Browning v. Apex Physical Therapy, LLC et al

Filing 59

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Leave to File Amended Complaint 56 is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Supplement the Record 55 is GRANTED. Signed by District Judge John A. Ross on 1/8/2021. (SMM)

Case: 4:19-cv-02395-JAR Doc. #: 59 Filed: 01/08/21 Page: 1 of 4 PageID #: 663

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JILL BROWNING,
Plaintiff,
v.
APEX PHYSICAL THERAPY
Defendant.

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No. 4:19-CV-02395 JAR

MEMORANDUM AND ORDER
This matter is before the court on Plaintiff's Motion for Leave to Submit Additional Factual
Documents, (Doc. No. 55), and Plaintiff's Motion for Leave to File an Amended Complaint. (Doc.
No. 56). Defendant does not oppose Plaintiff's Motion for Leave to Submit Additional Factual
Documents, (Doc. No. 57), but does oppose Plaintiff's Motion for Leave to File an Amended
Complaint. (Doc. No. 58). The motions are fully briefed and ready for disposition. For the reasons
set forth below, Plaintiff's motion for leave to submit additional factual documents will be granted
and Plaintiff's motion for leave to file an amended complaint will be denied.
Background
On August 23, 2019, Defendant removed this case from St. Louis City Circuit Court. (Doc.
No. 1). Plaintiff alleges claims arising out of the Defendant’s failure to bill Plaintiff’s insurer for
physical therapy services. Defendant moved to dismiss all of Plaintiff’s claims. (Doc. No. 6). On
March 25, 2020, this Court dismissed all of Plaintiff’s claims except Plaintiff’s claim for tortious
interference with a contract. (Doc. No. 15).
On July 31, 2020, Defendant moved for summary judgment on Plaintiff’s remaining claim.
(Doc. No. 24). Plaintiff indicated in her response to Defendant’s motion for summary judgment

Case: 4:19-cv-02395-JAR Doc. #: 59 Filed: 01/08/21 Page: 2 of 4 PageID #: 664

that “the exact amount of damages will be determined at trial” and that discovery on these matters
is ongoing. (Doc. No. 35). In light of Plaintiff’s representation that additional discovery will
uncover material facts, the Court ordered Plaintiff to submit in writing what additional discovery
was required to determine damages. (Doc. No. 41). Plaintiff filed a response to the order. (Doc.
No. 43). The Court then ordered the parties to meet and confer to attempt to resolve discovery
issues. (Doc. No. 47). The parties discussed what discovery was required and Defendant supplied
Plaintiff with additional documents. (Doc. No. 48-49). Plaintiff then supplemented its opposition
to summary judgment. (Doc. No. 49). The deadline to file a motion for amendment of complaint
pursuant to the Case Management Order was on August 1, 2020. (Doc. No. 20).
This case was referred to Alternative Dispute Resolution on November 5, 2020. (Doc. No.
51). The parties engaged in mediation on December 18, 2020. (Doc. No 53). At mediation,
Defendant produced six pages of documents (“Intake Documents”) to Plaintiff for the first time.
(Doc. No. 55). These documents are the forms Plaintiff filled out during intake. Plaintiff does not
contend that the failure to produce these documents was intentional. Plaintiff now moves to submit
these additional documents, (Doc. No. 55), and to file an amended complaint. (Doc. No. 56).
Motion to submit additional documents
Plaintiffs ask that the Court consider the Intake Documents, and arguments related to those
documents, when it rules on Defendant's Motion for Summary Judgment. (Doc. No. 24).
Defendant does not oppose Plaintiff's motion, instead arguing that even considering the additional
evidence, summary judgment in its favor is still appropriate. The Court will consider the additional
evidence in ruling on Defendant's Motion for Summary Judgment.

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Motion to Amend Complaint
It is well established that a “motion for leave to amend filed outside the district court’s
Rule 16(b) scheduling order requires a showing of good cause.” Kmak v. American Century Cos.,
Inc., 873 F.3d 1030, 1034 (8th Cir. 2017) (quoting Williams v. TESCO Servs., Inc., 719 F.3d 968,
977 (8th Cir. 2013)). “The primary measure of good cause is the movant’s diligence.” Id. (quoting
Harris v. FedEx Nat’l LTL, Inc., 760 F.3d 780, 786 (8th Cir. 2014)). A court may also deny leave
to amend when there is a showing of one of the following “compelling reasons:” “undue delay,
bad faith[ ] or dilatory motive, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility of the amendment.” Id. Furthermore,
it is not an abuse of discretion to deny a motion to amend the pleadings where the nonmoving party
has moved for summary judgment. See Davis v. City of St. John, 182 Fed. App’x. 626, 627 (8th
Cir. 2006) (unpublished per curiam) (affirming denial of leave to amend where plaintiffs sought
to amend their complaint eight months after the Case Management Order’s deadline for
amendment of pleadings).
Pursuant to the initial Case Management Order, the deadline for amending pleadings was
August 1, 2020. (Doc. No. 20). Thus, Plaintiff must show good cause for the amendment under
Rule 16(b)(4). Kmak, 873 F.3d at 1034. Plaintiff contends that amendment is required here because
the Intake Documents are new evidence of Defendant’s alleged scheme and the new information
“simplifies class certification.” (Doc. No. 56 at 2). Defendants respond that leave to amend should
be denied because Plaintiff has not articulated what their amendment would include, Defendant
would be prejudiced by amendment as they have already filed for summary judgment, amendment
is futile, and Plaintiff's motion is a bad faith attempt to prolong litigation.

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Plaintiff has not attached a proposed amended complaint, nor has she attempted to explain
what alterations the amendment would make to her complaint. Because Plaintiff has not explained
why or how these new documents affect her claim, her motion to amend will be denied. See
Verhein v. South Bend Lathe, Inc., 598 F.2d 1061, 1063 (7th Cir. 1979) (denying motion to amend
where plaintiff did not attach a proposed amended complaint or explain in brief how complaint
would be amended.)
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File Amended Complaint
[56] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Supplement the Record
[55] is GRANTED.

Dated this 8th day of January, 2021.

_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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