Al-Anazi v. Bill Thompson Transport, Incorporated et al

Filing 70

OPINION and ORDER Granting Plaintiffs' 64 Motion to Amend Complaint, Terminating 48 Motion to Certify Class, and Denying without Prejudice 63 Motion to Strike Affidavit of Wade Thompson - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Abdallah Al-Anazi and Sadaqa
National, Inc.,
Case No. 15-cv-12928
Plaintiffs,
Judith E. Levy
United States District Judge

v.
Frederick-Thompson Company
d/b/a FTI, and Bill Thompson
Transport, Inc.,

Mag. Judge R. Steven Whalen

Defendants.
________________________________/
OPINION AND ORDER GRANTING PLAINTIFFS’ MOTION TO
AMEND COMPLAINT [64], TERMINATING MOTION TO
CERTIFY CLASS [48], AND DENYING WITHOUT PREJUDICE
MOTION TO STRIKE AFFIDAVIT OF WADE THOMPSON [63]
On August 11, 2016, the Court set a scheduling order establishing
September 12, 2016 as the deadline for plaintiff Abdallah Al-Anazi to
amend the complaint. (Dkt. 33.) On September 6, 2016, plaintiff filed
an amended complaint, adding his company, Sadaqa National, Inc., as a
plaintiff. (Dkt. 36.) On February 17, 2017, plaintiffs filed a combined
motion to certify a class and amend the complaint to add new class
representatives. (Dkt. 48.)

That motion had two flaws. First, it was procedurally improper,
because it failed to attach a copy of the amended complaint. E.D. Mich.
Local R. 15.1. Second, it was substantively deficient, because it sought
to add class representatives without identifying them. (See Dkt. 48 at
21-22.)

On March 27, 2017, the Court held a telephonic hearing

concerning, in part, plaintiffs’ combined motion. During that hearing,
the Court and the parties discussed the issues with plaintiffs’ combined
motion. The Court granted plaintiffs leave to file a proper and separate
motion for leave to amend the complaint, and because of the additional
time required to file the brief, suspended the remaining dates on the
scheduling order pending a decision on the motion to amend. (Dkt. 61.)
Plaintiffs filed their motion for leave to amend the complaint on
April 2, 2017, (Dkt. 64), and it is now fully briefed and ready for
adjudication.
Plaintiffs seek leave to add two named class representatives to
their complaint: Anthony Coleman and Ralph Ross. (Dkt. 64 at 9.)
Coleman was disclosed to plaintiffs in a discovery production provided
on August 10, 2016. (Dkt. 67 at 4.) Ross was disclosed to plaintiffs in a
discovery production containing information relating to numerous
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potential class representatives, issued on January 4, 2017. (Dkt. 64 at
12.)

Plaintiffs did not file a motion identifying either person as a

potential class member until April 2, 2017.
Fed. R. Civ. P. 15(a)(2) states that after an initial period
permitting a plaintiff to amend once as a matter of course, “a party may
amend its pleading only with the opposing party’s written consent or
the court’s leave. The court should freely give leave when justice so
requires.” However, Fed. R. Civ. P. 16(b)(3) requires the Court to set a
scheduling order limiting the time to, among other things, “amend the
pleadings.” After a scheduling order is set, it “may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
These two provisions may seem facially contradictory, with one
creating a liberal amendment standard and the other limiting the
ability to amend the complaint pending a showing of good cause by a
plaintiff. However, the purpose of Rule 16 is to “ensure that ‘at some
point both the parties and the pleadings will be fixed.’”

Leary v.

Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (citing Fed R. Civ. P. 16,
1983 advisory notes).

The “good cause” requirement ensures the

movant’s “diligence in attempting to meet the case management order’s
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requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.
2002).
Here, plaintiffs filed a motion for leave to amend their complaint
to add new class representatives nearly seven months after the deadline
to amend the complaint set in the Court’s scheduling order. Plaintiffs
argue that this case has no scheduling order, because the Court
suspended “[a]ll scheduling order dates” pending a ruling on this
motion. (Dkt. 61 at 1.) Because there is no scheduling order, plaintiffs
contend, Rule 16 cannot apply, and they are bound only by Rule 15’s
liberal amendment standard.
In suspending the remaining scheduling order dates pending a
ruling on this motion to amend the complaint, the Court modified the
scheduling order pursuant to Rule 16(b)(4). The Court had good cause
to do so, given that the numerous extensions for plaintiffs’ class
certification motion, coupled with the need to have plaintiffs refile their
deficient motion to amend, would have let plaintiffs alter the complaint
after discovery closed on May 1, 2017. (See Dkt. 33.) Modification of a
scheduling order, even when the dates remain undetermined pending a
decision on a motion that may increase the amount and type of
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discovery needed, does not abolish the scheduling order. Additionally,
the date set for amending the complaint has remained constant, and no
subsequent modification has retroactively eliminated or amended that
date.
Plaintiffs also argue that the Court, having set a new deadline to
file a compliant motion for leave to amend, “granted leave to allow for
Plaintiffs to file their Second Amended Complaint in compliance with
the local court rules.”

(Dkt. 69 at 2 (citing Dkt. 61) (emphasis in

original).) This is inaccurate. The Court set a date for plaintiffs to
correct the deficiencies in their combined motion seeking leave to file an
amended complaint. The Court did not set a new date for plaintiffs to
amend the complaint, and no amendment was permitted in the Court’s
March 30, 2017 order.
There are many reasons a plaintiff might have to wait to file a
motion to amend a complaint to add new named class representatives,
particularly in a case involving truck drivers, whose lives are less fixed
than people in most other lines of employment. This is doubly so where
numerous potential class representatives were identified on January 4,
2017, and plaintiffs needed to contact those people to determine
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whether

they

were

suitable

and

willing

to

serve

as

class

representatives.
Without a showing of good cause, a delay of roughly two months
after an amendment deadline is sufficient to deny a motion for leave to
amend a complaint.

See Johnson v. Metro. Gov’t of Nashville and

Davidson Cnty., Tenn., 502 F. App’x 523, 541 (6th Cir. 2012) (upholding
denial of a motion for leave to amend filed “over two months” after a
scheduling order deadline). Plaintiffs do not articulate the good cause
for their delay, but do establish the timeline of discovery and filings
that led to their current motion to amend.
Despite plaintiffs’ failure to articulate their explanation as good
cause, such cause is apparent from the timeline of events provided by
plaintiffs. The earliest plaintiffs could have filed a motion to amend
was at some reasonable point after January 4, 2017, following an
opportunity to contact the list of potential class representatives that
defendants provided. They filed that motion on February 17, 2017, but
did not identify the potential class representatives. On March 27, 2017,
the Court instructed plaintiffs to refile the motion properly, and they
did so six days later. To the extent there was an unreasonable delay, it
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was in the period between February 17, 2017, and March 27, 2017, a
period of roughly six weeks. Plaintiffs then corrected their error within
one week.
Plaintiffs had good cause to file a motion to amend after the
scheduling order deadline through February 17, 2017, based on the date
of production of a list of potential class representatives. In the period
between February 17 and April 2, 2017, plaintiffs had an active, yet
deficient, motion to amend that required resubmission, which they
promptly did in compliance with the Court’s order. The Court will not
disregard the good cause plaintiffs had to file the first motion to amend
because it required a correction, particularly where defendants have not
shown that the error was committed in bad faith.

Accordingly,

sufficient good cause has been shown with regard to the timing of the
properly filed motion.
In determining whether good cause has been shown, an
“important consideration for a district court deciding whether Rule 16’s
good cause standard is met is whether the opposing party will suffer
prejudice by virtue of the amendment.” Leary, 349 F.3d at 906 (internal
quote marks and citation omitted). It is unclear, however, whether a
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showing of prejudice is necessary to demonstrate a lack of good cause,
or simply “another relevant consideration” alongside or subsidiary to
the moving party’s diligence. Inge, 281 F.3d at 625.
A review of Sixth Circuit case law shows that prejudice to the
opposing party may support a finding that good cause has not been
shown, but is not required to be shown where the moving party has
failed to demonstrate its own diligence. See Johnson, 502 F. App’x at
541 (upholding denial of an amendment without a finding of prejudice),
Korn v. Paul Revere Life Ins. Co., 382 F. App’x 443, 450 (6th Cir. 2010)
(holding that prejudice is “merely a consideration” in the good cause
analysis, and that a plaintiff “must . . . explain why he failed to move
for the amendment at a time that would not have required a
modification of the scheduling order.”).
If leave to amend is granted, the prejudice to defendants will be
small.

Defendants argue that plaintiffs have had a preview of the

tactics defendants will use to attack the suitability of a proposed class
representative, and may adjust their preparation for their other
proposed representatives accordingly.

However, because there are

multiple proposed class representatives, defending multiple depositions
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would have already permitted plaintiffs to adjust for the later-taken
depositions, and each deponent will be under oath to testify truthfully.
Defendants also argue that the current scheduling order lacks sufficient
time to permit them to take discovery. However, the scheduling order
can and will be adjusted to permit defendants sufficient time to take
discovery before the class certification motion is decided.
Further, defendants argue that because briefing has already
occurred in this case with regard to class certification, granting a
motion to amend will allow plaintiffs to proceed with knowledge of
defendants’ arguments, and without requisite time to take discovery
before opposing the newly proposed class representatives. However, if
leave to amend is granted, the motion for class certification will have to
be refiled to reflect the additional class representatives.

Additional

time will be given for discovery before the amended motion is required
to be filed.
Finally, defendants argue that it would be futile to add Ross as a
class representative because he did not suffer the requisite harm, as
proven by records and an affidavit not attached to the complaint.
However, at the motion to amend stage, futility is determined by
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whether a complaint can survive a motion to dismiss. Sanford v. DTE
Energy Co., Case No. 07-cv-15451, 2009 WL 1449087, at *1 (E.D. Mich.
May 21, 2009) (citing Neighborhood Dev. Corp. v. Advisory Council on
Historic Pres., 632 F.2d 21, 23 (6th Cir. 1980)).
When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
the Court must “construe the complaint in the light most favorable to
the plaintiff and accept all allegations as true.” Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir. 2012). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A plausible claim need not contain “detailed
factual allegations,” but it must contain more than “labels and
conclusions” or “a formulaic recitation of the elements of a cause of
action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
amended complaint sufficiently and plausibly pleads that Ross is a
proper class representative. The proper place for defendants to present
their additional evidence is in response to the motion for class
certification.

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The Court will reluctantly grant the motion to amend the
complaint. Because the motion for class certification does not mention
the two new proposed class representatives, the current motion will be
terminated, and time given to defendants to depose the additional
proposed class representatives.
For the reasons set forth above, it is hereby ordered that:
Plaintiffs’ motion to amend the complaint (Dkt. 64) is GRANTED;
Plaintiffs’ motion to certify the class (Dkt. 48) is TERMINATED;
Plaintiffs’ motion to strike the affidavit of Wade Thompson (Dkt.
63) is DENIED WITHOUT PREJUDICE;
Plaintiffs are instructed to file a motion for class certification no
later than August 11, 2017, and defendants’ response is due no later
than September 1, 2017;
Defendants must be permitted to depose Coleman and Ross before
any motion for class certification is filed; and
All other scheduling dates will be set following hearing or decision
on the motion for class certification if no hearing is held.
IT IS SO ORDERED.
Dated: June 7, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
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United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on June 7, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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