Wilson Road Development Corporation et al v. Fronabarger Concreters, Inc. et al

Filing 363

MEMORANDUM AND ORDER re: 340 MOTION for Leave to File Plaintiffs' First Amended Complaint filed by Plaintiff Brenda K. Dumey, Plaintiff Daniel E. Dumey, Plaintiff Wilson Road Development Corporation; motion is DENIED. IT IS HEREBY ORDERED that plaintiffs' motion for leave to amend the complaint [Doc. #340] is denied. Signed by District Judge Carol E. Jackson on 7/29/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
WILSON ROAD DEVELOPMENT
CORPORATION, et al.,
Plaintiffs,
vs.
FRONABARGER CONCRETERS, INC.,
et al.,
Defendants.

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Case No. 1:11-CV-84-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion for leave to file an
amended complaint. Defendants have responded, and the issues are fully briefed.
I.

Legal Standard

As an initial matter, plaintiffs have identified the incorrect standard under
which to bring their motion.

Plaintiffs invoke Federal Rule of Civil Procedure

15(a)(2)’s mandate that a court “should freely give leave when justice so requires.”
But a Case Management Order, issued pursuant to Rule 16, has been in effect since
October 3, 2011.
Rule 16(b)(1) requires the Court to issue a scheduling order in any case not
exempted from such requirements by local rule. Rule 16(b)(3)(A) mandates that:
“The scheduling order must limit the time to . . . amend the pleadings . . . .” Rule
16(b)(4) further provides that: “A schedule may be modified only for good cause
and with the judge’s consent.”

Therefore, it is Rule 16(b)(4), not Rule 15(a)(2),

that governs whether plaintiffs may amend their complaint. See Am. Family Mut.
Ins. Co. v. Hollander, 705 F.3d 339, 350 (8th Cir. 2013) (citing Sherman v. Winco

Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008), which held that, “Rule 16(b)’s
good-cause standard governs when a party seeks leave to amend a pleading
outside of the time period established by a scheduling order, not the more liberal
standard of Rule 15(a)”).
Rather than denying plaintiffs’ motion outright, however, the Court will
construe the motion for leave to amend under Rule 15(a) as a motion to extend the
deadline to amend pleadings established by the Case Management Order, pursuant
to Rule 16(b). And under Rule 16(b)(4), as just stated, plaintiffs must show good
cause for extending the deadline to amend pleadings.
II.

Discussion

The schedule originally set by the Case Management Order established
November 15, 2011, as the deadline to amend pleadings.

Though the Case

Management Order was modified several times, none of those modifications
extended that deadline. Consequently, plaintiffs must show good cause to extend
the deadline to amend the pleadings by nearly four years, mere weeks before trial.
“The good-cause inquiry required under Rule 16(b) is more narrow than the
[Rule 15] analysis . . . .

The primary measure of good cause is the movant’s

diligence in attempting to meet the [case management] order’s requirements.”
Sherman, 532 F.3d at 717 (quotation marks and citations omitted). Because the
good-cause inquiry “focus[es] in the first instance (and usually solely) on the
diligence of the party who [seeks] modification of the [scheduling] order,” a court
“will not consider prejudice if the movant has not been diligent in meeting the
scheduling order’s deadlines.” Id. (citations omitted).

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In Sherman, the Eighth Circuit found that the party seeking to amend to
assert a new affirmative defense was not diligent and thus had not shown good
cause for its delay. Id. That was so because, inter alia, the movant waited to seek
leave to amend “until two and a half years after the suit was filed; a month after
the close of discovery; . . . almost eighteen months after the deadline for amending
pleadings; and eight full months after it was actually aware of the [defense].” Id.
The Eighth Circuit was also unpersuaded that good cause existed because, “no
change in the law, no newly discovered facts, or any other changed circumstance
made the [newly asserted] defense more viable after the scheduling deadline for
amending pleadings.” Id. at 718.
Sherman’s analysis is highly relevant here. Plaintiffs have not shown good
cause to modify the Case Management Order because they were not diligent in
bringing their motion to amend. As noted above, the deadline to amend pleadings
was November 15, 2011, nearly four years before plaintiffs filed their motion. This
delay contradicts any claim of diligence.
Plaintiffs contend that since the complaint was filed, factual developments
have occurred which in the interest of justice warrant amendment.

Discovery on

all but one issue closed on January 17, 2013. Plaintiffs did not seek to amend at
that time based on new facts acquired during the course of discovery.
Plaintiffs’ proposal to “clean up” the complaint by excising references to a
dismissed defendant and to dismissed claims also does not constitute good cause
for the amendment.

The references to the dismissed party and claims do not

create confusion, and the Court finds it unnecessary to delete them from the
complaint.

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Finally, the Environmental Protection Agency’s issuance of the Third FiveYear Review Report regarding the MEW site does not establish good cause.
Plaintiffs had access to the EPA report on August 5, 2014, and they did not seek to
file an amended complaint at that time. Thereafter, the Court reopened discovery
for the limited purpose of addressing the EPA report. New deadlines—the last of
which was January 16, 2015—were established for expert discovery and for filing
exhibit lists, witness lists, and discovery designations. Plaintiffs did not seek to file
an amended complaint to add new claims based on the EPA report at that time.
Instead they delayed until just weeks before trial.

Plaintiffs have provided no

justifiable excuse for their lack of diligence, and so they have not shown good cause
for extending the deadline to amend pleadings on the basis of any new claims
gleaned from the EPA report.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for leave to amend the
complaint [Doc. #340] is denied.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 29th day of July, 2015.

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