Wink v. NaturMed, Inc.
Filing
47
MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge H. Brent Brennenstuhl on 3/24/2017 granting 37 Motion for Leave to File an Amended Answer and Cross-Claim. The Clerk of the Court is directed to file the proposed amended answer and cross-claim. cc: Counsel (JBM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:16-CV-00090-JHM
KAYE WINK, Individually and as next of
Kin of Donald Wink, deceased, and also on
behalf of all similarly situated persons
PLAINTIFF
VS.
NATURMED, INC., d/b/a THE
INSTITUTE FOR VIBRANT LIVING, an
Indiana Corporation, and BACTOLAC
PHARMACEUTICAL, INC., a New York
Corporation
DEFENDANTS
MEMORANDUM, OPINION
AND ORDER
BACKGROUND
Defendant, NaturMed, Inc., has moved the Court for leave to file an amended answer and
cross-claim (DN 37). Bactolac Pharmaceutical, Inc. has filed a memorandum in opposition (DN
40). NaturMed has filed a reply memorandum (DN 41) with supporting documents (DN 43
SEALED) and a supplement to its reply memorandum (DN 46).
NATURE OF THE MOTION
On July 13, 2016, Plaintiff filed this statewide class action lawsuit alleging that
NaturMed’s dietary supplement products made customers sick and it’s product called All Day
Energy Greens was the reason for Donald Wink’s death on October 27, 2015 (DN 1). On
September 27, 2016, the Court entered a scheduling order that included an October 14, 2016
deadline for all motions to amend pleadings and join additional parties (DN 23).
On October 4, 2016, Plaintiff filed an amended complaint that added Bactolac as a
defendant and raised additional claims (DN 25). Plaintiff alleges that Bactolac manufactures and
sells to NaturMed the dietary supplement products, including All Day Energy Greens, that
NaturMed then sells to the public (Id.). On November 11, 2016, Bactolac filed an answer to the
amended complaint (DN 33). The scheduling order deadlines have not been amended since
Bactolac joined this action.
On February 7, 2017, NaturMed filed its motion for leave to file an amended answer and
cross-claim against Bactolac (DN 37). NaturMed asserts that based on its investigation of the
claims and issues presented in this class action lawsuit, it has recently identified certain crossclaims against Bactolac arising out of its manufacture of product, including All Day Energy
Greens, for NaturMed (Id.). NaturMed explains that the facts surrounding the manufacture and
delivery of the alleged defective product from Bactolac to NaturMed are critical to what entity
could be responsible for Plaintiff’s allegations (Id.). NaturMed asserts that adjudicating its
claims for indemnity and damages against Bactolac in this matter will promote justice, judicial
economy, and avoid inconsistent rulings (Id.). NaturMed contends that the counter-claims will
not delay discovery in this matter (Id.).
Bactolac objects to the motion because NaturMed has not shown “good cause” for its
failure to meet the October 14, 2016 deadline for filing motions to amend pleadings and join
additional parties (DN 40 citing Fed. R. Civ. P. 16(b)(4) and Leary v. Daeschner, 349 F.3d 888,
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909 (6th Cir. 2003)). Bactolac asserts that NaturMed has shown a lack of diligence in bringing
the counterclaim because the allegations were known by NaturMed prior to the October 14, 2016
deadline (DN 40).
In its reply, NaturMed argues that Bactolac cannot demonstrate that prejudice will result
if the Court grants leave to file the proposed amended answer and cross-claim against Bactolac
(DN 41). NaturMed points out that it filed this motion less than three months after Bactolac filed
its answer, no trial date has been set, and the parties are in the early stages of discovery (Id.).
NaturMed asserts that its crossclaims will not significantly expand the scope of issues for
discovery or trial (Id.). NaturMed contends that allowing its crossclaims to proceed in this case
will avoid the unnecessary duplication and waste of judicial resources that would result if
NaturMed were instead required to file a separate action against Bactolac to assert the same
claims (Id.). NaturMed claims that it has been reasonably diligent in the investigation of its
counterclaims considering the tens of thousands of documents that its counsel has reviewed (Id.).
NaturMed asserts that Bactolac has delayed NaturMed’s investigation by withholding important
information such as batch sheets concerning the products Bactolac manufactured for NaturMed
(Id.).
In its supplement to the reply, NaturMed reports that Bactolac has asked Plaintiff and
NaturMed to agree to extend some of the deadlines in the scheduling order (DN 46). NaturMed
points out that Bactolac is requesting that the deadline for filing motions to amend pleadings and
add parties be extended from October 14, 2016 to April 14, 2017 (Id.). NaturMed suggests that
Bactolac request to extend that deadline is inconsistent with its opposition to NaturMed’s motion
for leave to file an amended answer and cross-claim (Id.).
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DISCUSSION
The issue of amendment of a pleading is directly governed by Rule 15(a). However, if
the scheduling order's deadline for amending pleadings has passed, a plaintiff first must show
good cause under Rule 16(b)(4) before a court will consider whether the proposed amendment is
proper under Rule 15(a). Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003) (citing Sosa v.
Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998)). “The primary measure of Rule 16’s
‘good cause’ standard is the moving party's diligence in attempting to meet the case management
order's requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (citations
omitted).
“Another relevant consideration is possible prejudice to the party opposing the
modification.”
Id.
As two recent opinions from the Western District of Kentucky have
observed, the evaluation of Rule 16’s “good cause is not co-extensive with an inquiry into the
propriety of the amendment under . . . Rule 15.” Woodcock v. Kentucky Dept. of Corr., No.
5:12-CV-00135-GNS-LLK, 2016 U.S. Dist. LEXIS 87241, at *3 (W.D. Ky. July 6, 2016)
(quoting Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995)); see also Hutson, Inc. v.
Windsor, No. 5:12-CV-GNS-LLK, 2015 U.S. Dist. LEXIS 131033, at *3 (W.D. Ky. Sept. 29,
2015). This “good cause” standard “primarily considers the diligence of the party seeking the
amendment. In other words, in order to demonstrate ‘good cause’ a party must show that despite
their diligence the time table could not reasonably have been met.” Id.
After considering the circumstances and arguments of NaturMed and Bactolac, the
undersigned concludes that NaturMed has demonstrated “good cause.” Plaintiff amended her
claims and joined Bactolac just ten days before the deadline in the scheduling order expired.
Despite NaturMed’s diligence in the investigation of possible cross-claims against Bactolac, the
October 14, 2016 deadline in the scheduling order could not have reasonably been met.
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Moreover, given the tens of thousands of pages of material that NaturMed apparently reviewed
and the challenges that it faced in obtaining certain documents from Bactolac, NaturMed was
diligent in filing its motion for leave to file an amended answer and cross-claim against Bactolac.
Additionally, there will be no prejudice to Bactolac if the motion is granted because the
deadlines in the scheduling order can be extended to accommodate Bactolac’s circumstances.
The court should freely give leave to amend “when justice so requires.” Fed.R.Civ.P.
15(a)(2). In assessing the interests of justice, the Court should consider several factors, including
Aundue delay in filing, lack of notice to the opposing party, bad faith by the moving party,
repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing
party, and futility of amendment.@ Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (quoting
Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)); see also Colvin v. Caruso, 605 F.3d 282,
294 (6th Cir. 2010) (“A motion to amend a complaint should be denied if the amendment is
sought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing
party, or would be futile.”). Notably, Bactolac has not raised any of the above factors in its
objection to the proposed amended answer and cross-claim.
Further, the undersigned has
considered the above factors and concludes the proposed amended answer and cross-claims are
not sought in bad faith, for dilatory purposes, will result in undue delay or prejudice to the
opposing parties, or would be futile. Therefore, justice requires granting NaturMed leave to file
the proposed amended answer and cross-claim.
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ORDER
IT IS HEREBY ORDERED that NaturMed’s motion for leave to file an amended
answer and cross-claim against Bactolac (DN 37) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court is directed to file the proposed
amended answer and cross-claim (DN 37-1).
March 24, 2017
Copies to:
Counsel of Record
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