Walker et al v. St. Louis, Missouri City of et al

Filing 36

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' motion for leave to file a second amended complaint [# 32 ] is denied. IT IS FURTHER ORDERED that both parties deadline for filing opposition to the pending motions for summary judgment is extended to October 18, 2016 and their deadlines for filing reply briefs is extended to October 26, 2016. These deadlines will not be further extended. Signed by District Judge Catherine D. Perry on 10/6/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LEON WALKER, JR., et al,
Plaintiffs,
vs.
ST. LOUIS, MISSOURI,
CITY OF, et al.,
Defendants.

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Case No. 4:15 CV 1254 CDP

MEMORANDUM AND ORDER
Plaintiffs seek leave to amend their complaint with updated facts and a new
theory of liability. Plaintiffs filed their motion some ten months after the deadline
for amending pleadings set out in the Case Management Order, and four days after
both parties had filed motions for summary judgment.
This case is brought under 42 U.S.C. § 1983 and alleges violations of
plaintiffs’ constitutional rights as a result of a search conducted of their home
pursuant to a search warrant. Plaintiffs’ motion seeks to dramatically change the
theory of the case. Although plaintiffs make many allegations of wrongdoing,
their current pleadings allege that the violations all began when the police, in
reckless disregard of their rights, obtained a search warrant for and searched the
wrong house. In the proposed second amended complaint, plaintiffs seek to
change the theory to allege that the police intentionally deceived the judge who

issued the search warrant. It is far too late for such a radical change in theory,
especially when plaintiffs have known for many months that defendants contended
they did not make any mistake in seeking the warrant for plaintiffs’ home.
Plaintiffs filed this case in state court on June of 2015 and filed a first
amended petition a few weeks later. Defendants timely removed the case to
federal court. A Case Management Order was issued on September 22, 2015,
following a Rule 16 scheduling conference. The Case Management Order
established a deadline for amending pleadings of November 3, 2015. After some
disputes had delayed completion of discovery, I amended the Case Management
Order on July 1, 2016, to extend the time to complete discovery and the time to file
dispositive motions. Plaintiffs did not at that time mention any need to amend their
pleadings.
Both parties filed motions for summary judgment on September 16, 2016,
the date set by the amended Case Management Order. Four days later, plaintiffs
filed the motion before me now, for leave to file a second amended complaint.
Under Rule 15(a), Fed. R. Civ. P., “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.” Under Rule 16(b), where a scheduling
order has been entered “[a] schedule may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s good cause
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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 15(a).”
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008) (citing
Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008)). “The primary
measure of good cause is the movant’s diligence in attempting to meet the order’s
requirements.” Id. (quoting Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)).
Plaintiffs essentially admit that they were not diligent in seeking this
amendment. The motion to amend says that when counsel read defendants’ motion
for summary judgment he realized that he should have amended his complaint
when he learned new facts in discovery. Defendants’ opposition to the motion
argues that plaintiffs had in their possession the documents forming the basis for
their new theory at least since February 12, 2016, or seven months before the
dispositive motions deadline. At the latest, the factual basis of the plaintiffs’ new
theory was discussed at the deposition of Detective Vaughn held on June 27, 2016,
or two and a half months before the dispositive motions deadline. Plaintiffs
actually sought amendments to the schedule only three days after Detective
Vaughn’s deposition, yet even then they only sought extensions of discovery and
dispositive motions; they did not seek leave to amend the complaint.
Plaintiffs argue that even though they should have sought leave to amend
earlier, defendants knew or should have known they were developing a new theory
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of intentional misconduct. But the plaintiffs are the ones who brought this case,
and they are the ones who know or should have known what their own pleadings
alleged. It is unfair to wait until after the opposing party has filed for summary
judgment to seek to change legal theories. Plaintiffs propose several things that
they say would cure any prejudice to defendants, but those proposals are
insufficient, and in any event, they ignore the good cause standard that applies in
this situation.
Plaintiffs’ reply brief says that they “will likely have to seek leave to dismiss
the entire case under Fed. R. Civ. P. 41 and refile” if I deny the motion to amend.
At this stage of the case Rule 41 would require either a court order or a stipulation
from defendants to allow plaintiff to dismiss the case without prejudice. If
plaintiffs do choose to file a motion to dismiss, all parties should understand that
the court is unlikely to grant an opposed motion. In this order I am extending
somewhat the deadlines for responding to the pending motions for summary
judgment, but those deadlines will not be extended further because of any
additional motions that plaintiff might file.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for leave to file a
second amended complaint [#32] is denied.

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IT IS FURTHER ORDERED that both parties deadline for filing
opposition to the pending motions for summary judgment is extended to
October18, 2016 and their deadlines for filing reply briefs is extended to October
26, 2016. These deadlines will not be further extended.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 6th day of October, 2016.

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