Al Jazeera International v. Dow Lohnes PLLC et al

Filing 65

MEMORANDUM AND ORDER DENYING 55 motion to amend the scheduling order and for leave to file a second amended complaint. Signed by Judge Deborah K. Chasanow on 12/9/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AL JAZEERA MEDIA NETWORK, et al.
:
v.

:

Civil Action No. DKC 13-2769

:
DOW LOHNES PLLC, et al.
:
MEMORANDUM OPINION AND ORDER
Presently pending and ready for resolution in this legal
malpractice case is a motion to amend the scheduling order and
for leave file a second amended complaint, filed by Plaintiffs
Al Jazeera Media Network (“AJMN”) and Al Jazeera International
(“AJI”) (collectively, the “Plaintiffs”).

(ECF No. 55).

The

issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, Plaintiffs’ motion will be denied.
I.

Background
The

initial

complaint

in

this

case

was

filed

in

the

Superior Court of the District of Columbia, but was dismissed
voluntarily.

Plaintiff

AJI

then

filed

a

complaint

court, asserting a claim for legal malpractice.
After

Defendants

Dow

Lohnes

PLLC

and

Leslie

H.

in

this

(ECF No. 1).
Wiesenfelder

(collectively, the “Defendants”) answered, a scheduling order
was entered that included a deadline for moving to amend the

pleadings.

(ECF No. 20, at 2).

The court granted several

extensions of time (ECF Nos. 35; 37; 39; 43; 49), and Plaintiffs
filed the first amended complaint on August 3, 2015, adding
Plaintiff AJMN as a party (ECF No. 50).

Although some of the

discovery deadlines have been extended, the deadline to amend
pleadings and add parties was not modified further.
54).

(ECF No.

On October 30, 2015, Plaintiffs filed the pending motion,

seeking to amend the scheduling order and file a second amended
complaint.

(ECF No. 55).

Defendants responded in opposition

(ECF No. 58), and Plaintiffs replied.
II.

(ECF No. 64).

Standard of Review
The deadline established by the scheduling order for the

amendment of pleadings was extended to July 31, 2015, and that
deadline has long since passed.

Consequently, the parties must

do more than satisfy the liberal standard of Rule 15(a); they
must first meet the mandates of Rule 16(b)(4), which calls for
“good cause” to modify a scheduling order.

See Nourison Rug

Corp. v. Parvizian, 535 F.3d 295, 298–99 (4th Cir. 2008); see
also Elat v. Ngoubene, 993 F.Supp.2d 497, 519-20 (D.Md. 2014);
Holliday v. Holliday, No. 09-CV-01449-AW, 2012 WL 1409527, at *3
(D.Md. Apr. 20, 2012), aff’d, 522 F.App’x 174 (4th Cir. 2013)

2

(applying a two-prong test under Rules 16(b)(4) and 15(a) in
analyzing an untimely motion for leave to amend).
“A schedule may be modified only for good cause and with
the

judge’s

consent.”

Fed.R.Civ.P.

16(b)(4).

The

movant

satisfies the good cause requirement by showing that, despite
due diligence, it could not have brought the proposed claims in
a reasonably timely manner.

See Montgomery v. Anne Arundel

County, Md., 182 F.App’x 156, 162 (4th Cir. 2006); Rassoull v.
Maximus, Inc., 209 F.R.D. 372, 374 (D.Md. 2002).

The factors

courts consider in determining good cause are the “danger of
prejudice to the non-moving party, the length of delay and its
potential impact on judicial proceedings, the reason for the
delay, and whether the movant acted in good faith.”

Tawwaab v.

Va. Linen Serv., Inc., 729 F.Supp.2d 757, 768–69 (D.Md. 2010)
(citation omitted).

All in all, the dictates of Rule 16(b) are

not to be taken lightly.

See Potomac Elec. Power Co. v. Elec.

Motor Supply, Inc., 190 F.R.D. 372, 375 (D.Md. 1999) (citation
and internal quotation marks omitted) (“[A] judge’s scheduling
order is not a frivolous piece of paper, idly entered, which can
be cavalierly disregarded by counsel without peril.”).

If Rule

16(b) is not satisfied, there is no need to consider Rule 15(a).
See Nourison, 535 F.3d at 299.
3

Once the movant has met the burden of showing good cause,
the inquiry shifts to Rule 15(a), which provides that “court[s]
should freely give leave [to amend a pleading] when justice so
requires.”

Fed.R.Civ.P. 15(a)(2).

amend

when

only

“the

amendment

Courts should deny leave to
would

be

prejudicial

to

the

opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.”

Edwards v.

City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (citation
and internal quotation marks omitted); see Laber v. Harvey, 438
F.3d 404, 426 (4th Cir. 2006).
III. Analysis
Plaintiffs’ proposed amendments will not add a cause of
action, but purport to add to the complaint another theory of
liability for legal malpractice.
learned

only

in

September

2015

Plaintiffs contend that they
of

the

facts

underlying

the

proposed amendments, but it appears that at least some of the
facts were available earlier.

In their opposition briefing,

Defendants highlight documentation providing the factual basis
for Plaintiffs’ proposed amendments to show that these documents
and facts were not newly discovered, but were produced to or
known by Plaintiffs on or before February 12, 2015.
No. 59, at 10-14).

(See ECF

Plaintiffs also argue that Defendants will
4

not be prejudiced because Defendants already have all of the
information

that

they

need,

but

Plaintiffs

do

not

address

Defendants’ assertions that the proposed amendments adding a new
theory

of

liability

affect

expert

opinions

and

require

Defendants to search through hundreds of thousands of documents
already produced to determine which are relevant to the proposed
amendment.

(See id. at 4, 19; ECF No. 64, at 5).

Further

complicating the discovery process, Plaintiffs recently provided
an expert opinion in the guise of a rebuttal report but designed
to support the proposed new theory of liability.
59, at 19).

(See ECF No.

Here, Plaintiffs had ample time during the course

of this litigation to have pursued this purported new theory of
liability.

Certainly, the interaction between Defendants and

the architect in the underlying litigation has been central.
Although the deposition of Mr. Wiesenfelder that took place on
September 30, 2015 may have provided Plaintiffs with additional
information, it was not the first time that the new theory of
liability – that is, a potential conflict of interest - would
have been suggested.
The “good cause” inquiry under Rule 16(b) is focused on the
movant’s diligence.

See Marcum v. Zimmer, 163 F.R.D. 250, 254

(S.D.W.Va. 1995) (quoting Johnson v. Mammoth Recreations, Inc.,
5

975 F.2d 604, 609 (9th Cir. 1992)) (“Although the existence or
degree of prejudice to the party opposing the modification might
supply additional reasons to deny a motion, the focus of the
inquiry

is

upon

modification.

If

should end.”).
establish

the

moving

that

party’s

party

was

not

reasons
diligent,

for
the

seeking
inquiry

Accordingly, because Plaintiffs have failed to

that

they

exercised

diligence

in

seeking

leave

to

amend the complaint, they have not satisfied Rule 16 and their
motion will be denied.

Moreover, there would need to be renewed

exploration through the experts if the proposed amendments were
allowed,

thereby

prejudicing

Defendants.

See

Hammer

v.

Peninsula Poultry Equip. Co., No. RDB-12-1139, 2013 WL 97398, at
*4 (D.Md. Jan. 8, 2013) (citation omitted) (“Undue prejudice to
the

opposing

substantially

party
change

may
the

result
nature

from

an

of

the

amendment
case

or

that

would

require

the

opposing party to invest more time and expense in new litigation
preparation.”).

Thus, Plaintiffs also fail to meet the standard

under Rule 15 to amend the complaint.
IV.

Conclusion
Based on the foregoing, it is this 9th day of December,

2015, by the United States District Court for the District of
Maryland, ORDERED that:
6

1.
to

file

The motion to amend the scheduling order and for leave
a

Plaintiffs

second
Al

amended

Jazeera

complaint
Media

(ECF

Network

No.
and

55),
Al

filed

by

Jazeera

International, BE, and the same HEREBY IS, DENIED; and
2.

The clerk is directed to transmit copies of this order

to counsel for the parties.

/s/
DEBORAH K. CHASANOW
United States District Judge

7