West v. PSS World Medical, Inc.

Filing 57

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that West's motion for leave to file first amended complaint [#32] is denied. IT IS FURTHER ORDERED that defendant's motion for an order denying class certification [#30] is denied. IT IS FURTHER ORDERED that plaintiff's motion to compel [#43] is denied. Signed by District Judge Catherine D. Perry on December 6, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JIMMY WEST, individually and on
Behalf of a class of persons similarly
situated,
Plaintiffs,
vs.
PSS WORLD MEDICAL, INC.,
Defendant.

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Case No. 4:13CV574 CDP

MEMORANDUM AND ORDER
This putative class action is before the Court on three motions: plaintiff
Jimmy West’s motion to file a first amended complaint, defendant PSS World
Medical Inc’s motion for an order denying Rule 23 class certification, and
plaintiff’s motion to compel.
West seeks to amend his complaint to assert additional causes of action
against defendant PSS World Medical, Inc., including claims for breach of
contract, quantum meruit, and unjust enrichment. West argues that the proposed
amendments are based on information recently received through from defendant
through depositions and other discovery; that they involve the same issues raised in
the original complaint; and that they would serve mostly to extend the recovery
period. Defendant PSS World Medical opposes West’s motion to amend. It

argues that West has failed to show the good cause required to amend after the
pleading amendment deadline has passed; that it would be unduly prejudiced by
the amendments; and that the proposed amendments are futile.
After careful consideration, I will deny plaintiff West’s motion to amend,
because I agree that it has not shown good cause. Because I find that ruling on
defendant’s motion to deny class certification is impracticable at this time, I will
also deny that motion.
Finally, I conclude that a recently filed emergency motion to compel
indicates that much of the information contained in the pending motion to compel
is no longer accurate, and so part of that motion is moot. On the parts that do not
appear to have been mooted by recent events, I agree with defendant, and so will
deny the motion to compel.
Discussion
A.

Plaintiff’s First Motion to Amend
As a general rule, leave to amend a party’s pleadings should be freely given

when justice so requires. See Fed. R. Civ. P. 15(a). Different considerations
apply, however, when a party moves to amend his pleadings after a deadline
established in a scheduling order. In particular, because Fed. R. Civ. P. 16(b)(4)
provides that a scheduling order “may be modified only for good cause and with
the judge’s consent,” the Eighth Circuit Court of Appeals requires parties to show
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good cause before amending their pleadings if they move to amend after the
deadline established in the scheduling order. See Popoalii v. Corr. Med. Servs.,
512 F.3d 488, 497 (8th Cir. 2008); Sherman v. Winco Fireworks, Inc., 532 F.3d
709, 716 (8th Cir. 2008).
In considering whether a movant has shown good cause, a district court must
first examine the movant’s diligence in attempting to meet the requirements of the
scheduling order. Sherman, 532 F.3d at 716. If the court determines that the
movant was diligent, it may then consider the undue prejudice to the nonmovant
resulting from the proposed modification of the scheduling order. Id. at 717.
In this case, the deadline for amending pleadings and joining parties was set
for August 2, 2013. This deadline, like the others in the Case Management Order,
was based on a proposal made jointly by the parties. West filed his motion to
amend his complaint on September 12, 2013, a month after this deadline had
passed. Therefore, I will apply the “good cause” standard set forth in Rule 16, Fed.
R. Civ. P.
West argues that he acted diligently in attempting to meet the pleading
amendment deadline. He points out that PSS World Medical refused to schedule
depositions of its representatives until after the August 2 pleading amendment
deadline, and that he filed his motion to amend just one week after he was able to
take those depositions. He contends that the new deposition testimony confirmed
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that PSS World Medical’s meal break policies and practices have not changed
since at least 2009. West argues that before these depositions took place, he was
not aware that the policies had been in place that long because he did not begin
working for PSS World Medical until December 2011. Essentially, West argues
that the depositions revealed “newly discovered facts” that amount to good cause
for amending his complaint.
I disagree. The deadline for amending the pleadings and joining new parties
was August 2, 2013. West states that he expressed concern about an earlier
pleading amendment deadline proposed by PSS World Medical. Nonetheless,
West agreed to the August 2 deadline. Assuming that, as West asserts, PSS World
Medical refused to schedule any depositions before that date, West could have
requested an amendment of the case management order. His failure to do so does
not demonstrate that the amendments deadline “[could not] reasonably [have been]
met despite the diligence of the party seeking the extension.” Sherman, 532 F.3d
at 717 (quoting Fed. R. Civ. P. 16(b), advisory committee note (1983
Amendment)).
Further, West does not explain why he could not have added the three
proposed claims before the pleading amendment deadline. He states that he was
not aware of PSS World Medical’s meal break policies and practices in 2009
because his tenure did not begin until December 2011. Nonetheless, in his original
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complaint, he was able to assert claims under the Missouri Minimum Wage Law
and the Fair Labor Standards Act whose putative class periods dated back to March
27, 2011 and March 27, 2010, respectively. He does not adequately explain why
he could not have asserted the proposed common law claims at the same time.
West finally contends that his motion should be granted because it will cause
defendant no undue prejudice. But because West was not diligent in seeking this
amendment, the potential prejudice to defendants or lack thereof is not at issue.
See Sherman, 532 F.3d at 717.
B.

Defendant’s Motion for Denial of Class Certification
Federal Rule of Civil Procedure 23(c)(1) requires a district judge to

determine “as soon as practicable” whether a class action can be so maintained. A
district court may, in its discretion, consider a motion to deny class certification
before a motion to certify a class has been filed. See In re Baycol Prods. Lit., 593
F.3d 716, 720 n.2 (8th Cir. 2010) (citing Vinole v. Countrywide Home Loans, Inc.,
571 F.3d 935, 939–40 (9th Cir. 2009), vacated on other grounds, 131 S. Ct. 2368
(2011).
Although some discovery related to class certification has been completed,
the parties have further depositions scheduled and there are still ongoing discovery
disputes. Additionally, both parties have sought extensions of time to file briefs

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related to class certification. I therefore find that it is not yet practicable to
determine whether a class action can be maintained in this matter.
C.

Motion to Compel
The pending motion to compel was filed in October. A large part of what it

sought was emails, and it stated that defendant had not produced any emails. This
week plaintiff filed an emergency motion to compel, which I resolved at a
telephone conference. That new motion indicated that a large number of emails
have now been produced, including emails from the custodians listed in the
original motion. I conclude that the motion is moot with regard to the emails, and
will deny it as such.
As to the privilege log, just as I do not believe it is necessary for lawyers to
amend and update a privilege log each time they send their client a letter about the
pending case, I do not believe it is necessary for defendant to produce a privilege
log when the only documents it has withheld are communications between the trial
team and the client specifically about this lawsuit.
Finally, plaintiff asks me to compel defendant to disclose whether there have
been changes in a certain part of its timekeeping system. Defendant has told
plaintiff, in a variety of ways including sworn deposition testimony, that there have
not been changes. Plaintiff says that is incorrect, and seeks to compel yet another
answer to the question. This sounds like impeachment, not a motion to compel.
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Defendant has answered the question. If plaintiff believes the answer provided is
untrue, it can raise that at trial, but I cannot compel defendant to give an answer
that is more satisfactory to plaintiffs than the one defendant has already given.
Accordingly,
IT IS HEREBY ORDERED that West’s motion for leave to file first
amended complaint [#32] is denied.
IT IS FURTHER ORDERED that defendant’s motion for an order denying
class certification [#30] is denied.
IT IS FURTHER ORDERED that plaintiff’s motion to compel [#43] is
denied.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 6th day of December, 2013.

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