MCI Communications Services, Inc. et al v. Maverick Cutting and Breaking LLC
Filing
57
ORDER; denying 34 MCI's Objection to Magistrate Judge Rau's Order Denying Plaintiffs' Motion to Amend Scheduling Order to File Amended Complaint and Add a Party Based on Newly Discovered Evidence. (Written Opinion) Signed by Chief Judge John R. Tunheim on 9/24/2018. (JMK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MCI COMMUNICATIONS SERVICES,
INC. and MCIMETRO ACCESS
TRANSMISSION SERVICES LLC,
Civil No. 17-1117 (JRT/SER)
Plaintiffs,
ORDER
v.
MAVERICK CUTTING & BREAKING
LLC,
Defendant.
Seth J. Leventhal, Esq., Leventhal PLLC, Minneapolis, Minnesota, for
plaintiffs.
Rachel B. Beauchamp, Esq., Cosineau, Van Bergen, McNee & Malone, PA,
Minnetonka, Minnesota, for defendant.
This matter comes before the Court on Plaintiffs MCI Communications Services,
Inc. and MCIMetro Access Transmission Services LLC’s (collectively, “MCI”) objection
to Magistrate Judge Rau’s order denying Plaintiffs’ Motion to Amend the Scheduling
Order to File an Amended Complaint and Add a Party. (Pls.’ Obj. to Order Den. Pls.’ Mot.
to Amend). For the reasons below this Court will deny Plaintiffs’ motion.
BACKGROUND
On April 14, 2015, while Defendant Maverick Cutting and Breaking LLC
(“Maverick”) was performing sawcutting work, Maverick cut two fiber-optic cables
belonging to MCI. (Compl. ¶¶ 14, 16, Docket No. 1). Maverick was working at the
direction of Carl Bolander & Sons (“Bolander”), a subcontractor working on a bridge
construction project for the City of Saint Paul. (Aff. of Rachel Beauchamp, Exs. A-D,
Docket No. 30-1). Bolander prepared an incident report stating, “Maverick Saw Cutting
was instructed to cut the road surface . . . .” (Id. Ex. B p.1). Further, Bolander assisted
Verizon, the sole member of MCIMetro Access Transmission Services LLC, in its postincident investigation. (Id. Ex. D p.2). A Verizon Damage Claims Web report, presumably
prepared by Verizon, states, “I believe Carl Bolander should be billed. they [sic] did not
pot hole our cable on site before work started.” (Id. Ex. E, pg. 4). MCI was also aware
that Kraemer North America, LLC (“Kraemer”) was a key player in this project because
MCI sought discovery from Kraemer.
(Proszek Decl. ¶¶ 5-7; see Aff. of Rachel
Beauchamp, Ex. D).
MCI brought this action alleging trespass, negligence, and statutory liability against
Maverick on April 11, 2017. (Compl. ¶¶ 12-26). The court issued the Pretrial Scheduling
Order after a scheduling conference. (Pretrial Scheduling Order, Docket No. 16). Parties
requested a deadline of November 3, 2017 as the last day for the parties to file motions to
amend the pleadings to add claims or parties. (Order dated June 15, 2018 p.2, Docket No.
33). The court agreed and set November 3, 2017 as the deadline.
MCI sought documents, including contracts that they believed existed, related to
Maverick’s work on the work project from Kraemer, Bolander, and the City of Saint Paul.
(Proszek Decl. ¶¶ 5-6). The last response from these three entities occurred in August
2017, and none of the three produced any contracts related to the work project. (Id. ¶¶ 8,
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11-12). MCI then chose to depose witnesses. On March 22, 2018, Kraemer produced a
contract between itself and the City of Saint Paul (“Kraemer Contract”) and a contract
between itself and Bolander (“Bolander Contract”) at its deposition. (Id. ¶ 15).
MCI filed a Motion to Amend on April 26, 2018 arguing that the contracts were
new evidence that established good cause to amend its Complaint. (See Mem. in Supp. of
Mot. to Amend Scheduling Order, Docket No. 25). The Magistrate Judge denied this
motion in an Order. (Order dated June 15, 2018, Docket No. 33). MCI appealed the order.
(Pls.’ Obj. to Order Den. Pls.’ Mot. to Amend June 29, 2018, Docket No. 34).
DISCUSSION
I.
STANDARD OF REVIEW
“The standard of review applicable to an appeal of a Magistrate Judge's order on
nondispositive pretrial matters is extremely deferential.” Skukh v. Seagate Tech., LLC, 295
F.R.D. 228, 235 (D. Minn. 2013); Roble v. Celestica Corp., 627 F. Supp. 2d 1008, 1014
(D. Minn. 2007). Reversal is only appropriate if the order is “clearly erroneous or contrary
to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); D. Minn. LR 72.2(a)(3).
For an order to be clearly erroneous, the district court must be “left with a definite and firm
conviction that a mistake has been committed.” Lisdahl v. Mayo Found., 633 F.3d 712, 717
(8th Cir. 2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).
“[T]he district court has inherent power to review the final decision of its
magistrates.” Bruno v. Hamilton, 521 F.2d 114, 116 (8th Cir. 1975).
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II.
LEAVE TO AMEND THE COMPLAINT
When a party seeks to amend a complaint outside of the applicable scheduling order,
the Court must first find that there is good cause for doing so. Fed. R. Civ. P. 16(b)(4); see
also Williams v. TESCO Servs., Inc., 719 F.3d 968, 977 (8th Cir. 2013). “The primary
measure of good cause is the movant's diligence in attempting to meet the order's
requirements.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir.
2008) (quoting Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006), overruled on other
grounds in Avichail ex rel. T.A. v. St. John's Mercy Health Sys., 686 F.3d 548, 552 (8th
Cir. 2012)).
A.
Clearly Erroneous
The Magistrate Judge’s order was not clearly erroneous, and was well within the
Magistrate Judge’s discretion to deny. The Court has discretion to allow leave for parties
to amend pleadings outside of a showing of diligence so long as good cause is satisfied,
but MCI has not done so here. MCI correctly cites to Portz v. St. Cloud State University,
noting that diligence is not the only method of showing good cause. See 2017 WL
3332220, 2017 U.S. Dist. LEXIS 123495 (D. Minn 2017). In Portz, unlike here, the
plaintiffs’ showing of good cause did not rely solely on new evidence. Id. at *4. In Portz,
the plaintiffs requested documents from the defendant, and the defendant twice asked
plaintiffs for extensions of the deadline to comply, delaying the document production two
weeks. Id. at *1. Despite these deadline extensions, defendant failed to meet the deadline
and produced to plaintiffs two CDs containing vast amounts of information more than two
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weeks after the production deadline, and only two weeks before the deadline to amend the
pleadings. Id. at *2. Plaintiffs then filed a motion to amend the complaint based on new
evidence one day after the deadline for amending the pleadings had passed. Id. In granting
plaintiffs’ motion to amend, the Court considered the fact that plaintiffs had discovered
new evidence in addition to the delay caused by defendants in producing requested
documents; the plaintiffs missing the deadline by only one day; the plaintiffs filing the
motion only a little over two weeks after receiving significant discovery and under seven
months after filing the initial complaint; the plaintiffs filing the motion four months before
the close of discovery; and the defendants not being prejudiced by the granting of the
motion. Id. at *4. Here, MCI discovered new evidence, but missed the deadline to amend
by more than five months; no defendants requested extensions to the production deadlines
causing MCI any delay in reviewing documents; MCI waited over a month to file the
motion after receiving the Kraemer Contract and Bolander Contract; the motion was filed
over a year after the initial complaint; MCI filed the motion only five days before the close
of fact discovery, and just over two months before the close of expert discovery; Maverick
would be prejudiced. MCI has not shown that it was diligent in discovery or in filing the
Motion to Amend the Scheduling Order to File Amended Complaint and Add a Party.
B.
Contrary to Law
The Magistrate Judge’s order was not contrary to law as a court has wide discretion
to grant or deny a motion to amend the pleadings after the deadline to do so has passed.
Although there is no law or duty requiring a party to informally reach out to the targets of
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discovery upon not receiving certain documents that the party believes to exist, it is not
contrary to law for the Magistrate Judge to view the party’s inaction as failing in diligence.
As stated in Portz, “there is not a clear test for when a party is diligent enough to establish
good cause.” Portz, 2017 WL 3332220 *4. As such, the Magistrate Judge requiring more
than inaction from MCI does not contradict any law.
MCI argues that repeatedly seeking documents that may not exist may be perceived
as harassing, vexatious, or as a fishing expedition, but the case MCI cites is inapplicable
here. In Roberts v. Shawnee Mission Ford, Inc., the repeated requests were considered a
fishing expedition because they were subpoenas that were not directed at obtaining relevant
discoverable information, and were served on non-parties to the action. 352 F.3d 358, 361
(8th Cir. 2003). While repeated formal requests, such as the subpoenas in Roberts, that
seek irrelevant non-discoverable information may be a fishing expedition, should MCI
have reached out informally to Maverick for documents directly related to the action, it is
unlikely that a Court would have found that to be a fishing expedition. Furthermore, the
Magistrate Judge did not set an impractical and inefficient standard for diligence by
requiring MCI to reach out to Maverick informally. The facts particular to this action,
specifically that MCI had expected contracts between the contractors, and the City of Saint
Paul to exist, that it was likely such contracts existed because this was a public work order,
and that no contract was produced pursuant to document requests, do not make this an
impractical and inefficient standard for this case. The Magistrate Judge does not set a
standard for all cases, but requires more of MCI than inaction upon receiving no contracts.
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The Magistrate Judge’s order was not clearly erroneous, and was well within the
Magistrate Judge’s discretion to deny. The Magistrate Judge’s order was not contrary to
law as a Court has wide discretion to grant or deny a motion to amend the pleadings after
the deadline to do so has passed. After review of the Report and Recommendation the
Court finds that the Magistrate Judge appropriately denied MCI’s Motion. Accordingly,
the Court overrules MCI’s appeal and adopts the Report and Recommendation of the
Magistrate Judge.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
MCI’s Objection to Magistrate Judge Rau’s Order Denying Plaintiffs’
Motion to Amend Scheduling Order to File Amended Complaint and Add a Party Based
on Newly Discovered Evidence [Docket No. 34] is DENIED.
DATED: September 24, 2018
at Minneapolis, Minnesota.
__________
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s/John R. Tunheim
_______
JOHN R. TUNHEIM
Chief Judge
United States District Court
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