Olivares v. National Railroad Passenger Corporation, et al
Filing
73
MEMORANDUM AND ORDER granting 63 Plaintiff's Motion for Leave of Court to File Second Supplemental and Amended Complaint for Damages. Plaintiff shall electronically file his proposed Second Supplemental and Amended Complaint for Damages within seven (7) days of the date of this Order. It is further ordered that the final Pretrial Conference, previously set for 9/21/2018, is hereby continued to 9/24/2018 at 1:30 PM (central time). Participating counsel must dial 1-888-363-4749 and enter Access Code 4901386 to join the conference. The deadline for submitting the proposed pretrial order is extended to 9/17/2018. Signed by Magistrate Judge Teresa J. James on 8/24/2018. (byk)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JORGE OLIVARES,
Plaintiff,
v.
NATIONAL RAILROAD PASSENGER
CORPORATION a/k/a AMTRAK,
BNSF RAILWAY COMPANY, and
CIMARRON CROSSING FEEDERS,
LLC,
Defendants.
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Case No. 17-cv-2397-CM-TJJ
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave of Court to File Second
Supplemental and Amended Complaint for Damages (ECF No. 63). Pursuant to Fed. R. Civ. P.
15(a), Plaintiff seeks leave to amend and supplement his prior complaint to assert a claim under
the Locomotive Inspection Act against Amtrak, as set forth in his proposed Second Supplemental
and Amended Complaint for Damages. In support of his motion, Plaintiff alleges that at the time
of the train derailment the illumination provided by the headlight mounted to the lead locomotive
for the train of which Plaintiff was a crewmember failed to comply with applicable federal
regulations including, but not limited to 49 C.F.R. 229.125, in violation of the Locomotive
Inspection Act (“LIA”).1 Plaintiff states in his motion that recent discovery warrants the
supplementation and amendment of his complaint.
1
45 U.S.C. § 20701, et seq.
Defendants National Railroad Passenger Corporation, d/b/a Amtrak (“Amtrak”) and
BNSF Railway Company (“BNSF”) oppose the motion. They argue that Plaintiff makes no effort
to establish good cause for his much belated attempt to add the new LIA claim against Amtrak—
a claim Plaintiff seeks to assert months after the November 22, 2017 scheduling order deadline
for filing motions to amend the pleadings. Amtrak and BNSF also argue Plaintiff does not
mention any discovery that he conducted or any “diligent efforts” on his part to establish or
timely investigate the basis for the new headlight-based LIA claims. According to Amtrak and
BNSF, Plaintiff is merely riding the coattails of the intervenor train passengers in another case
arising from the same derailment, National Railroad Passenger Corp., et al. v. Cimarron
Crossing Feeders, (the “Main Derailment case”).2
Once the deadline for amendment as a matter of course under Fed. R. Civ. P. 15(a)(1) has
passed, “a party may amend its pleading only with the opposing party’s written consent or the
court’s leave.”3 If the party seeking leave to amend its pleading files its motion after the
deadline set in the scheduling order, the moving party must also satisfy Rule 16(b)(4)’s good
cause requirement.4 A party seeking leave to amend the pleadings after expiration of the
scheduling order deadline therefore must demonstrate both: “(1) good cause for seeking
modification [of the scheduling order’s deadline] under Fed. R. Civ. P. 16(b)(4) and (2)
satisfaction of the Rule 15(a) standard.”5
2
D. Kan. Case No. 16-cv-1094-JTM.
3
Fed. R. Civ. P. 15(a)(2).
4
See Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass’n, 771 F.3d 1230, 1241 (10th Cir. 2014)
(holding that “parties seeking to amend their complaints after a scheduling order deadline must establish
good cause for doing so”).
5
Id. at 1240.
2
Fed. R. Civ. P. 16(b)(4) provides that deadlines set in the scheduling order “may be
modified only for good cause and with the judge’s consent.” The Tenth Circuit has indicated that
Rule 16’s good cause requirement may be satisfied “if a plaintiff learns new information through
discovery or if the underlying law has changed,” but it is not satisfied “[i]f the plaintiff knew of
the underlying conduct but simply failed to raise [the] claims.”6 If the moving party meets the
Rule 16(b)(4) good cause standard, the court then considers whether the requested amendment
should be allowed under Rule 15(a).
Rule 15(a)(2) instructs the court to “freely give leave [to amend the pleadings] when
justice so requires.” The Supreme Court has listed the following as reasons justifying denial of
leave to amend under Rule 15: “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 amendment,
etc.”7 Untimeliness is a sufficient reason to deny leave to amend, especially when the party
filing the motion has no adequate explanation for the delay.8 “A party who delays in seeking an
amendment is acting contrary to the spirit of the rule and runs the risk of the court denying
permission because of the passage of time.”9 The longer the delay, “the more likely the motion to
amend will be denied, as protracted delay, with its attendant burdens on the opponent and the
court, is itself a sufficient reason for the court to withhold permission to amend.”10
6
Id.
7
Foman v. Davis, 371 U.S. 178, 182 (1962).
8
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365–66 (10th Cir. 1993).
9
Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 (10th Cir. 2006).
10
Id. (citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004); USX Corp. v. Barnhart,
395 F.3d 161, 167 (3d Cir. 2004)).
3
Plaintiff’s one-page motion, with no memorandum in support or reply brief, offers one
lone sentence attempting to show good cause for his untimely request to amend his complaint. It
states that “[r]ecent [d]iscovery in the captioned proceedings has revealed information
warranting supplementation and amendment.” This minimal and vague recitation provides no
explanatory details concerning Plaintiff’s efforts to obtain, or the timing of, the referenced
“recent discovery.” Nor does Plaintiff’s motion shed any light on why his proposed locomotive
headlight LIA claim and allegations were not asserted in his First Supplemental and Amended
Complaint for Damages, which he requested leave to file on April 23, 2018, two months before
his present motion. The Court, however, notes from the docket that Amtrak and BNSF
previously moved to consolidate discovery on liability issues with the Main Derailment case, and
the order denying consolidation specifically states that it does not preclude the parties from
sharing discovery on common liability issues between the two cases (ECF No. 33). The Court
presumes Plaintiff’s present motion seeking leave to add the proposed LIA claim against Amtrak
is the result of recent discovery conducted in the Main Derailment case, which led to headlightbased claims being asserted in that case. Between the time Plaintiff filed his first motion and his
second pending motion to amend, the Court held the initial pretrial conference in the Main
Derailment case on May 14, 2018, at which Amtrak and BNSF objected to Intervenor train
passengers’ assertion of locomotive headlight claims based upon 49 C.F.R. 229.125 in the
proposed pretrial order as not previously pled. The Court ultimately allowed the headlight-based
claims in the Main Derailment case.11
11
See Pretrial Order on Liability Issues at 15 (ECF No. 461) in the Main Derailment Case (16-cv1094-JTM).
4
Despite Plaintiff’s marginal showing of good cause, the Court will grant Plaintiff’s
motion requesting leave to amend his complaint to add the proposed locomotive headlight LIA
claim and allegations. Plaintiff filed his present motion on June 26, 2018, nearly seven months
after the scheduling order deadline. However, this was not Plaintiff’s first motion seeking leave
to amend his complaint after the scheduling order deadline. Plaintiff filed his first motion (ECF
No. 50) on April 23, 2018—months after the scheduling order deadline and in response to
Defendant Amtrak’s Motion for Judgment on the Pleadings. After being granted leave, Plaintiff
filed his First Supplemental and Amended Complaint for Damages (ECF No. 55) on June 4,
2018. One of the allegations added by that amended complaint was that Amtrak failed “to
provide and/or maintain reasonably safe headlights (i.e., properly aligned, sufficient lumens, etc.)
on the lead locomotive of its train.”12 Amtrak and BNSF therefore should not be surprised by the
addition of Plaintiff’s proposed LIA claim and allegations. In addition to Plaintiff’s first
amended complaint already asserting headlight-based allegations, the federal regulation
referenced by Plaintiff’s proposed amendment was an issue raised in the Main Derailment case.
Amtrak and BNSF will not be unduly prejudiced by the requested amendment at this point in this
case, particularly given the short amount of time (22 days) between the filing of Plaintiff’s First
Supplemental and Amended Complaint for Damages and his present motion, as well as Amtrak
and BNSF’s knowledge of the discovery precipitating the headlight-based claims asserted in the
Main Derailment case. Finally, keeping in mind Rule 15’s directive to “freely give leave when
justice so requires,” the Court concludes that justice is best served by allowing the proposed
amendment.
12
Pl.’s First Supp. & Am. Complt. ¶ 36(g) (ECF No. 55).
5
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Leave of Court to File
Second Supplemental and Amended Complaint for Damages (ECF No. 63) is GRANTED.
Plaintiff shall electronically file his proposed Second Supplemental and Amended Complaint for
Damages within seven (7) days of the date of this Order.
IT IS FURTHER ORDERED THAT the final Pretrial Conference, previously set for
September 21, 2018, is hereby continued to September 24, 2018 at 1:30 p.m. (central time).
Participating counsel must dial 1-888-363-4749 and enter Access Code 4901386 to join the
conference. The deadline for submitting the proposed pretrial order is extended to September
17, 2018.
IT IS SO ORDERED.
Dated this 24th day of August 2018, at Kansas City, Kansas.
Teresa J. James
U. S. Magistrate Judge
6
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