Powell v. Wal-Mart Stores, Inc.
OPINION AND ORDER GRANTING 23 Plaintiff's MOTION to Amend Complaint, and DENYING 14 Defendant's MOTION for Summary Judgment without Prejudice. (Discovery due by 8/16/2017, TELEPHONIC Status Conference set for 8/21/2017 04:00 PM before District Judge Terrence G. Berg, Dispositive Motion Cut-off set for 9/15/2017.) Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-10643
Hon. Terrence G. Berg
Wal-Mart Stores, Inc.,
OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION TO AMEND COMPLAINT (DKT. 23) AND
DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (DKT. 14) WITHOUT PREJUDICE
I. Overview and Procedural History
Maynard Powell alleges that he slipped and fell in a Wal-Mart
store and injured himself. His lawyer now asks the Court to allow
him to amend the complaint even though Walmart has already filed
a motion for summary judgment. Plaintiff’s attorney waited until
after discovery closed before he got an expert involved, and waited
until after Walmart had filed a summary judgment motion to ask
to amend the complaint to include claims based on the expert’s report.1 So Plaintiff now moves to amend the Complaint. (Dkt. 23).
Defendant understandably argues that the dilatory conduct of Plaintiff’s
counsel is such that it should prevent him from being allowed to add a new
claim at this very late stage in the proceeding. But that course of action
would punish the Plaintiff for the negligence of his attorney.
On April 25, 2017 Defendant filed a Response objecting to this motion. (Dkt. 24). On May 15, 2017 the parties’ attorneys appeared
before the Court via telephone, on the record, to discuss Plaintiff’s
motion. (Dkt. 23).
Discovery closed in this case on December 8, 2016. (Dkt. 12). On
February 9, 2017, Defendant timely filed a Motion for Summary
Judgment. (Dkt. 14). Plaintiff’s counsel failed to timely respond to
this motion and, accordingly, on March 14, 2017 the Court ordered
him to show cause regarding his lack of response. (Dkt. 19). On
March 17, 2017, Plaintiff filed a late Response to Defendant’s Motion for Summary Judgment. (Dkt. 20). Currently, a hearing on Defendant’s Motion for Summary Judgment is set for June 26, 2017.
II. Plaintiff’s Motion to Amend the Complaint (Dkt. 23)
More than four months after the close of discovery, and over
two months after the cut-off date for the filing of dispositive motions, Plaintiff’s counsel filed a motion seeking leave to amend the
complaint. (Dkt. 23). The original complaint contained only one
count of premises liability against Wal-Mart. (Dkt. 1 at 11). Plaintiff’s proposed amended complaint alleges a second count—based
on the findings in a March 4, 2017 report from expert witness Jef-
frey E. Bartrem (Dkt. 20, Ex. 5)—for violation of Michigan Common Law, Statutes, Ordinance, and Building Code (essentially, a
claim for negligence per se). (Dkt. 23 at 381).
1. Applicable Law
Fed. R. Civ. P. 15(a)(2) instructs the Court that leave to amend
should be freely given when justice so requires. “The thrust of
Rule 15 is . . . that cases should be tried on their merits rather
than the technicalities of pleadings.” United States ex rel. Harper
v. Muskingum Watershed Conservancy District, 842 F.3d 430, 439
(6th. Cir 2016). But the right to amend is not automatic. “Factors
that may affect [the] determination include undue delay in filing,
lack of notice to the opposing party, bad faith by the moving party,
repeated failure to cure deficiencies…, undue prejudice to the opposing party, and futility of amendment.” Seals v. General Motors
Corp. 546 F.3d 766, 771 (6th Cir. 2008). A court may deny a motion to amend a complaint if it is filed after the close of discovery,
as this delay may prejudice the opposing party. See, e.g., Miller v.
Administrative Office of Courts, 448 F.3d 887, 898 (6th Cir. 2006)
(citing Duggins v. Steak N’ Shake, Inc., 195 F.3d 828, 834 (6th Cir.
During the May 15, 2017 telephonic conference call with parties
and the Court, Plaintiff’s counsel, Mr. David K. Whipple, stated
that his delay in filing Plaintiff’s motion to amend was due to defense counsel’s uncooperativeness during discovery. This uncooperativeness, Mr. Whipple said, delayed the production of Mr. Bartrem’s expert report—which was the basis for the amended complaint—until March 4, 2017. Defense counsel, however, denied being uncooperative during discovery, and further claimed that
Plaintiff’s counsel: (1) failed to substantiate his allegations that
defense counsel was obstructive, (2) failed to explain why he
waited until April 11, 2017 to file Plaintiff’s motion to amend even
though he received Mr. Bartrem’s expert report on March 4, 2017,
and (3) failed to explain why, if it were the case that defense counsel was obstructing discovery, this matter was not brought to the
Court’s attention sooner.2
The Court finds no support for the allegation that Defense
Counsel failed to comply with its discovery obligations. On this
record, Plaintiff’s counsel has failed to articulate any adequate explanation for the delay. The Court therefore concludes that, by
waiting until after dispositive motions were filed in this case,
Plaintiff’s counsel unduly delayed the filing of Plaintiff’s Motion to
Amend the Complaint.
The Court also notes that Plaintiff’s counsel gave no adequate explanation
for failing to file a timely response to Defendant’s motion for summary judgment.
Also during the Court’s May 15, 2017 call with the parties, Defense counsel contended that her client would suffer prejudice
should the Court grant Plaintiff’s untimely motion to amend. Defense counsel stated that it would inconvenience, and impose an
unforeseen cost on, her client to have to defend against an additional count, which at this point in the litigation would require reopening discovery and Defendant to supplement and refile its motion for summary judgment.
The Court recognizes that there is some merit in Defendant’s
position; granting Plaintiff’s untimely motion to amend will require reopening discovery and cause Defendant to supplement and
refile its motion for summary judgment. Although this is a burden, it is not the kind of prejudice that should bar a Plaintiff from
being permitted access to the courts on a claim that, although late,
may be entitled to redress. Consequently, and somewhat reluctantly, the Court will grant Plaintiff’s Motion to Amend the Complaint (Dkt. 23), and deny without prejudice Defendant’s Motion
for Summary Judgment. (Dkt. 14).
The thrust of Rule 15 is that cases should be tried on their merits. And neither the inconvenience nor the unforeseen cost imposed on Defendant will be great: on the May 15, 2017 call, the
parties agreed that the only additional discovery necessary will be
Defendant’s deposition of Mr. Bartrem, and in any re-filed motion
for summary judgment, Defendant will only have to address one
additional count. Moreover, to minimize any unforeseen cost imposed on Defendant, Plaintiff’s counsel is hereby ORDERED to
pay all reasonable expenses and attorney’s fees incurred by Defendant in taking Mr. Bartrem’s deposition, which Plaintiff’s counsel caused to be taken at such a late stage in this litigation. Fed.
R. Civ. P. 30(d)(2) (“The court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.”).
Accordingly, the Court sets the following schedule:
The deposition of Mr. Bartrem is to be taken no later
than August 16, 2017;
The parties will have an end of discovery telephone conference with the court, initiated by the plaintiff, on
August 21, 2017 at 4:00 p.m.; and
Revised dispositive motions are due no later than
September 15, 2017.
Although the Court grants this relief to Plaintiff, it does not
wish to reward Plaintiff counsel’s poor record of compliance with
filing dates under the Rules and the Court’s scheduling order.
The Court wishes to emphasize that any further dilatory behavior
in failing to file responses in a timely manner will result in the
dismissal of this action with prejudice for failure to prosecute
the case. Should Plaintiff’s counsel fail to meet any subsequent
deadlines, and a motion to dismiss for failure to prosecute be filed,
it will be granted.
Plaintiff’s motion to amend the complaint is GRANTED (Dkt.
Defendant’s motion for summary judgment (Dkt. 14) is DENIED WITHOUT PREJUDICE; and
Plaintiff’s counsel IS HEREBY ORDERED to pay all reasonable expenses and attorney’s fees incurred by Defendant in taking
Mr. Bartrem’s deposition. Defense counsel shall submit to the
Court an accounting of such fees and expenses, along with a motion for payment of the same. Failure of Plaintiff’s counsel to pay
such costs within 30 days of the Court’s order will result in the
dismissal of this case with prejudice.
Dated: July 10, 2017
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically filed, and
the parties and/or counsel of record were served on July 10,
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