White v. Union Pacific Railroad Company

Filing 119

MEMORANDUM AND ORDER denying 113 Motion for Leave to File First Amended Complaint; denying 114 Motion for Leave to Designate Liability Expert. Signed by Magistrate Judge Kenneth G. Gale on 2/5/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JACOB WHITE,
Plaintiff,
v.
UNION PACIFIC RAILROAD
COMPANY,
Defendant.

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Case No. 09-1407-EFM-KGG

ORDER ON PLAINTIFF’S MOTIONS TO AMEND
AND FOR LEAVE TO DESIGNATE EXPERT
Before the Court are Plaintiff’s Motion for Leave to File First Amended
Complaint (Doc. 113) and Motion for Leave to Designate Liability Expert (Doc.
114). Having reviewed the submissions of the parties, in addition to the procedural
history of this matter, the Court DENIES both motions.
FACTS
This is an action under the Federal Employers’ Liability Act, 45 U.S.C. § 50,
et seq., for personal injury to Plaintiff. The case was filed in December, 2009. On
August 16, 2010, this Court entered a Second Revised Scheduling Order requiring
Plaintiff to make his expert designations under Rule 26(a)(2) no later than
November 1, 2010. (Doc. 35.) The deadline passed without expert designations.

On February 15, 2011, the parties jointly moved for a continuance of the unexpired
deadlines. (Doc. 64.) Following a status conference, the Court entered its Third
Revised Scheduling Order on March 29, 2011. (Doc. 77.) That Order included the
following paragraph:
The deadline to exchange disclosures required by Fed. R.
Civ. P. 26(a)(2), including reports from retained experts,
has passed. The parties will discuss re-setting these
deadlines based on the current status of discovery. If
agreed, counsel will provide new dates to the Court for
inclusion in an order by April 20, 2011. In the absence
of an agreement, any party may file a motion to reset
these deadlines, such motion to be filed on or before
April 20, 2011.
(Doc. 77, at 3, emphasis in original). The parties never requested a re-setting of
that deadline.
On September 30, 2011, Plaintiff served on Defendant “Supplemental Rule
26 Disclosures.” (Doc. 85-1.) In those disclosures, Plaintiff identified certain of
his treating physicians, previously identified as fact witnesses, who would be
called to present expert opinion testimony under Fed.R.Evid. 702, 703 and 705.
Defendant moved the Court for, and was granted, an Order striking these
designations as untimely. (Doc. 98.) The Court found that Plaintiff had failed to
establish good cause for what would have required an amendment to the
Scheduling Order. (Id., at 3-4.)
The parties filed their Joint Motion for Extension of Third Revised

Scheduling Order Deadlines on February 12, 2012, because Plaintiff required
additional surgery, which was scheduled for July, 2012. (Doc. 101.) The parties
requested additional time “to conduct further discovery regarding damages”
because of “Plaintiff’s most recent and significant medical developments . . . .”
(Id., at 2.) The parties contended that they were in agreement “that an extension
of all damage related deadlines and of the discovery cut-off deadline will permit
adequate time for Plaintiff’s treatment and pre-trial discovery related thereto . . . .”
(Id., at 2-3, emphasis added.)
This Court granted that motion on February 24, 2012, and suspended “the
deadline to complete discovery, to complete Rule 35 examinations, and to file
dispositive motions.” (Doc. 104, at 1.) A status conference was scheduled for
August 14, 2012, to reset the deadlines “and to discuss deadlines for the
production of additional expert reports concerning medical issues.” (Id.,
emphasis added.) The conference was held as scheduled, but the Court set a
follow-up conference for October 23, 2012. (Doc. 108, text entry.)
That additional conference resulted in the Revised Scheduling Order entered
on October 20, 2012. (Doc. 112.) That Scheduling Order provided a March 31,
2013, deadline for Plaintiff to make expert disclosures “on the issue of damages . .
. .” (Id., at 1.) Plaintiff was given a deadline of November 2, 2012, by which to
file a motion to extend the deadline to serve liability expert disclosures. (Id., at 2.)

The present motions were filed by this deadline. The Revised Scheduling Order
did not include a revised date by which to move to amend the pleadings. (See
generally, id.)
Plaintiff now moves the Court for an Order allowing him to amend his
Complaint “to make more specific the allegations of Defendant’s liability under the
FELA, which incorporates regulations for safety appliances on railcars.” (Doc.
113-1, at 2.) Plaintiff admits that his original Complaint contains allegations that
“Defendant negligently failed to provide Plaintiff with adequate equipment to
perform his job, a reasonably safe place to work, and reasonably safe conditions
for work.” (Doc. 113-1, at 3; Doc. 1, at ¶ 6.) Plaintiff also moves for leave to
designate a liability expert. (Doc. 115.) Plaintiff contends the requests are
necessary because of the “change in circumstances regarding the permanence of
Plaintiff’s injuries” discovered after his most recent surgery as well as the results
of an inspection of the railcar at issue on January 31, 2012, “which evidenced
potential violations of the safety standards.” (Id., at 4.)
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.’
...
. . . 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,
Inc., No. 09–2616–KHV–DJW, 2010 WL 4004874, at *3–4 (D.Kan. Oct. 12,
2010)).
As stated above, Plaintiff contends the requests are necessary because of the
“change in circumstances regarding the permanence of Plaintiff’s injuries”
discovered after his most recent surgery as well as the results of an inspection of
the railcar at issue on January 31, 2012, “which evidenced potential violations of
the safety standards.” (Id., at 4.)
The Court is not persuaded that either of these reasons provide the requisite
“good cause” to amend the Scheduling Order. While the Court does not doubt that
Plaintiff continues to learn more about the nature, severity, and permanence of his
injuries, such information is not relevant to the issue of liability in this case. Thus,
Plaintiff’s most recently learned information regarding his injuries does not
provide good cause to amend the Scheduling Order and/or to designate a liability

expert. Plaintiff has failed to demonstrate “some reasonable basis for
noncompliance within the time specified.” Putnam v. Morris, 833 F.2d 903, 905
(10th Cir. 1987).
On the other hand, the inspection of the railcar discussed by Plaintiff does
relate directly to the issue of liability. Even so, the inspection occurred a full nine
months before Plaintiff requested amendments to his Complaint and/or sought to
add a liability expert. Plaintiff has offered no valid reason or excuse for failing to
bring the present motions to the Court in a more timely fashion.1
Finally, Plaintiff himself admits that “the acts of negligence alleged in [his]
original Complaint are broad enough to encompass Defendant’s violations of the
statutes and regulations . . . .” (Doc. 113-1, at 5; Doc. 115, at 4.) Thus, in the
Court’s purview, the requested amendment to the Complaint is unnecessary.
For the reasons set forth above, Plaintiff’s Motion for Leave to File First
Amended Complaint (Doc. 113) and Motion for Leave to Designate Liability
Expert (Doc. 114) are hereby DENIED.

1

The denial of the present motion will not prevent Plaintiff from prosecuting
those allegations at trial or including them as contentions in the Pretrial Order, if the
claims are reasonably within those contained in the Complaint.

IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 5th day of February, 2013.
S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge