Shank v. Carleton College

Filing 234

MEMORANDUM OPINION AND ORDER. 229 Objection is OVERRULED and 221 Order is AFFIRMED. (Written Opinion). Signed by Judge Eric C. Tostrud on 1/7/2019. (RMM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Elizabeth M. Shank,

File No. 16-cv-01154 (ECT/HB)

Plaintiff,
MEMORANDUM OPINION
AND ORDER

v.
Carleton College,
Defendant.

On October 15, 2018, Magistrate Judge Hildy Bowbeer issued an order addressing
several issues, including granting the motion of Plaintiff Elizabeth M. Shank (“Shank”) to
amend her complaint to allege punitive damages in connection with her state-law claims.
Defendant Carleton College (“Carleton”) objects only to the part of Judge Bowbeer’s order
finding that “good cause” existed under Fed. R. Civ. P. 16 to amend the scheduling order
to permit consideration of Shank’s late motion to amend. Having carefully reviewed the
underlying order, the parties’ arguments, and the applicable law, the Court will affirm
Judge Bowbeer’s finding of good cause and, as a result, her order granting Shank’s motion
to amend.
I
The background facts are set forth more fully in court orders dated January 9, 2017
[ECF No. 41] and October 15, 2018 [ECF No. 221], and will not be recited at length here.
In short, Shank brought this action challenging Carleton’s alleged mishandling of two
on-campus rapes. See First Am. Compl. ¶ 1 [ECF No. 6]. Shank originally sought punitive

damages only as to her federal claim under Title IX, expressly noting in her complaint that
“[t]he law of this District precludes the initial pleading of a claim of punitive damages
as to state law claims.”1 Id. ¶ n, 49 n.3. Approximately two years later, and after the close
of discovery, she filed a motion to amend her complaint to add a claim for punitive damages
as to her state-law claims. See Mot. to Amend [ECF No. 64]; Proposed Second Am.
Compl. ¶¶ 263–65, n [ECF No. 72-3].
Shank’s motion to amend was complicated by two issues: (1) the timeliness of her
motion, in view of the scheduling order, and (2) a dispute about whether Fed. R. Civ. P. 15
or Minn. Stat. § 549.191 provided the applicable legal standard for considering the motion.
Judge Bowbeer found that Shank’s motion was untimely. ECF No. 221 (“Order”) at 13.
Although the scheduling order from the initial pretrial conference had left a blank for
“[m]otions seeking to add claim for punitive damages,” ECF No. 45 at 3, Judge Bowbeer
concluded that the general deadline of August 1, 2017, for “[m]otions seeking to amend
pleadings,” id., was controlling, making Shank’s motion over a year late, Order at 12–13.
And although the law in the District had long been that Fed. R. Civ. P. 15(a)(2)’s “freely
give leave” standard yields to Minn. Stat. § 549.191’s “prima facie evidence” standard,
Judge Bowbeer joined a recent intra-District trend and concluded the opposite. See Order
at 8–10. But neither of these rulings is at issue in this appeal. See Def.’s Obj. at 1–2 [ECF
No. 229].

1

Shank also expressly acknowledged that “there is no controlling authority in this
District bearing on the availability of punitive damages under Title IX,” and that she was
making “an argument for extending, modifying, or reversing existing law or for
establishing new law.” First Am. Compl. at 49 n.3 [ECF No. 6].
2

The sole issue that Carleton appeals is Judge Bowbeer’s threshold determination
that “good cause” existed under Rule 16 to consider Shank’s belated motion to amend
under Rule 15. See id. Having found good cause, Judge Bowbeer then entertained the
merits of Shank’s motion to amend. She concluded that the court was “not working with
a tabula rasa” because Judge Schiltz had already concluded the complaint stated a claim
for “deliberate indifference” under Title IX and “intentional or reckless” conduct for
intentional infliction of emotional distress. Order at 15–16. The court held that these
standards “closely approximate[] the punitive damages standard under Minnesota law” and
that Shank had therefore “allege[d] a plausible claim ‘that the acts of the defendant
show[ed] deliberate disregard for the rights or safety of others.’” Id. at 16–18 (second
alternation in original) (quoting Minn. Stat. § 549.20). Accordingly, Judge Bowbeer
granted Shank’s motion to amend to add a claim for punitive damages as to her state-law
claims. Id. at 19.
II
A
Motions to amend for punitive damages are nondispositive motions, despite their
potentially dispositive implications.

See 28 U.S.C. § 636(b)(1)(A); Local Rule

7.1(b)(4)(A)(i) (providing that “[n]ondispositive motions covered by this subsection
include . . . motions to amend pleadings”); Daley v. Marriott Int’l, Inc., 415 F.3d 889, 893
n.9 (8th Cir. 2005) (referring to a motion for leave to amend the complaint as a
“nondispositive pretrial motion”); Olson v. Brott, No. 09-cv-790 (JNE/JJG),
2009 WL 4912135, at *3 (D. Minn. Dec. 11, 2009) (rejecting plaintiff’s argument that “the
3

denial of his motion to amend . . . constituted a judgment on the merits” and was therefore
dispositive, such that “the magistrate judge lacked jurisdiction to issue an order subject to
a ‘clearly erroneous’ or ‘contrary to law’ standard of review” (citations omitted)). As a
result, Judge Bowbeer’s decision on the motion to amend will be reversed only if “clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); accord Local Rule 72.2(b)(3).
This standard of review “is extremely deferential.” Magee v. Trs. of the Hamline
Univ., 957 F. Supp. 2d 1047, 1062 (D. Minn. 2013). “A ruling is clearly erroneous when
the reviewing court is left with the definite and firm conviction that a mistake has been
committed. A decision is contrary to law when a court fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Smith v. Bradley Pizza, Inc., 314 F. Supp. 3d
1017, 1026 (D. Minn. 2018) (citations and internal quotation marks omitted). “If the
magistrate judge’s account of the evidence is plausible in light of the record viewed in its
entirety, the reviewing court may not reverse it even though had it been sitting as the trier
of fact, it would have weighed the evidence differently.” Meyer v. Haeg, No. 15-cv-2564
(SRN/HB), 2016 WL 29257, at *3 (D. Minn. Jan. 4, 2016) (reviewing decision to grant
leave to amend).
B
Shank’s motion to amend implicates two federal rules and two state statutes: Fed. R.
Civ. P. 15 and 16, and Minn. Stat. §§ 549.191 and 549.20. But only Rule 16 and its
good-cause standard are directly at issue on appeal. A brief discussion of the interaction
between Rules 15 and 16 is useful.

4

Rule 15 requires the court to “freely give leave” to amend “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Even though this is a liberal standard, parties do not
have an absolute right to amend for any claim at any time. See Sherman v. Winco
Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008). A motion to amend may be denied for
“compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the non-moving
party, or futility of the amendment.” Id. (citation and internal quotation marks omitted).
But when a Rule 15 motion is brought after the court-ordered deadline, the court
must conduct a “good cause” analysis under Rule 16 to determine if amendment of the
scheduling order is appropriate.2 See Sherman, 532 F.3d at 716; see also TCS Holdings,
Inc. v. OnVoy, Inc., No. 07-cv-1200 (DWF/AJB), 2008 WL 11347408, at *2 (describing
how the movant must show good cause to “justify modification of the scheduling order,
thereby re-establishing the timeliness of the amendment motion itself”). This is a more
stringent standard than in Rule 15. See Bradford v. DANA Corp., 249 F.3d 807, 809 (8th
Cir. 2001) (calling the good-cause standard “less forgiving”). “The primary measure of

2

Rule 16 does not distinguish between “good cause” and “excusable neglect” in the
way Rule 6 does. Compare Fed. R. Civ. P. 16(b)(4), with Fed. R. Civ. P. 6(b)(1). Arguably
the excusable-neglect standard should apply when a party seeks to modify the scheduling
order after the deadline has passed. See Fed. R. Civ. P. 6(b)(1)(B) (requiring a showing of
good cause and excusable neglect to extend an expired deadline); Portz v. St. Cloud State
Univ., No. 16-cv-1115 (JRT/LIB), 2017 WL 3332220, at *3 n.1 (D. Minn. Aug. 4, 2017)
(noting that “a somewhat different analysis may be warranted for deadlines that have
already run”). But the plain text of Rule 16 does not make this distinction. And in
Sherman, the Eighth Circuit was explicit that the “good-cause standard governs when a
party seeks leave to amend . . . outside of the time period established by a scheduling
order.” 532 F.3d at 716. Accordingly, the Court considers this appeal in light of the
good-cause standard.
5

good cause is the movant’s diligence in attempting to meet the [scheduling] order’s
requirements.” Sherman, 532 F.3d at 716–17 (citation and internal quotation marks
omitted)). If the court is satisfied that the movant was diligent, it will also generally
consider possible prejudice to the nonmovant. See id. at 717.
There is certainly overlap between the factors bearing on the Rule 15 and Rule 16
inquiries, but these are distinct inquiries that serve distinct purposes. Rule 16(b)(4) must
be addressed first, as it resolves whether the scheduling order should be modified. If the
court finds good cause under Rule 16, then the court proceeds to the Rule 15 inquiry, which
resolves whether the complaint can be amended. In other words, Rule 16 opens the door
to Rule 15.
III
The first and only order of business in this appeal is the good-cause showing
required by Rule 16.3 This, like other scheduling-order matters, falls within the magistrate
judge’s broad discretion. As Chief Judge John Tunheim observed in Portz v. St. Cloud
State University:
Eighth Circuit caselaw reflects the importance of diligence to the good cause
analysis, but this caselaw does not go so far as to state that diligence is
required for the district court to find good cause. See, e.g., Harris v. FedEX
Nat’l LTL, Inc., 760 F.3d 780, 786 (8th Cir. 2014) . . . .

3

Neither Carleton nor Shank challenges Judge Bowbeer’s findings and conclusions
that the motion to amend was untimely; that Rule 15, not Minn. Stat. § 549.191, controls;
and that amendment is not futile or prejudicial. See Def.’s Obj. at 2; Pl.’s Resp. at 2 [ECF
No. 233].
6

Therefore, while diligence is the primary factor for assessing good cause,
nothing limits the Court’s “broad discretion in establishing and enforcing the
deadlines” in the scheduling order. See Marmo v. Tyson Fresh Meats, Inc.,
457 F.3d 748, 759 (8th Cir. 2006) . . . . Moreover, there is not a clear test for
when a party is diligent enough to establish good cause.
No. 16-cv-1115 (JRT/LIB), 2017 WL 3332220, at *3–4 (D. Minn. Aug. 4, 2017). Here,
Judge Bowbeer found at least four factors amounted to good cause: (1) “the evidentiary
burden [Shank] thought she faced,” (2) “the timeframe in which she obtained some of the
information,” (3) Shank’s counsel’s “good faith, albeit mistaken, interpretation of the
scheduling order,” and (4) an absence of evidence that “Shank was dilatory or
otherwise . . . lack[ed] . . . diligence.” Order at 13–14.
Carleton contends that Judge Bowbeer’s order is contrary to law because “this Court
has repeatedly declined to find good cause under Rule 16 where, as here, discovery
occurred after the motion to amend deadline but the movant had the majority of the required
information earlier in the litigation.” Def.’s Obj. at 3–4 (citing Portz v. St. Cloud State
Univ., No. 16-cv-1115 (JRT/LIB), 2017 WL 4583319, at *10–11 (D. Minn. Jan. 17, 2017);
Moldex Metric, Inc. v. 3M Co., No. 14-cv-1821 (JNE/FLN), 2016 WL 845264, at *2
(D. Minn. Mar. 4, 2016); Promotional Mktg. Insights, Inc. v. Affiliated Comput. Servs.,
Inc., No. 11-cv-2795 (PJS/AJB), 2013 WL 4747261, at *4–5 (D. Minn. July 19, 2013);
Khoday v. Symantec Corp., No. 11-cv-180 (JRT/TNL), 2013 WL 12141434, at *2
(D. Minn. May 15, 2013); Luigino’s, Inc. v. Pezrow Cos., 178 F.R.D. 523, 525 (D. Minn.
1998)).
The line of cases upon which Carleton relies, which can be traced back to the Aviva
case, is distinguishable.

See Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc.,
7

No. 09-cv-1091 (JNE/JSM), 2010 WL 4193076, at *6 (D. Minn. Oct. 7, 2010) (“[A] party
does not meet the good cause standard under Rule 16(b) if the relevant information on
which it based the amended claim was available to it earlier in the litigation.” (citations
omitted)). In many of those cases, dilatory plaintiffs “offer[ed] no justification for [their]
extreme dereliction” of deadlines. Luigino’s, Inc., 178 F.R.D. at 525–26; see, e.g., Aviva,
2010 WL 4193076, at *7 (“[Plaintiff] made neither argument nor a showing that it had
complied with this Court’s Pretrial Scheduling Order or had good cause for seeking to
amend . . . well after the deadline for bringing such a motion.”). Here, Shank has offered
an explanation—several reasonable and persuasive ones, at that.
None of the cases cited by Carleton were decided after the intra-District split, and
none involved the same ambiguous scheduling order present in this case. It is true that the
Aviva line of cases reflects a hard line being taken in specific cases against plaintiffs who
delay in bringing motions to amend for punitive damages—and certainly it was reasonable
for Carleton to take the position that it did on this issue—but these cases do not create a
bright-line rule that makes Judge Bowbeer’s decision clearly contrary to law.
Moreover, there is Eighth Circuit precedent suggesting that a “change in the law”
may form the basis for good cause. Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948
(8th Cir. 2012) (finding no good cause where the movant did “not allege[] a change in the
law, the discovery of new facts, or some other change in circumstances” to justify belated
filing (citing Sherman, 532 F.3d at 718)); see also IBEW Local 98 Pension Fund v. Best
Buy Co., 326 F.R.D. 513, 523–24 (D. Minn. 2018). The state of the law in the District
regarding Rule 15 and Minn. Stat. § 549.191 was in flux around the time of the original
8

motion-to-amend deadline, and it continued to be in flux leading up to Shank’s filing of
her motion to amend. This unsettled, changing legal landscape provided a basis for
Shank’s reasonable belief that she needed “clear and convincing” evidence before filing
her motion. See Minn. Stat. § 549.20, subd. 1(a). It is understandable that attorneys would
err on the side of more, not less, evidence, particularly given that some judges still require
a showing of “prima facie evidence” under Minn. Stat. § 549.191. See Order at 6–12,
Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-cv-3183 (ADM/LIB)
(D. Minn. Mar. 8, 2018), ECF No. 534.
Finally, Shank’s belated motion does not reflect “carelessness,” “neglect,” or a
“litany of lame excuses,” which would justify denying her motion to amend. Cf. Archer
Daniels Midland Co. v. Aon Risk Servs. Inc., 187 F.R.D. 578, 582 (D. Minn. 1999).
Instead, the record reveals Shank’s incorrect but good-faith interpretation of the scheduling
order and an understandable assumption that she needed clear and convincing evidence to
accompany her motion. There is nothing here to suggest that a lawyer or party is inventing
excuses and applying them retroactively. The ambiguous scheduling order and changing
interpretation of the interplay between Rule 15 and Minn. Stat. § 549.191 created a “perfect
storm” that amounts to good cause for Shank’s belated motion to amend.4 Like Judge

4

Carleton appears to argue that if Shank’s conduct satisfies Fed. R. Civ. P. 16(b)(4),
then deadlines don’t matter and the good-cause standard is a farce. See Def.’s Obj. at 5, 9
(citing Luigino’s, Inc., 178 F.R.D. at 525–26 (“A scheduling order is an important tool in
controlling litigation . . . . [and] is not a frivolous piece of paper . . . . If an amendment of
the pleadings can be considered timely under these circumstances, then the good cause
showing of Rule 16(b) is an apparition . . . .”)). Motions to amend involving punitive
damages and state substantive law are distinguishable from more run-of-the-mill motions
to amend, and this case also included unusual complications of an ambiguous scheduling
9

Bowbeer, the Court “is persuaded that [Shank] has not intentionally or carelessly neglected
the mandates of the Pretrial Scheduling Order” and rejects Carleton’s argument “that the
proposed claim could have been asserted at an earlier time.” TCS Holdings, Inc., 2008 WL
11347408, at *2 (D. Minn. May 16, 2008); see Def.’s Obj. at 5–9. Judge Bowbeer’s order
granting leave to amend therefore was not clearly erroneous or contrary to law.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings in the
above-captioned matter, IT IS HEREBY ORDERED THAT Carleton’s Objection
[ECF No. 229] is OVERRULED and Magistrate Judge Bowbeer’s October 15, 2018
Order [ECF No. 221] is AFFIRMED.

Dated: January 7, 2019

s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court

order and a shift in the law. A finding of good cause on these unique facts does not give
plaintiffs carte blanche to disregard scheduling orders in future cases.
10