H. et al v. St. Louis County, Missouri et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion for leave to file a second amended complaint [Doc. #102] is denied. Signed by District Judge Carol E. Jackson on 4/12/2016. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
A.H., et al.,
ST. LOUIS COUNTY, MISSOURI, et al.,
Case No. 4:14-CV-2069 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion for leave to file a second
Defendant has responded in opposition, and the issues are
Plaintiffs’ decedent, Jereme M. Hartwig, was incarcerated in the St. Louis
County Jail where he committed suicide. Plaintiffs are the decedent’s children and
mother. In the first amended complaint, plaintiffs assert claims against defendants
St. Louis County, psychiatrist Wendy Magnoli, corrections officer Lauren Abate, and
Herbert Bernsen, the director of the St. Louis County Department of Justice
Services. The remaining claims in the complaint include alleged violations of Mr.
Hartwig’s civil rights under 42 U.S.C. § 1983 and the Fourteenth Amendment of the
Constitution (Counts I and III) and a supplemental state law claim of wrongful
death (Count V).
Plaintiffs filed their original complaint on December 17, 2014.
On July 17,
2015, the Court granted the motion of defendant St. Louis County, Missouri to
dismiss plaintiffs’ Americans with Disability Act (ADA) and Rehabilitation Act claims
in Count II, because plaintiffs did not have standing on their own behalf to assert
See Memorandum and Order at 8 [Doc. #36] (“The plaintiffs in this
case do not bring this action as personal representatives, trustees, administrators,
or otherwise on behalf of Hartwig’s estate. Instead, plaintiffs bring this action on
their own behalf, and they have not shown that they have standing to do so.”); id.
at 8 n.3 (citing Mo. Rev. Stat. § 537.020 and noting that under Missouri law, a
cause of action for personal injuries or death survive to the personal representative
of the deceased party). After the Court dismissed these claims, plaintiffs’ counsel
asserts that he “conducted extensive research regarding an ADA/Rehabilitation Act
claim of discrimination and standing regarding a claim for a deceased person,” and
thereafter prepared a petition for determination of heirship to be filed in probate
court. Pltffs’ Mot. ¶9 [Doc. #102].
On November 13, 2015, the deadline in the case management order for
amending pleadings without leave of court, plaintiffs filed their first amended
complaint, again asserting ADA and Rehabilitation Act claims against defendant St.
Louis County. In the amended complaint, decedent Hartwig’s children stated that
they were concurrently filing a petition for determination of heirship in state court
pursuant to Mo. Rev. Stat. § 473.663, and thus were now bringing Count II as heirs
of Mr. Hartwig’s estate.
First Amd. Comp. ¶94 [Doc. #49].
The Court again
dismissed the count for plaintiffs’ lack of standing, noting that the plaintiffs did not
allege that they had in fact been judicially determined to be the heirs of Mr.
Hartwig’s estate and thus were entitled to recover for claims that survived his
Mem. & Order at 4 [Doc. #59].
As such, plaintiffs continued to lack
standing to assert any claims on decedent’s behalf.
On January 13, 2016, plaintiffs’ counsel filed a petition for determination of
heirship in state court on behalf of Mr. Hartwig and his children. See Defs.’ Ex. A
[Doc. #106-1]; Jereme Michael Hartwig, Deceased, 16SL-PR00097.
On April 4,
2016, the county probate court entered a judgment determining heirs, finding
plaintiffs A.H., B.H., and Catlin Dickerson to be Jereme M. Hartwig’s heirs. Pl.’s Ex.
1 [Doc. #102-1]. As such, plaintiffs contend that they now have standing to assert
ADA and Rehabilitation Act claims against defendant St. Louis County as the
declared heirs of Mr. Hartwig’s estate, forming the basis for their proposed second
As noted above, the deadline set forth in the case management order for the
amendment of pleadings without leave of court was November 13, 2015. See [Doc.
#41]. As such, plaintiffs must satisfy the standard set forth under Rule 16(b)(4) of
the Federal Rules of Civil Procedure to modify the scheduling order. Under Rule
16(b) of the Federal Rules of Civil Procedure, a case management order “may be
modified only for good cause and with the judge’s consent.”
Fed. R. Civ. P.
“The primary measure of good cause is the movant’s diligence in
attempting to meet the [scheduling] order’s requirements.”
Sherman v. Winco
Fireworks, Inc., 532 F.3d 709, 716–17 (8th Cir. 2008) (quoting Rahn v. Hawkins,
464 F.3d 813, 822 (8th Cir. 2006)).
“While the prejudice to the nonmovant
resulting from modification of the scheduling order may also be a relevant factor,
generally, [the court] will not consider prejudice if the movant has not been diligent
in meeting the scheduling order’s deadlines.” Id. at 717; see Freeman v. Busch,
349 F.3d 582, 589 (8th Cir. 2003) (affirming the district court’s denial of plaintiff’s
motion to amend her complaint under Rule 16(b) because she provided no reasons
why the amendment could not have been made earlier or why her motion to amend
was filed so late).
Plaintiffs have not provided a sufficient explanation for their delay in seeking
a determination of heirship to establish standing to assert claims on behalf of
decedent Hartwig’s estate. Plaintiffs were put on notice of their lack of standing in
the July 17, 2015 order, yet they waited until January 13, 2016 to file a petition in
Additionally, in their first amended complaint plaintiffs represented
that they were “concurrently filing” the petition for determination of heirship in
state court, when, in fact, the petition was not filed until two months later. The
Court finds that plaintiffs have not demonstrated diligence in meeting the
scheduling order’s deadlines.
Moreover, allowing plaintiffs to file this belated proposed amended complaint
after the deadline for completing all discovery has passed and the deadline for filing
dispositive motions is just weeks away would cause prejudice to defendants’ ability
to mount a defense to the newly asserted claims. Therefore, the Court concludes
that plaintiffs have not established good cause for the modification they seek.
IT IS HEREBY ORDERED that plaintiffs’ motion for leave to file a second
amended complaint [Doc. #102] is denied.
Dated this 12th day of April, 2016.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
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