Scott et al v. Buray Energy International, LLC et al

Filing 51

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs motion to amend the complaint is GRANTED. [Doc. 39] The Court notes, however, that plaintiffs first amended complaint bears an exhibit sticker. The Court is unable to remove an exhibit label from a.pdf document. Plaintiffs shall therefore refile the first amended petition without an exhibit sticker by January 1, 2013. IT IS FURTHER ORDERED that the amended case management order issued on August 2, 2012, and amended by order dated Septemb er 5, 2012, is vacated.IT IS FURTHER ORDERED that the Court will issue a separate Order Requiring Joint Proposed Scheduling Plan. Response to Court due by 1/1/2013.) Signed by District Judge Charles A. Shaw on 12/27/12. (JWJ) This is correct filing. Document#52 deleted due to duplicative filing. Modified on 12/27/2012 (KSM).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOE H. SCOTT, SR., Trustee and
LORETTA A. SCOTT, Trustee,
Plaintiffs,
v.
BURAY ENERGY INTERNATIONAL,
LLC, et al.,
Defendants.

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No. 4:12-CV-150 CAS

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion to amend the complaint. Defendants
Buray Energy International, LLC (“Buray”), 4 Square Gas, LLC (“4 Square Gas”), Donald J. Portell
(“Portell”), and John Schofield (“Schofield”) oppose the motion. For the following reasons,
plaintiffs’ motion to amend will be granted.
On January 27, 2012, defendants removed this action from the Circuit Court of the County
of St. Louis, Missouri. Plaintiffs’ complaint alleged two counts: breach of contract (Count I) and
breach of guaranty (Count II). On April 24, 2012, the Court entered a case management order,
setting the date for filing a motion for leave to amend the complaint for October 8, 2012. On August
30, 2012, the parties jointly moved to amend the case management order, which the Court granted.
The deadline for filing a motion for leave to amend the complaint was reset for October 22, 2012.
On October 22, 2012, plaintiffs filed the instant motion for leave to amend the complaint.
Plaintiffs seek to amend their complaint by asserting the following seven counts: breach of contract
against defendants BuRay and 4 Square Gas (Count I); breach of guaranty against defendants Portell
and Schofield (Count II); breach of contract against Buray (Count III); breach of fiduciary duty

against defendants Buray, Portell, and Schofield (Count IV); fraudulent inducement/rescission
against Buray (Count V); declaratory judgment against Buray (Count VI), and a claim for an
accounting against defendants Buray, Portell, and Schofield (Count VII).
Defendants oppose the motion for leave to amend the complaint. Defendants state the new
claims, although involving the same parties and the same business deal, “are radically different from
those alleged in the original Complaint and will infinitely complicate the trial of the case.” (Defs.’
Mem. at 4). Defendants state they will have to engage in different and complex discovery if the
Court allows the amended complaint, and that the deadlines in the case management order will have
to be extended.
Rule 15 of the Federal Rules of Civil Procedure governs amended and supplemental
pleadings. Rule 15(a) provides in pertinent part:

(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, 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.
Rule 15(a), Fed. R. Civ. P.
Although leave to amend is to be freely granted under Federal Rule of Civil Procedure 15(a),
the Court has discretion whether to grant leave to amend. Zenith Radio Corp. v. Hazeltine Research,
Inc., 401 U.S. 321, 330-32 (1971). Factors to consider in determining whether leave to amend
should be granted include but are not limited to (1) whether the motion was filed in bad faith or with
dilatory motive; (2) whether the motion was filed with undue delay; (3) whether leave to amend
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would be unduly prejudicial to the opposing parties; and (4) whether the proposed amendment
would be futile. See Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) (citing Foman
v. Davis, 371 U.S. 178, 182 (1962)); Williams v. Little Rock Municipal Water Works, 21 F.3d 218,
224 (8th Cir. 1994).
There is no suggestion that plaintiffs’ motion for leave to amend was filed in bad faith or
with dilatory motive. Defendants do state, however, that the facts upon which the three new causes
of action are based were known to plaintiffs at the time they filed this action nearly one year ago.
Defendants point to this one year delay as undue delay. While the Court agrees that plaintiffs waited
a considerable length of time before seeking to amend their original complaint, they did so within
the time period allowed in the second amended case management order (“CMO”) for filing a motion
to amend the complaint. Because they are within the time frame allowed in the Court’s CMO,
plaintiffs do not have to meet the more stringent standard of “good cause” set out in Federal Rule
16(b). Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 947-48 (8th Cir. 2012). Additionally, it would
be difficult to find undue delay in their motion to amend when it was filed within the time frame
agreed to by the parties and established by the CMO.
Nor does the Court find that defendants will suffer undue prejudice if plaintiffs are granted
leave to amend their complaint. Defendants state in their opposition to the amended complaint:
Defendants will have to expend far greater amounts of money to defend this case
than anticipated in the defense of the current claim and Defendants have been
completely prejudiced in their investigation of these claimed liabilities and
preparation of their defenses by Plaintiffs’ concealment and unreasonable delay in
filing these claims. Defendants have lost and been substantially and permanently
prejudiced in their ability to preserve the testimony of numerous witnesses, ability
to direct discovery to Plaintiffs, and ability to seek documents, electronic files,
information and even testimony from third parties who are not currently parties to
this suit.
Defs.’ Mem. at 5-6.
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Defendants state their alleged prejudice in broad, general terms. They have offered no
specific examples of the loss of testimony of witnesses, loss of direct discovery, and prejudice in
investigation. Discovery is still ongoing, and the discovery cut off date is not until March 1, 2013.
To the extent additional time is necessary, the Court will order the parties to file a joint proposed
scheduling plan. After the Court receives the parties’ joint proposed scheduling plan, it then may
extend the deadlines of the case management order. Likewise, to the extent the delay causes the
parties to amend their Rule 26(a)(1) disclosures or attend a second mediation, the Court may extend
the deadlines for doing so.
Although defendants state that “[n]o reworking of the Case Management Order can
compensate for this egregious effort to circumvent normal procedures, which is solely caused by the
Plaintiffs failure to include these ‘new’ claims in their original complaint,” defendants have pointed
to no concrete prejudice in their defense of this action if the Court were to allow plaintiffs to amend
the complaint. Moreover, plaintiffs are not “circumventing normal procedures”; they filed their
motion to amend the complaint within the deadline jointly agreed to by the parties.
Finally, defendants do not suggest that plaintiffs’ proposed amended complaint asserts
clearly frivolous claims or defenses. Nor does the Court find the new claims alleged in the amended
complaint to be clearly frivolous.
For the foregoing reasons, the Court will grant plaintiffs’ motion for leave to amend the
complaint.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to amend the complaint is GRANTED.
[Doc. 39] The Court notes, however, that plaintiffs’ first amended complaint bears an exhibit

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sticker. The Court is unable to remove an exhibit label from a .pdf document. Plaintiffs shall
therefore refile the first amended petition without an exhibit sticker by January 1, 2013.
IT IS FURTHER ORDERED that the amended case management order issued on August
2, 2012, and amended by order dated September 5, 2012, is vacated.
IT IS FURTHER ORDERED that the Court will issue a separate Order Requiring Joint
Proposed Scheduling Plan.

__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 27th day of December, 2012.

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