State Farm Fire and Casualty Company v. Hartman et al

Filing 144

MEMORANDUM AND ORDER denying 140 Motion for Leave to Amend Third-Party Complaint. Signed by Magistrate Judge Kenneth G. Gale on 10/4/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STATE FARM FIRE AND
CASUALTY COMPANY,

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)
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Plaintiff,
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v.
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JAMIE N. BELL,
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Defendant, Cross-Claimant/
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Third-Party Plaintiff,
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and
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C.M., a minor, by and through her
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natural guardian and next friend,
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BRANLYN FINNELL, DALLAS N.
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HARTMAN, CHARLES C. CONNER III, )
and THE PANTRY, INC.,
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Defendants/Cross-Claim Defendants )
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and
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KENNETH M. KEEN,
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Third-Party Defendant,
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)

Case No. 12-2456-KHV-KGG

ORDER ON MOTION TO AMEND
THIRD-PARTY COMPLAINT OUT OF TIME
Before the Court is the “Motion for Leave to Amend Third-Party Complaint
to Add a Punitive Damage Claim Out of Time” (Doc. 140) filed by Defendant,

Cross-Claimant/Third-Party Plaintiff Jamie N. Bell (hereinafter “Ms. Bell”).
Having reviewed the submissions of the parties, in addition to the procedural
history of this matter, the Court DENIES the motion.
FACTS
Plaintiff State Farm filed its Complaint seeking a declaratory judgment
regarding rights and obligations under a policy of insurance implicated in an
automobile accident resulting in personal injury that occurred in September 2011
on the property of Cross-Claim Defendant the Pantry, Inc. (“the Pantry”). (See
generally Doc. 1.) In Count IV of her third-party Complaint, Ms. Bell alleges that
she was a business visitor on property owned by the Pantry and that the Pantry
owed her a duty of reasonable care under the circumstances. (See Doc. 15, at 10.)
Ms. Bell further alleges that the Pantry breached this duty, which caused or directly
contributed to her injuries and damages. (Id., at 11.)
The Scheduling Order in effect in this case contains a December 14, 2012,
deadline to amend the pleadings.1 (Doc. 31, at 6.) Ms. Bell filed the present
motion on September 13, 2013, some nine months past the deadline to amend.
(Doc. 140.) She contends that during discovery, she received reports detailing

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The Scheduling Order was amended twice – on February 15, 2013 (Doc. 88),
and on June 25, 2013 (Doc. 117). On neither occasion did Ms. Bell request the deadline
to amend pleadings be extended.
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“other similar incidents which vehicles have caused property damage or personal
injury on The Pantry, Inc. property that could have reasonably been prevented by
the very protective measures [she] claims were not used on the subject premises.”
(Doc. 141, at 3.) She further contends that “[p]rior to the production of the
incident reports, [she] was only aware of one other incident that occurred in 2009.”
(Id.) Plaintiff’s motion makes no mention of when the documents at issue were
produced.
ANALYSIS
The deadlines contained in a Scheduling Order are intended to facilitate the
just and orderly litigation of a case, and are not to be simply ignored. White v.
Union Pacific R. Co., No. 09-1407, EFM-KGG, 2012 WL 380245, at *2 (D. Kan.
February 6, 2012). Requests to extend deadlines may, however, be granted upon a
showing of good cause. See Denmon v. Runyon, 151 F.R.D. 404, 407
(D.Kan.1993) (stating that a motion to amend filed after the deadline established in
the scheduling order must meet the standard of “good cause” under Fed.R.Civ.P.
16(b)).
When the deadline for amending pleadings set in
the scheduling order has passed, as is the case here,
Federal Rule of Civil Procedure 16(b)(4) is implicated.
Rule 16(b)(4) provides that a scheduling order ‘may be
modified only for good cause and with the judge's
consent.’
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...
. . . Judges in this District have consistently applied
a two-step analysis based on both Rule 16(b) and Rule
15(a) when deciding a motion to amend a complaint filed
past the scheduling order deadline. Thus, when a motion
to amend is filed beyond the scheduling order deadline,
this Court will first determine whether the moving party
has established ‘good cause’ within the meaning of Rule
16(b)(4) so as to justify allowing the untimely motion.
Only after determining that good cause has been
established will the Court proceed to determine if the
more liberal Rule 15(a) standard for amendment has been
satisfied.
To establish good cause under Rule 16(b)(4), ‘the
moving party must show that the amendment deadline
could not have been met even if it had acted with due
diligence.’ ‘Carelessness is not compatible with a
finding of diligence and offers no reason for a grant of
relief.’ Furthermore, the lack of prejudice to the
nonmovant does not show ‘good cause.’ A district
court's determination as to whether a party has
established good cause sufficient to modify a scheduling
order amendment deadline is within the court's
discretion, and will be reviewed only for an abuse of
discretion.
Likewise, the ultimate decision whether to allow a
proposed amendment addresses the sound discretion of
the court. In exercising its discretion, the court must
keep in mind that the Federal Rules of Civil Procedure
are designed to facilitate decisions on the merits rather
than on pleading technicalities. Indeed, the Tenth Circuit
has recognized that Rule 15 is intended ‘to provide
litigants ‘the maximum opportunity for each claim to be
decided on its merits rather than on procedural niceties.’’
Martin K. Eby Constr. Co. Inc. v. OneBeacon Ins. Co., 2011 WL 5837234 (D.
Kan. Nov. 21, 2011) (citing Carefusion 213, LLC v. Professional Disposables,
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Inc., No. 09–2616–KHV–DJW, 2010 WL 4004874, at *3–4 (D.Kan. Oct. 12,
2010)).
As stated above, Bell contends that during discovery, she received reports
detailing “other similar incidents which vehicles have caused property damage or
personal injury on The Pantry, Inc. property that could have reasonably been
prevented by the very protective measures [she] claims were not used on the
subject premises.” (Doc. 141, at 3.) She further contends that “[p]rior to the
production of the incident reports, [she] was only aware of one other incident that
occurred in 2009.” (Id.) She does not, however, indicate when these written
reports were received or explain why they were not requested in a more timely
manner.
The Pantry states that Ms. Bell was made aware of the personal injury and
property damage incidents at issue during the deposition of the corporate
representative of the Pantry on July 25, 2013. (Doc. 143, at 6.) Ms. Bell offers no
explanation as to why she waited more than seven weeks thereafter to file the
present motion, which was already months past the deadline in the Scheduling
Order. Timeliness is not a concern of form over substance. The present motion
was filed 17 days before the end of discovery and three weeks before the Pretrial
Conference. Introducing a new substantive claim would require additional
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discovery, thus causing significant delay in the disposition of the case.
The Pantry argues that “Bell does not offer any explanation in her motion as
to why the time to amend should be extended, why her motion was not timely
filed, or why she did not seek to extend the deadline to amend the pleadings on the
two occasions the scheduling order was amended.” (Doc. 143, at 6.) The Court
agrees and finds these deficiencies to be fatal to Ms. Bell’s requested amendment
pursuant to the two-step analysis based on Fed.R.Civ.P. 16(b) and 15(a). Ms. Bell
has failed to demonstrate “some reasonable basis for noncompliance within the
time specified.” Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987). Because
she has made no effort to establish “good cause” to amend the Scheduling Order,2
her motion is DENIED.
For the reasons set forth above, the “Motion for Leave to Amend ThirdParty Complaint to Add a Punitive Damage Claim Out of Time” (Doc. 140) filed
by Defendant, Cross-Claimant/Third-Party Plaintiff Jamie Bell is hereby DENIED.

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The Court acknowledges that the time has not expired for Ms. Bell to file her
reply to the Pantry’s response to her Motion to Amend. Any such “good cause” argument
that could potentially be contained in the reply brief, however, will not be considered by
the Court. See Rice v. Deloitte Consulting LLP, 2013 WL 3448198, *3 (D. Colo. July 9,
2013) (citing Alcohol Monitoring Sys. v. Actsoft, Inc., 682 F.Supp.2d 1237, 1242 (D.
Colo. 2010) (holding that arguments not raised in an original motion, but rather addressed
for the first time in a reply brief, are waived).
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IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 4th day of October, 2013.
S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge

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