Gray v. Javius et al

Filing 41

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 8/24/2015 granting 22 24 Motion for Leave to Amend Complaint. Clerk of Court directed to file Plaintiff's First Amended Complaint (DN 22 - Exhibit G) in the record as of this date . Defendants granted thirty (30) days from this date to answer or otherwise respond to Plaintiff's First Amended Complaint. Defendants' motions for judgment on the pleadings (DNs 20 , 31 ) and motion for summary judgment (DN 32 ) are DENIED as moot, without prejudice, with leave to refile. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
JEFF GRAY,

Plaintiff,

v.

Civil Action No. 3:13-cv-00905-DJH

EDWIN L. JAVIUS, and EDEQUITY INC.,

Defendants.

* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Jeff Gray seeks leave pursuant to Fed. R. Civ. P. 15(a) and 16(b) to amend his
complaint to add additional facts and claims. Defendants Edwin L. Javius and EdEquity Inc.
(“Defendants”) oppose the proposed amended complaint because it was filed after the deadline
set by the Court’s Scheduling Order. (Docket No. 13). Because Gray has demonstrated good
cause for his failure to meet the Court’s deadline, and because Defendants will not be
significantly prejudiced, Gray’s motion to amend will be granted.
I.

BACKGROUND

Gray claims that Defendants infringed the copyright he holds on the educational book If
She Only Knew Me1 by incorporating the book into Defendants’ presentations given to schools
and conferences throughout the United States. (D.N. 1; D.N. 24 PageID # 501) The Court’s
Scheduling Order required that amended pleadings be filed by June 15, 2014 and fact discovery
to be complete by November 30, 2014. (D.N. 13) On October 20, 2014, Gray took the
deposition of Defendant Javius. During Javius’s deposition and through research conducted

1

JEFF GRAY & HEATHER THOMAS, IF SHE ONLY KNEW ME (Rocket Publishing 2005).
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during fact discovery, Gray discovered additional facts related to his copyright claims and
alleged fraud in the presentations that he claims infringed on his copyright. (D.N. 24) Gray now
seeks to amend his complaint to include additional facts related to willful copyright infringement
and false association/designation of origin and to add a new claim for unfair
competition/deceptive practices. (D.N. 24)
II.

STANDARD

Leave to amend a complaint after a response is filed is governed by Fed. R. Civ. P. 15(a).
However, if a motion to amend is filed after a deadline set by a scheduling order, then Fed. R.
Civ. P. 16 must also be satisfied. The Sixth Circuit addressed the intersection between Fed. R.
Civ. P. 15(a) and 16(b) in Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003). In Leary, the Sixth
Circuit made it clear that “[o]nce the scheduling order’s deadline passes, a [party] first must
show good cause under Rule 16(b) for failure to earlier seek leave to amend before a court will
consider whether amendment is proper under Rule 15(a).” 349 F.3d at 909. The Sixth Circuit
also explained that a party seeking to file a motion to amend after the deadline must show that
“despite their diligence they could not meet the original deadline.” Id. at 907. See also Korn v.
Paul Revere Life Ins. Co., 382 Fed.App’x 443, 449 (6th Cir. 2010) (citing Leary, 349 F.3d at
905–09); Shane v. Bunzl Distribution USA, Inc., 275 Fed.App’x 535, 536 (6th Cir. 2008) (citing
Leary, 349 F.3d at 906–07).
“The thrust of rule 15 is to reinforce the principle that cases should be tried on their
merits rather than the technicalities of the pleadings.” Tefft v. Seward, 689 F.2d 637, 639 (6th
Cir. 1982) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957)). The Court should “freely give
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leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). Furthermore, delay that is not
intended to harass or cause ascertainable prejudice should not, on its own, prevent amendment of
a pleading. Moore v. City of Paducah, 790 F.2d 557, 561 (6th Cir. 1986) (citing Buder v. Merrill
Lynch, Pierce, Fenner & Smith, 644 F.2d 690 (8th Cir.1981)).
III.

ANALYSIS

The Defendants do not argue that they will suffer any significant prejudice from the
proposed amendment, other than delay.2 Rather, Defendants contend that it is Gray’s burden to
demonstrate good cause because he seeks amendment after the deadline contained in the Court’s
Scheduling Order. (D.N. 29) However, good cause is shown if Gray demonstrates, despite his
diligence, that he was unable to amend his complaint prior to the deadline. It is undisputed that
Gray did not depose Defendant until October, 20, 2014, months after the deadline to amend the
pleadings. (D.N. 24 PageID # 507) It was during this deposition that Gray discovered new facts
that, in part, give rise to the present motion.3 Other facts were discovered by Gray in November,
2014. (D.N. 24 PageID #507) While the Defendants argue that Gray was dilatory in his pursuit
of these facts, they do not contend that Gray delayed Javius’s deposition. Additionally, all facts
were discovered prior to the November 30, 2014 deadline for fact discovery. (D.N. 13) The
discovery of these facts, after the deadline to amend the pleading and absent any bad faith or lack
2

Defendants summarily assert a futility defense in opposition to the proposed amendment.
(D.N. 29 PageID # 531–32) Yet, Defendants do not provide the Court with any arguments
regarding futility beyond the conclusory statement that Gray did not sufficiently plead his new
allegations. (Id.) If the Defendants wish to assert such an argument, they are free to do so in
subsequent motion practice.
3
Defendants appear to concede that Gray gained knowledge of certain facts that give rise to the
motion to amend at the Javius deposition. (D.N. 29 PageID # 531)
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of diligence by Gray, amounts to good cause for Gray’s failure to amend his complaint prior to
the deadline. Invesco (N.A.), Inc., v. Stephen M. Johnson, et al., No. 307-cv-715, 2008 WL
4683020 at *1–2 (W.D. Ky. Oct. 22, 2008).
Further, the Court finds that the proposed amendments will not require significant
additional discovery. Gray contends that no additional discovery is required. (D.N. 24 PageID #
508) Defendants have not presented the Court with any reason to believe that any additional
discovery required by the proposed amendment will be substantial. As a result, any prejudice to
the Defendants is minimal.
The Court finds that the proposed amendments will allow this matter to be decided on the
merits rather than the technicalities of the pleadings. Tefft, 689 F.2d at 639. Moreover, the Court
determines that good cause for Gray’s failure to comply with the Scheduling Order (D.N. 13) has
been shown. Accordingly, and the Court being otherwise sufficiently advised, it is hereby
ORDERED that the motion to amend (D.N. 22, 24) is GRANTED. The Clerk of Court
is DIRECTED to file Plaintiff’s First Amended Complaint (D.N. 22-Exhibit G) in the record as
of this date. Defendants are granted thirty (30) days from this date to answer or otherwise
respond to Plaintiff’s First Amended Complaint. Defendants’ motions for judgment on the
pleadings (D.N. 20, 31) and motion for summary judgment (D.N. 32) are DENIED as moot,
without prejudice, with leave to refile.
August 24, 2015

David J. Hale, Judge
United States District Court
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