Boyd, et al v. Boeing Company, et al
ORDER AND REASONS denying 102 Motion for Reconsideration; denying 103 Motion to Strike. Signed by Judge Lance M Africk on 2/26/2016. (blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATSY S. BOYD ET AL.
BOEING COMPANY ET AL.
ORDER AND REASONS
Before the Court are two motions 1 filed by defendants, Lockheed Martin Corporation
(“Lockheed”) and General Dynamics Corporation (“General Dynamics”). 2 The first motion asks
the Court to rescind its order 3 permitting plaintiffs to amend their complaint two months after the
Court-mandated September 14, 2015 pleading amendment deadline. 4 The Court granted plaintiffs
permission to amend their complaint in order to add Lockheed and General Dynamics as
The second and corresponding motion requests that Lockheed and General Dynamics be
stricken from plaintiffs’ amended complaint and dismissed from this lawsuit. 5 Both motions
advance substantially the same argument: that the Court erroneously permitted plaintiffs to amend
their complaint without demonstrating “good cause” for the need to modify the scheduling order.
Plaintiffs oppose 6 the motions. For the following reasons, both motions are denied.
R. Doc. Nos. 102, 103.
The Court granted General Dynamics’ motions to join Lockheed’s motions. See R. Doc. No.
R. Doc. No. 59.
See R. Doc. No. 102-1.
See R. Doc. No. 103-1.
R. Doc. No. 111.
Decedent, Wheldon Boyd (“Boyd”), was a career aircraft mechanic at Belle Chasse Air
Force Base. He was diagnosed with alleged asbestos-related mesothelioma in December 2013 and
passed away in March 2014. Eight months later, in November 2014, plaintiffs—Boyd’s heirs—
sued nine defendants in state court, alleging that they were responsible for Boyd’s illness and
death. 7 The nine defendants are manufacturers, sellers, suppliers, distributors, and contractors who
allegedly caused Boyd to come into contact with asbestos containing products.
Defendant, Boeing Company, removed 8 plaintiffs’ lawsuit to federal court in January 2015.
The case was initially assigned 9 to Judge Jay Zainey. Following a scheduling conference on July
30, 2015, Judge Zainey issued a scheduling order 10 which set a September 14, 2015 deadline for
amending pleadings. Plaintiffs did not move to amend their complaint before that date.
In November 2015, plaintiffs filed an unopposed motion to continue the trial date on the
ground that “[d]uring discovery of this case, it has become clear that additional parties are
necessary.” 11 Plaintiffs explained that because Boyd had died before being interviewed or
deposed, plaintiffs’ counsel had “been piecing together Mr. Boyd’s work history through
interviews with Mr. Boyd’s co-workers.” 12 In the course of those interviews, plaintiffs’ counsel
learned of additional aircrafts allegedly worked on by Boyd. Plaintiffs requested the continuance
in order to add the manufacturers of those aircrafts as defendants and to permit the new defendants
to participate in establishing a new scheduling order and trial date. 13
R. Doc. No. 1-1.
R. Doc. No. 1.
R. Doc. No. 2.
R. Doc. No. 39.
R. Doc. No. 53, at 1.
R. Doc. No. 53, at 1.
R. Doc. No. 53, at 2.
Judge Zainey held a status conference to discuss the motion on November 19, 2015. 14 The
Court’s minute entry15 following the conference states that the Court and the parties discussed
plaintiffs’ requests to add two additional parties and for a continuance. Because six months
remained before the trial date, the Court declined to grant a continuance. 16
The Court did,
however, give plaintiffs permission to amend their complaint to add Lockheed and General
Dynamics as defendants. Plaintiffs did so the following day, on November 20, 2016. 17
The case was reassigned 18 to this section on December 11, 2015, and Lockheed and
General Dynamics filed their motions for reconsideration and to strike the amended complaint on
January 19, 2016. 19 In February 2016, this Court ordered that the trial of this matter be continued
approximately six months to November 2016. 20
LAW AND ANALYSIS
Standard for reconsideration
Orders granting or denying motions to add new parties are interlocutory orders. Melancon
v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981). Rule 54(b) of the Federal Rules of Civil
Procedure provides, in pertinent part, that any interlocutory order that does not fully resolve all
claims, such as this Court’s November 19, 2015 minute entry, “may be revised at any time before
the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” The
general practice of courts in this district has been to evaluate motions to reconsider interlocutory
See R. Doc. No. 55.
R. Doc. No. 59.
R. Doc. No. 59.
R. Doc. No. 60.
R. Doc. No. 69.
R. Doc. Nos. 102, 103.
R. Doc. No. 119. The precise trial date will be set via a scheduling conference with this Court’s
case manager on March 2, 2016. R. Doc. No. 120.
orders under the same standards that govern Rule 59(e) motions to alter or amend a final judgment.
Castrillo v. Am. Home Mortg. Servicing, Inc., No. 09–4369, 2010 WL 1424398, at *4 (E.D. La.
Apr. 5, 2010) (Vance, J.); accord Bernard v. Grefer, No. 14–887, 2015 WL 3485761, at *5 (E.D.
La. June 2, 2015) (Fallon, J.).21
A motion to alter or amend a judgment filed pursuant to Rule 59(e) “serve[s] the narrow
purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered
evidence.” Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989). A district court has
“considerable discretion in deciding whether to reopen a case in response to a motion for
reconsideration under” Rule 59(e). Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d
167, 174 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air. Corp., 37 F.3d 1069
(5th Cir. 1994) (en banc).
A moving party must satisfy at least one of the following four criteria to prevail on
a Rule 59(e) motion: (1) the movant demonstrates the motion is necessary to correct
manifest errors of law or fact upon which the judgment is based; (2) the movant
presents new evidence; (3) the motion is necessary in order to prevent manifest
injustice; and, (4) the motion is justified by an intervening change in the controlling
Jupiter v. BellSouth Telecomms., Inc., No. 99–0628, 1999 WL 796218, at *1 (E.D. La Oct. 5,
1999) (Vance, J.). “The Court must strike the proper balance between the need for finality and the
need to render just decisions on the basis of all the facts.” Edward H. Bohlin Co. v. Banning Co.,
6 F.3d 350, 355 (5th Cir. 1993).
“Although there may be circumstances in which a different standard would be appropriate,”
Castrillo, 2010 WL 1424398, at *4 (citing Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505,
514–16 (4th Cir. 2003)), the parties have not argued that any other standard should apply, and the
Court finds that there are no circumstances in this matter that warrant a deviation from this general
Furthermore, “when a district judge has rendered a decision in a case, and the case is later
transferred to another judge, the successor should not ordinarily overrule the earlier decision.”
Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983) (citing 18 C. Wright, A. Miller & E.
Cooper, Federal Practice and Procedure § 4478, at 788, 794–95 (1981)). When a successor judge
replaces another judge, however, “[t]he successor judge has the same discretion as the first judge
to reconsider [the first judge’s] order.” Abshire v. Seacoast Products, Inc., 668 F.2d 832, 837–38
(5th Cir. 1982). “This flexibility . . . accommodates the reality that the predecessor judge could
always have reconsidered before judgment.” Hill v. City of Pontotoc, Miss., 993 F.2d 422, 425
(5th Cir. 1993).
Standard for modification of a scheduling order
Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend the pleadings
“shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). However, the Fifth Circuit
has explicitly held that Rule 16(b) governs amendment of pleadings after a scheduling order
deadline has expired. Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003). Rule
16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge’s
consent.” “The good cause standard requires the ‘party seeking relief to show that the deadlines
cannot reasonably be met despite the diligence of the party needing the extension.’” S & W Enters
., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (quoting 6A Charles
Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed.1990)). A trial court has broad
discretion to preserve the integrity and purpose of its pretrial orders “which, toward the end of
court efficiency, is to expedite pretrial procedure.” S & W Enters., 315 F.3d at 535.
The U.S. Fifth Circuit Court of Appeals has applied a four-factor balancing test in certain
contexts to determine whether good cause exists to modify a scheduling order by weighing (1) the
explanation for the failure to adhere to the deadline at issue; 22 (2) the importance of the proposed
modification to the scheduling order; (3) potential prejudice; and (4) the availability of a
continuance to cure such prejudice. See Geiserman v. MacDonald, 893 F.2d 787, 790–92 (5th Cir.
1990) (untimely designation of expert witnesses); Reliance Ins. Co. v. La. Land & Exploration
Co., 110 F.3d 253, 257–58 (5th Cir. 1997) (untimely submission of expert reports); S & W Enters.,
315 F.3d at 536 (untimely amendment of pleadings).
Lockheed and General Dynamics argue that plaintiffs “have not, and cannot, demonstrate
good cause for ignoring the Court’s pleading amendment deadline.” 23 They argue that “Judge
Zainey issued the amendment Order without considering or applying Rule 16 and its strict
‘diligence’ standard.” 24 As support for their assertion that plaintiffs cannot show good cause for
failing to comply with the first scheduling order, defendants cite this section’s decision in Curol
v. Energy Res. Tech., Inc., No. 03-3126, 2004 WL 2609963, at *1 (E.D. La. Nov. 16, 2004) (Africk,
In Curol, this Court reconsidered and then rescinded its order permitting the plaintiff to
amend his complaint after the deadline where the plaintiff “made no showing that, prior to the
expiration of the deadline, he was diligent in seeking discovery and that, despite such diligence,
the amendment deadline could not reasonably have been met.” Id. at *4. The Court had originally
permitted the plaintiff to amend his complaint over six months after the original deadline in order
that plaintiff could add as a defendant the manufacturer of a valve that plaintiff claimed was
If the party seeking to modify the scheduling order was not diligent, however, the inquiry should
end. Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 610 (9th Cir. 1992) (cited favorably in
S&W Enterprises, L.L.C., 315 F.3d at 535).
R. Doc. No. 102-1, at 5.
R. Doc. No. 118, at 2.
defective. Id. at *1. Upon reconsideration, in response to the plaintiff’s argument that the added
manufacturer was a “key and critical defendant,” this Court reasoned that “the claimed importance
of adding [the manufacturer] as a defendant only underscores the need for plaintiff to have timely
conducted discovery and to have timely moved to amend the complaint and bring [the
manufacturer] into this action.” Id. at *5.
Defendants characterize Curol as “a strikingly similar scenario” to that presently before
the Court. 25 But this characterization is hardly accurate. First, plaintiffs in this case sought to
amend their complaint only two months after the deadline; they did not wait six months as did the
plaintiff in Curol. Second, an important factor in this Court’s Curol decision was the fact that
plaintiff’s original complaint, which had been filed ten months prior to his attempted amendment,
actually identified the manufacturer of the valve. Id. at *3. Thus this Court found “unpersuasive
and unbelievable” the plaintiff’s claim that he had been unaware of the manufacturer’s identity
prior to filing his motion to amend. Id. at *3. Third, and perhaps most critically, the nature of the
present litigation is far different from that of Curol. The Curol case was a personal injury lawsuit
arising out of a single unfortunate occurrence; this is a case in which plaintiffs allege asbestos
exposure spanning a period of approximately thirty years. 26
There are unique difficulties
associated with discovery in latent disease cases. In the face of those difficulties, and given that
this Court has no reason to doubt plaintiffs’ counsel’s representations to the Court in their motion
to continue, this Court cannot say that Judge Zainey committed a “manifest error of law” when
he granted plaintiffs permission to amend their complaint. See Waltman, 875 F.2d at 473.
R. Doc. No. 118, at 3.
R. Doc. No. 1-1, at 2.
While defendants complain that the Court did not explicitly address Rule 16(b)—the rule
governing scheduling order modifications—before granting plaintiffs leave to amend their
complaint, that fact alone does not necessarily indicate that Judge Zainey did not determine that
plaintiffs had shown good cause before rendering his decision. To the contrary, the Court’s
November 19, 2015 minute entry indicates that the Court and the parties actually discussed
plaintiffs’ desire to amend their complaint to add two additional parties during the status
conference. 27 Furthermore, plaintiffs’ motion to continue attempted to justify their tardiness in
locating Lockheed and General Dynamics, explaining that those manufacturers were only
identified during the course of “recent interviews with co-workers,” which were plaintiffs’ primary
method of discovering new parties considering that Boyd himself had died “prior to being
interviewed and deposed.” 28
In their opposition to defendants’ motion, plaintiffs further explain that, “[a]s was
discussed at length before Judge Zainey, . . . [t]he individuals providing information are elderly
and have to test their memory from nearly five decades ago. Not surprisingly, information has
been difficult to obtain.” 29 Given that information, it is clear to this Court that Judge Zainey would
have considered whether plaintiffs’ untimely request was justified before granting it.
Defendants finally argue that, if this Court does not overturn its previous order, defendants
“would be prejudiced substantially by potentially being divested of a meritorious statute of
limitations defense.” 30 They assert, without any meaningful substantive discussion, that “[n]o trial
R. Doc. No. 59.
See R. Doc. No. 53, at 1.
R. Doc. No. 111, at 4.
R. Doc. No. 102-1, at 6.
continuance will cure the prejudice of being belatedly bundled into pending litigation.” 31 But this
Court is unpersuaded by defendants’ blanket allegation.
The Court is not persuaded that Judge Zainey’s order itself or this Court’s refusal to
overturn Judge Zainey’s order substantially prejudices Lockheed and General Dynamics. The
Court further finds that the factors identified by the Fifth Circuit in S & W Enterprises, 315 F.3d
at 536, overall support Judge Zainey’s decision to modify the scheduling order. Accordingly, the
Court concludes that Judge Zainey’s order did not constitute a “manifest error of law,” and so it
declines to overturn it. Waltman, 875 F.2d at 473. For that reason,
IT IS ORDERED that defendants’ motions for reconsideration and to strike plaintiffs’
first amended complaint are DENIED.
New Orleans, Louisiana, February 26, 2016.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
Defendants explain that, “[i]f sued separately, [Lockheed and General Dynamics] could avail
[themselves] of Louisiana’s one-year statute of limitations for wrongful death and survival claims.
La. Civ. Code arts. 2315.1, 2315.2.” R. Doc. No. 102-1, at 6.
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