired him in retaliation for filing a grievance asserting a violation
of the FLSA. Id.
While the motion to dismiss was pending, on January 30, 2015, the parties filed,
and the court adopted, a proposed scheduling order. Doc. 12. Among other deadlines,
the scheduling order provided a deadline of March 30, 2015, for amending pleadings.
On April 29, 2015, plaintiff filed an unresisted motion to extend deadlines (Doc. 16),
which the court granted the next day (Doc. 17). The order established October 30,
2015, as the new deadline for completion of discovery.
In his motion,
however, plaintiff did not seek to extend the deadline for amending his complaint, so the
court’s order granting the motion did not extend the deadline for amending pleadings.
On November 30, 2015, the City filed a motion for summary judgment. Doc.
18. In plaintiff’s resistance to the motion for summary judgment, he conceded that his
contract claims could not survive a motion for summary judgment. Doc. 24, at 1 n.1.
On January 4, 2016, plaintiff dismissed Counts II and III of the complaint. Doc. 21.
Accordingly, only Count I (retaliatory discharge) and Count IV (wrongful discharge)
THE PARTIES’ ARGUMENTS
In his motion to amend the complaint, plaintiff cited to Fed. R. Civ. P. 15 and
noted that courts “shall … freely” grant leave to amend complaints “when justice so
requires.” Doc. 33, at 1. Plaintiff argued that “[a] revision of Plaintiff’s petition based
upon subsequently discovered information will clarify the issues and promote judicial
efficiency and justice.” Id. He further argued the court can exercise supplemental
jurisdiction over this state law claim, which he stated arose from the same nucleus of
operative facts. Id., at 1-2.
In its resistance, the City argued that plaintiff “is attempting to add a different
count with different issues.” Doc. 34. It further argued “[d]iscovery was completed
by Defendant with no indication beforehand by Plaintiff that a whistleblower claim might
be alleged.” Id.
In its reply, plaintiff again argued “[t]he Court must give leave to amend freely
when justice so requires.” Doc. 36, at 1. Plaintiff further argued that “[i]n order for
the court to deny a motion to amend, the opposing party must show that it will be unfairly
prejudiced by the amendment.” Id. (citing Dennis v. Dillard Dep’t Stores, Inc., 207
F.3d 523, 525 (8th Cir. 2010)).
The remainder of plaintiff’s reply addressed the
similarities of the elements of the FLSA retaliation claim (Count I), the wrongful
discharge claim (Count IV), and the proposed new whistleblower count in an effort to
demonstrate that the City will not be prejudiced by amending the complaint to add the
new count. Doc. 36, 2-5.
At oral argument on this motion, counsel for plaintiff candidly and honorably
stated that the “subsequently discovered information” was that counsel found, or
“happened upon,” the whistleblower statute while conducting research in preparation for
resisting the City’s motion for summary judgment. Counsel explained that plaintiff was
not previously aware of this statute, perhaps because it is little used. Plaintiff’s counsel
did not allege plaintiff uncovered new evidence in discovery, there was a change in
circumstances, or that a new law was enacted giving rise to a claim under the Iowa
When asked at oral argument what prejudice the City would suffer were the court
to grant the motion to amend the complaint, counsel for the City explained that it would
alter the City’s theory of defense. The City’s counsel suggested that the addition of the
new claim may create a conflict between the City’s theory of defense to the current claims
with a theory of defense it would have to adopt to respond to the new claim. Counsel
for the City, however, did not claim that additional discovery would be necessary.
There is, of course, no absolute right to amend a pleading.
Beach, 318 F.3d 832, 844 (8th Cir. 2003).
See Hammer v. Osage
Plaintiff is correct that Rule 15 of the
Federal Rules of Civil Procedure generally provides that leave to amend a pleading “shall
be freely given when justice so requires.”
Fed. R. Civ. P. 15(a). Plaintiff did not
acknowledge, however, that permitting him to amend the complaint now would require
modification of the scheduling order. Where, as here, a motion to amend a pleading
requires modification of the scheduling order, then a party has the burden of
demonstrating good cause. Fed. R. Civ. P. 16(b)(4); Local Rule 16(f) (“The deadlines
established by the Rule 16(b) and 26(f) scheduling order and discovery plan will be
extended only upon written motion and a showing of good cause.”).
In multiple cases, this court has discussed the interplay between the liberal
amendment provision of Rule 15 and the good cause requirement of Rule 16.
Afshar v. WMG, L.C., 310 F.R.D. 408, 408-12 (N.D. Iowa 2015); Pick v. City of
Remsen, 298 F.R.D. 408, 410-12 (N.D. Iowa 2014); French v. Cummins Filtration, Inc.,
No. C-11-3024-MWB, 2012 WL 2992096 (N.D. Iowa July 19, 2012). In short, the
party moving to modify a scheduling order in order to amend a pleading bears the burden
of showing “diligence in attempting to meet the order’s requirement.”
Hawkins, 464 F.3d 813, 822 (8th Cir. 2006). Although a court may consider prejudice
to the non-moving party, courts generally will not address prejudice where a moving
party has failed to demonstrate diligence.
Bradford v. DANA Corp., 249 F.3d 807, 809
(8th Cir. 2001). Thus, plaintiff’s reliance on Dennis is misplaced. The Dennis Court
did not discuss whether the plaintiff’s motion to amend in that case arose after passage
of the deadline for amending pleadings, and the Court’s decision in Dennis contains no
discussion of Rule 16.
Moreover, neither party briefed the standard that applies when a party moves to
amend a complaint after the deadline for doing so has passed. Rule 16 does not govern
where, as here, a party moves to extend deadlines after the deadline has passed. Rather,
Rule 6(b) applies. Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure provides that
“the court may, for good cause,” extend a deadline “on motion made after the time has
expired if the parties failed to act because of excusable neglect.” Rule 6 applies to “any
time period specified in [the Federal Rules of Civil Procedure], [and] in any local rule or
court order . . . .” Fed. R. Civ. P. 6.
The Federal Rules of Civil Procedure do not define “excusable neglect.”
Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 392
(1993), the Supreme Court found that “‘excusable neglect’ under Rule 6(b) is a somewhat
‘elastic concept’ and is not limited strictly to omissions caused by circumstances beyond
the control of the movant.” In determining whether excusable neglect exists, a court,
therefore, must consider “all relevant circumstances surrounding the party’s omission.”
Id. See also Fink v. Union Central Life Ins. Co., 65 F.3d 722, 724 (8th Cir. 1995)
(citing Pioneer, 507 U.S. at 395). These circumstances include:
(1) The danger of prejudice to the non-moving party;
(2) The length of delay and its potential impact on judicial proceedings;
(3) The reason for the delay, including whether it was within the control of the
(4) Whether the movant acted in good faith.
Treasurer, Trustees of Drury Industries, Inc. Health Care Plan and Trust v. Goding, 692
F.3d 888, 893 (8th Cir. 2012) (citing Pioneer). The four factors do not, however, carry
equal weight; “the excuse given for the late filing must have the greatest import.”
v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir. 2000).
The court takes seriously the discovery deadlines it imposes so as to “secure the
just, speedy, and inexpensive determination of every” case. Fed. R. Civ. P. 1. Parties
are expected to adhere to the deadlines imposed by the court, especially when the parties
themselves propose the deadlines. Courts should appreciate the difficulties and stresses
of litigation practice where attorneys juggle multiple cases with many deadlines. At the
same time, trial attorneys are expected to research causes of action thoroughly at the
pleading stage so that discovery can focus on the causes pled.
In evaluating the relevant circumstances in this case, the court concludes that
plaintiff has failed to demonstrate good cause or excusable neglect.
completed discovery nearly five months ago.
This case is set for trial for June 21, 2016
(Doc. 37), a little more than a month away. Although plaintiff argues the City will not
be prejudiced, the City disagrees on the ground that it may alter how it defends the case.
Although the City was unable to articulate prejudice clearly, the addition of a new theory
of recovery shortly before trial, without an opportunity for the City to conduct discovery
with the claim in view, is inherently prejudicial.
Although the court could reopen
discovery and continue the trial, it is not inclined to do so at this late date.
The length of the delay in moving to amend the complaint also weighs against
granting plaintiff’s motion. The deadline for amending pleadings was March 3, 2015,
more than a year ago.
The reason for the delay is weak; it constitutes “garden-variety attorney
inattention.” Lowry, 211 F.3d at 464. Plaintiff’s counsel candidly admitted that their
excuse for not seeking to amend the pleadings in a timely manner was that they just
recently “happened upon” the statute while conducting research to resist the City’s motion
for summary judgment.
Plaintiff filed his resistance to the motion for summary
judgment, however, on January 4, 2016. Doc. 24. Plaintiff did not file the motion to
amend the complaint until March 9, 2016, more than two months later. Plaintiff offers
no explanation for why it took him another two months to file the motion to amend the
complaint, given the explanation for how counsel discovered the statute. Were the court
to find excusable neglect under these circumstances, “it’s hard to fathom the kind of
neglect that [ ] would not [be] deem[ed] excusable.”
Lowry, 211 F.3d at 464. See also
Mullen v. Heinkel Filtering Systems, Inc., No. C12-2084, 2013 WL 4766785, *4 (N.D.
Iowa Sept. 4, 2013) (unpublished) (denying motion to extend expert disclosure deadline
when it was missed through oversight by counsel).
Finally, although the Iowa
whistleblower statute has not resulted in a large number of reported decisions, the court
notes there are seven reported state court cases citing the statute, and four reported federal
cases in the Northern District of Iowa citing the statute, including one litigated by
plaintiff’s law firm. See Cook v. City of Elkader, No. C03-1029, 2005 WL 151937, at
*1 (N.D. Iowa Jan. 21, 2005).
Finally, the court finds plaintiff’s counsel acted in good faith and “not in an
attempt to delay the process or escape the requirements of the rule.”
Larson v. Farmers
Cooperative Elevator of Buffalo Center, Iowa, 58 F. Supp. 2d 1013, 1017 (N.D. Iowa
1999). This is not a case where plaintiff was attempting to lie in wait and amend the
complaint at the last minute to gain advantage. The court accepts plaintiff’s counsels’
explanation that they just happened upon the statute.
The court finds no good cause for plaintiff’s failure to move to amend the
complaint until more than a year after the deadline for doing so.
See, e.g., Afshar, 310
F.R.D. at 411 (finding plaintiff “failed to demonstrate good cause to allow an amendment
to her complaint more than four months after the scheduling order deadline).
Alternatively, the court finds plaintiff has failed to show excusable neglect for moving to
modify a deadline after it has passed.
For the reasons set forth herein, plaintiff’s Application to Amend Complaint (Doc.
33) is denied to the extent plaintiff seeks to add a claim of breach of contract.
IT IS SO ORDERED this 13th day of May, 2016.
United States Magistrate Judge
Northern District of Iowa
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