Henschke et al v. Republic Services, Inc. et al

Filing 99

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs shall have seven (7) days from the date of this Memorandum and Order to notify the Court whether they intend to dismiss the negligence claim and Allied as a Defendant with or without preju dice. If Plaintiffs intend to dismiss the negligence claim and Allied as a Defendant with prejudice, the Court will grant the motion to amend. If Plaintiffs intend to dismiss the negligence claim and Allied as a Defendant without prejudice, the C ourt will deny the motion to amend. If Plaintiffs do not respond within the prescribed time, the Court will grant the motion to amend, specifying that the negligence claim and Allied as a Defendant are dismissed with prejudice. Signed by District Judge Audrey G. Fleissig on June 29, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOHN HENSCHKE, et al.,
Plaintiffs,
vs.
REPUBLIC SERVICES, INC., et al.,
Defendants.

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Case No. 4:14CV01570 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ motion for leave to file an amended
complaint that effectively dismisses their negligence claim and Allied Services, LLC
(“Allied”) as a Defendant. For the reasons set forth below, the Court will reserve ruling
on the motion, to give Plaintiffs a chance to clarify whether they intend to dismiss the
negligence claim and Allied as a Defendant with or without prejudice.
BACKGROUND
Plaintiffs initially filed this action against three Defendants — Republic Services,
Inc. (“Republic”), Allied, and Bridgeton Landfill, LLC — alleging that an underground
fire/subsurface smoldering event occurring at the landfill, collectively owned and operated
by Defendants, emitted an obnoxious odor and resulted in a temporary nuisance, caused by
Defendants’ negligence. On March 31, 2016, all Defendants filed a joint motion for
partial summary judgment on Plaintiffs’ claim of negligence, and Republic and Allied filed
a separate joint motion for summary judgment with regard to their liability.

On May 23, 2016, by which time the deadline (June 30, 2015) for amendment of
pleadings had already passed, Plaintiffs filed the present motion to amend their complaint.
The proposed amended complaint effectively dismisses the negligence claim against all
Defendants, and also dismisses Allied as a Defendant. In addition, the amended
complaint adds that the underground fire and Defendants’ failure to remediate it
constituted an “unreasonable use” of Defendants’ property, causing the nuisance.
Defendants object on the grounds that Plaintiffs are seeking to amend the complaint
only to avoid Defendants’ motions for summary judgment, and an amendment at this time
will unduly prejudice Defendants and delay the case. Defendants further argue that
Plaintiffs are improperly adding “important substantive allegations” by adding the
language with regard to the “unreasonable use” of the land.
Plaintiffs reply that the Court should allow the amendment because it narrows the
legal issues before the Court, does not bring any new claims against Defendants, and will
not delay the litigation. Plaintiffs further reply that Defendants have been well aware of
Plaintiffs’ nuisance claim, of which “unreasonable use” is an element. Therefore,
Plaintiffs argue, the proposed amended complaint raises no new allegations.
DISCUSSION
When the deadline for amendment of pleadings has passed, the party requesting
leave to file an amended pleading must show “good cause” as well as obtain the court’s
consent. Fed. R. Civ. P. 16(b)(4); see also Trim Fit, LLC v. Dickey, 607 F.3d 528, 531
(8th Cir. 2010). A court may deny a motion to amend after the deadline for amendment

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has passed, upon a showing of undue prejudice to the other party. Trim Fit, 607 F.3d at
531.
The Court agrees with Plaintiffs that allowing the amendment would not prejudice
Defendants or delay the case, provided that the negligence claim and Allied as a Defendant
are dismissed with prejudice, as more fully discussed below. Defendants cite various
cases in which courts denied motions to amend after the deadlines for amendment had
passed. However, those cases are distinguishable because the moving parties therein
attempted to add additional claims or change the claims. Here, Plaintiffs’ amendment
would eliminate a claim and dismiss a party.
Under Missouri law, “[n]uisance is the unreasonable, unusual, or unnatural use of
one’s property so that it substantially impairs the right of another to peacefully enjoy his
property.” Philips v. Citimortgage, Inc., 430 S.W.3d 324, 332 (Mo. Ct. App. 2014).
Because reasonableness is an element of a nuisance claim, the Court does not believe
Plaintiffs have raised new allegations by adding “unreasonable use” into the amended
complaint, when they already pled nuisance in their original complaint.
However, it is unclear to the Court whether Plaintiffs intend their dismissal of their
negligence claim and of Allied as a Defendant to be with or without prejudice. Given that
the motion to amend was filed after all Defendants moved for partial summary judgment
on the negligence claim, and after Allied moved for summary judgment on the issue of
liability, the Court will not grant the motion unless the dismissals are to be with prejudice.
See Leffall v. City of Elsberry, Mo., No. 4:15-CV-398-SPM, 2016 WL 2866422, at *5
(E.D. Mo. May 17, 2016) (construing the plaintiff’s voluntary dismissal of a claim, after a
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motion for summary judgment on that claim had been filed by the defendants, as a motion
to dismiss the claim without prejudice; granting the motion to dismiss, but specifying that
the dismissal was with prejudice, as a dismissal without prejudice would unduly prejudice
the defendants).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs shall have seven (7) days from the date
of this Memorandum and Order to notify the Court whether they intend to dismiss the
negligence claim and Allied as a Defendant with or without prejudice. If Plaintiffs intend
to dismiss the negligence claim and Allied as a Defendant with prejudice, the Court will
grant the motion to amend. If Plaintiffs intend to dismiss the negligence claim and Allied
as a Defendant without prejudice, the Court will deny the motion to amend. If Plaintiffs
do not respond within the prescribed time, the Court will grant the motion to amend,
specifying that the negligence claim and Allied as a Defendant are dismissed with
prejudice.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of June, 2016.

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