Rabun v. General Motors L L C, et al
Filing
27
MEMORANDUM ORDER denying 23 Second MOTION to Amend/Correct Complaint with opposition filed by Kimberly Peterson Rabun. Signed by Magistrate Judge Karen L Hayes on 07/24/2013. (crt,Yocum, M)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
KIMBERLY PETERSON RABUN
CIVIL ACTION NO. 12-2482
VERSUS
JUDGE ROBERT G. JAMES
GENERAL MOTORS, LLC, ET AL.
MAG. JUDGE KAREN L. HAYES
MEMORANDUM ORDER
Before the undersigned Magistrate Judge, on reference from the District Court, is a
motion for leave to file a supplemental petition [doc. # 23] filed by Plaintiff Kimberly Peterson
Rabun. The motion is opposed. For reasons assigned below, the motion is DENIED.1
Background
On June 8, 2012, Kimberly Peterson Rabun filed the instant suit for damages in the 4th
Judicial District Court for the Parish of Morehouse, State of Louisiana against General Motors
LLC (“GM”) and Ryan Chevrolet, Inc. (“Ryan”) for damages that she sustained on or about June
20, 2011, when the struts holding the rear lift gate of her new Chevy Tahoe gave way, causing
the lift gate to fall and strike her. (Petition). On August 23, 2012, Rabun amended her petition
to, among other things, dismiss Ryan, and to invoke the doctrine of res ipsa loquitur. (Amend. &
Suppl. Petition for Damages). On September 17, 2012, GM removed the case to federal court on
the basis of diversity jurisdiction, 28 U.S.C. § 1332. (Notice of Removal).
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As this motion is not excepted within 28 U.S.C. § 636(b)(1)(A), nor dispositive of any
claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this
order is issued under the authority thereof, and in accordance with the standing order of this court.
Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).
On December 13, 2012, the court set a February 22, 2013, deadline to amend pleadings.
(Dec. 13, 2012, Sched. Order [doc. # 8]). On May 30, 2013, GM filed a motion for summary
judgment seeking dismissal of Plaintiff’s complaint on the basis that she is unable to meet her
burden of proof. (Def. MSJ [doc. # 17]). On June 26, 2013, Plaintiff filed her opposition to the
motion for summary judgment. (Pl. Opp. Memo. [doc. # 21]). She urged the court to deny the
motion on the grounds of res ipsa loquitur and/or via an adverse inference warranted by GM’s
failure to preserve the lift gate struts. Id.
On July 3, 2013, Plaintiff filed the instant motion for leave of court to amend her petition
to add a cause of action for spoliation of evidence. (M/Leave [doc. # 23]). GM filed its
opposition to the motion on July 11, 2013. (Def. Opp. Memo. [doc. # 26]). Plaintiff did not seek
leave to file a reply within the applicable delays. Thus, the matter is ripe.
Analysis
Under Rule 15 of the Federal Rules of Civil Procedure, leave to amend shall be “freely”
granted “when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, where, as here, amendment
is sought after expiration of a court’s scheduling order deadline, Rule 15(a)’s liberal standard
does not apply unless, and until the party seeking leave first satisfies the more demanding
requirements of Rule 16(b). See Fahim v. Marriott Hotel Services, Inc., 551 F.3d 344, 348 (5th
Cir. 2008) (citation omitted).
I.
Diligence and Good Cause under Rule 16(b)
Rule 16(b) provides that, once issued, “a schedule may be modified only for good cause
and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). To obtain an extension of a scheduling
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deadline, the requesting party must demonstrate that, despite its diligence, it cannot reasonably
meet the deadline. Fahim, supra (citations omitted). The four factors relevant to good cause
include, (1) the explanation for the failure to timely move for leave to amend; (2) the importance
of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of
a continuance to cure such prejudice.” Id. (citations and internal quotation marks omitted).
a)
Explanation for Failure to Timely Seek Leave to Amend
According to the proposed pleading, Plaintiff alleges that on June 27, 2011, she contacted
GM to report that she was injured by the collapse of the rear lift gate of her 2011 Chevrolet
Tahoe. (Prop. 2nd Suppl. Pet.; M/Leave to Amend). Thereafter, GM generated a Service
Request Detail to document her complaint. Id. Cason Key, a Ryan Service Advisor testified that
pursuant to GM protocol, the subject rear lift gate struts were tagged and stored for 15 days,
during which time GM had the opportunity to inspect the subject struts and/or notify Ryan to
preserve the struts. Id. Plaintiff contends that despite GM’s knowledge of reasonably
foreseeable litigation, it failed to take steps to preserve the struts, thus allowing evidence to be
destroyed and/or discarded. Id.
Plaintiff’s counsel represents that in Plaintiff’s first discovery request, she asked GM to
produce any and all statements made by Plaintiff regarding the subject incident. (M/Leave to
Amend, pgs. 2-3). GM told her, however, that it had not taken any statements. Id. Plaintiff’s
counsel maintains that it was not until GM finally disclosed the existence of the Service Request
on June 18, 2013, that she first obtained evidence that GM had knowledge of her injuries before
the struts were destroyed.
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Given these circumstances, the court finds that Plaintiff has provided a creditable
explanation for her failure to meet the deadline to amend pleadings.
b)
Importance of the Amendment
Nonetheless, Plaintiff’s motion fails to explain the importance of the proposed
amendment. While Plaintiff perhaps thinks the importance of the proposed amendment is selfevident, the court reiterates that she already has petitioned the court to sanction GM via an
adverse inference as a result of its alleged culpable failure to preserve the lift gate struts. See
Opp. Memo., pgs. 8-10.2 Thus, without further elaboration by Plaintiff, the court is unable to
discern the importance of an amendment to add a redundant and/or superfluous cause of action
for spoliation of evidence.3
c-d)
Potential Prejudice and the Availability of a Continuance
The court finds that GM would not be materially prejudiced by the late amendment. As
discussed above, GM shares responsibility for the timing of the instant motion.
2
The court is authorized to enter an appropriate sanction pursuant to its inherent
authority or Federal Rule of Civil Procedure 37(b). See Pressey v. Patterson, 898 F.2d 1018,
1020 (5th Cir. 1990) (discussing possible sources for the court’s authority); see also Anderson v.
Prod. Mgmt. Corp., Civ. Action No. 98-2234, 2000 WL 492095 (E.D. La. Apr. 25, 2000)
(recognized that a court may employ the sanction of an adverse evidentiary inference when a
party suppresses evidence through spoliation).
3
To support her prospective cause of action for spoliation under Louisiana tort law,
Plaintiff must demonstrate the “intentional destruction of evidence carried out for the purpose of
depriving an opposing party of its use.” Burge v. St. Tammany Parish, 336 F.3d 363, 374 (5th
Cir. 2003) (citation omitted). There is no indication that the burden of proof for the tort of
spoliation is any less stringent than the showing required for an adverse evidentiary inference.
See Espana v. Pioneer Well Servs., L.L.C., Civil Action No. 11-01443, 2012 WL 5879760 (W.D.
La. Nov. 21, 2012) (equating the burdens of proof).
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Upon consideration of the pertinent Rule 16(b) factors, the court finds that although
Plaintiff has acted diligently in seeking leave to amend, she has not demonstrated good cause for
the proposed amendment. As explained above, the necessity of the amendment is not apparent.
The proposed cause of action appears to mimic the relief that she already requested in her
opposition to the motion for summary judgment. Thus, at this stage, the amendment simply
would retard the progress of these proceedings, necessitate a responsive pleading by Defendant,
require the possible supplementation of the existing dispositive motion record (which otherwise
is fully briefed and ripe), and thereby potentially cause the court to upset the existing trial
deadlines. In short, the illusory benefit of Plaintiff’s proposed amendment is substantially
outweighed by the costs it would impose on the timely progression of this case.
Conclusion
For the foregoing reasons, Plaintiff’s motion for leave to file a supplemental petition
[doc. # 23] is DENIED.
IT IS SO ORDERED.
THUS DONE AND SIGNED in chambers, at Monroe, Louisiana, this 24th day of July
2013.
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