Al Jazeera International v. Dow Lohnes PLLC et al
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.
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).
issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
following reasons, Plaintiffs’ motion will be denied.
Superior Court of the District of Columbia, but was dismissed
court, asserting a claim for legal malpractice.
(ECF No. 1).
(collectively, the “Defendants”) answered, a scheduling order
was entered that included a deadline for moving to amend the
(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.
On October 30, 2015, Plaintiffs filed the pending motion,
seeking to amend the scheduling order and file a second amended
(ECF No. 55).
Defendants responded in opposition
(ECF No. 58), and Plaintiffs replied.
(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)
(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
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).
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.”
Va. Linen Serv., Inc., 729 F.Supp.2d 757, 768–69 (D.Md. 2010)
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.”).
16(b) is not satisfied, there is no need to consider Rule 15(a).
See Nourison, 535 F.3d at 299.
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
Courts should deny leave to
opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.”
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).
Plaintiffs’ proposed amendments will not add a cause of
action, but purport to add to the complaint another theory of
liability for legal malpractice.
Plaintiffs contend that they
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).
Plaintiffs also argue that Defendants will
not be prejudiced because Defendants already have all of the
Defendants’ assertions that the proposed amendments adding a new
Defendants to search through hundreds of thousands of documents
already produced to determine which are relevant to the proposed
(See id. at 4, 19; ECF No. 64, at 5).
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
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
See Marcum v. Zimmer, 163 F.R.D. 250, 254
(S.D.W.Va. 1995) (quoting Johnson v. Mammoth Recreations, Inc.,
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
Accordingly, because Plaintiffs have failed 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
Peninsula Poultry Equip. Co., No. RDB-12-1139, 2013 WL 97398, at
*4 (D.Md. Jan. 8, 2013) (citation omitted) (“Undue prejudice to
opposing party to invest more time and expense in new litigation
Thus, Plaintiffs also fail to meet the standard
under Rule 15 to amend the complaint.
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:
The motion to amend the scheduling order and for leave
International, BE, and the same HEREBY IS, DENIED; and
The clerk is directed to transmit copies of this order
to counsel for the parties.
DEBORAH K. CHASANOW
United States District Judge
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