Lindsay et al v. World Factory, Inc. et al

Filing 43

ORDER granting 20 Motion to Amend Answer. World Factory must promptly file its Amended Answer. Signed by Magistrate Judge Carolyn S Ostby on 3/18/2015. (JDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
TODD J. LINDSAY and KELLIE
LINDSAY,

CV-14-48-BLG-SPW-CSO

ORDER GRANTING MOTION
TO AMEND ANSWER

Plaintiffs,
vs.
WORLD FACTORY, INC., and
JOHN DOES I-X,
Defendants.

This is a products liability action. Plaintiffs Todd J. and Kellie
Lindsay (“Lindsays”) claim that Todd was injured when the scaffolding
upon which he was working collapsed causing him to fall. First Am.
Cmplt. (ECF 16) at ¶¶ 9-11.
The Lindsays assert that Defendant World Factory, Inc. (“World
Factory”) “marketed, controlled, distributed, imported, sold,
participated in the design of, and directed the manufacturing of the
multi-purpose scaffolding at issue here.” Id. at ¶6. They claim that the
scaffolding was defective in its design and manufacture, and because
World Factory failed to adequately warn consumers of the scaffolding’s
dangers. They further claim that World Factory is liable under

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products liability (count one) and loss of consortium (count three)
theories of recovery, and also claim entitlement to punitive damages
(count two). Id. at ¶¶ 17-48.
Pending is World Factory’s motion to amend its Answer to assert
misuse or misassembly in defense. ECF 20 at 1; World Factory’s
Opening Br. (ECF 21) at 2. The Lindsays oppose the motion. Lindsays’
Resp. Br. (ECF 22). Having considered the parties’ arguments and
submissions, the Court will grant the motion.
I.

RELEVANT PROCEDURAL BACKGROUND
On February 19, 2014, the Lindsays filed their Complaint in

Montana state court. Cmplt. (ECF 5) at 1.
On April 7, 2014, World Factory removed the action to this Court.
Notice of Removal (ECF 1) at 1.
On April 10, 2014, World Factory filed its Answer. Answer (ECF
6). In it, World Factory asserted “misuse” as its Second Affirmative
Defense. Id. at 9.
On April 11, 2014, the Court issued an order setting this case for
a preliminary pretrial conference to put in place a schedule. Order
Setting PPTC (ECF 7).

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On April 24, 2014, the Court conducted a preliminary pretrial
conference with counsel. Minute Entry (ECF 12). The same day, the
Court filed the Scheduling Order setting July 18, 2014, as the deadline
to amend pleadings. Sched. Order (ECF 13) at ¶ 1.
On July 18, 2014, the Lindsays filed their First Amended
Complaint. First Am. Cmplt. (ECF 16).
On August 1, 2014, World Factory filed its Answer to the First
Amended Complaint. Ans. to First Am. Cmplt. (ECF 17). In it, World
Factory did not assert misuse as an affirmative defense as it had done
in its original Answer. Id.
On February 13, 2015, World Factory filed the motion at hand
seeking to reassert the misuse affirmative defense. Mtn. to Amend
Answer (ECF 20).
II.

PARTIES’ ARGUMENTS
World Factory argues that the Court should allow its proposed

amendment for three principal reasons. First, World Factory argues
that it initially asserted the misuse defense in its Answer to the
Lindsays’ original Complaint. But it withdrew the defense after
receiving an “admonition” from the Court at the preliminary pretrial

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conference, albeit with leave to renew the defense if discovery revealed
evidence to support it. ECF 21 at 2.
Second, World Factory argues that good cause exists for it to
amend its Answer to assert the misuse or misassembly defense. It
argues that, even though it has been diligent, it could not have met the
Scheduling Order’s July 18, 2014 deadline to amend because: (1) the
Lindsays filed their First Amended Complaint on July 18, 2014, which
would not have allowed it sufficient time to amend its Answer and
comply with the deadline, id. at 6, 9; (2) despite Todd Lindsay’s
September 10, 2014 deposition testimony that the scaffold was properly
assembled on the day of the accident, the Lindsays’ liability expert,
Thomas A. Berry, opined in his October 10, 2014 report, that a person
assembling the scaffold could mistakenly believe that it was properly
assembled when it actually was not, id. at 8; and (3) discussions during
the parties’ December 2, 2014 mediation led World Factory to believe
that the Lindsays may argue at trial that Todd Lindsay did not
properly assemble the scaffolding on the day of the accident, id. at 8-9.
Third, World Factory argues that allowing it to amend its Answer
to assert the misuse defense would neither prejudice the Lindsays nor

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delay the case. It argues that the Lindsays “were on notice that issues
existed regarding proper assembly of the scaffolding because they
injected those issues into the case through their First Amended
Complaint, their liability expert disclosure, and their theory during
mediation.” Id. at 10. Also, World Factory maintains that its proposed
amendment would result in no additional discovery and no further
modification of Scheduling Order deadlines. Id.
In response, the Lindsays argue that the Court should not permit
World Factory to amend its Answer for several reasons. First, they
argue that as early as June 27, 2014, through their responses to World
Factory’s discovery requests, they stated their theories of liability in
detail. They argue that “World Factory knew precisely what [their]
theories were prior to [the] July 18, 2014[ ]” deadline to amend
pleadings. ECF 22 at 2-3. Thus, the Lindsays argue, World Factory’s
argument that it first learned of possible misuse or misassembly when
the Lindsays filed their First Amended Complaint on July 18, 2014, is
false, and “World Factory had ample time to add the affirmative
defense of misuse prior to the July 28, 2014, deadline to amend the
pleadings.” Id. at 3-4, 12.

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Second, the Lindsays argue that World Factory has failed to
explain why it did not add the misuse defense when it filed its Answer
to Plaintiffs’ First Amended Complaint on August 1, 2014. And, they
argue, World Factory also has not explained why it did not move to
amend at “subsequent dates cited in its brief, all of which were months
ago.” Id. at 4. Instead, the Lindsays note, World Factory now seeks to
amend its Answer on “the eve of the close of discovery[.]” Id.
Third, the Lindsays argue that the factors courts are to consider
in determining whether to permit amendment of the pleadings weigh in
favor of denying World Factory’s motion. They argue that: (1) World
Factory engaged in undue delay and was not diligent in seeking to
amend, but rather “allowed nearly eight months to pass” before filing
the instant motion, id. at 5-6; (2) World Factory does not have, and
cannot show, “good cause” for seeking to amend seven months beyond
the deadline for doing so because it could have added the misuse
defense: (a) when it filed its Answer to the Amended Complaint on
August 1, 2014; (b) shortly after it took Todd Lindsay’s deposition on
September 10, 2014; or (c) after mediation held on December 2, 2014,
rather than waiting until two weeks before the close of discovery, id. at

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6-7; (3) World Factory’s argument that “Plaintiffs may assert at trial
that the scaffolding was improperly assembled” makes no sense
because Todd Lindsay’s deposition testimony is clear that he believed
he had properly assembled the scaffolding and it still collapsed, id. at 7;
(4) World Factory’s proposed amendment is futile because it has
asserted insufficient facts in support and because Todd Lindsay’s use of
the scaffolding was foreseeable, facts that preclude a misuse defense,
id. at 8-11; (5) as noted above, World Factory easily could have added
the misuse defense in its Answer to the First Amended Complaint, id.
at 12; and (6) they will suffer unfair prejudice if the amendment is
allowed because its late filing forecloses them from exploring through
discovery any of the “variety of factual and legal issues[ ]” that the
misuse defense raises, id. at 12-13.
In reply, World Factory first argues that the Lindsays’ response to
its motion to amend highlights the principal basis for its motion. World
Factory’s Reply Br. (ECF 28) at 1-2. World Factory argues that “it
cannot ascertain what [the Lindsays’] argument will be at trial: that
Todd Lindsay properly assembled the scaffolding, as he testified in his
deposition, or that the scaffolding was not properly assembled – even in

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the face of clear warnings regarding the dangers of improper assembly
– thus causing the collapse. World Factory seeks to add the defense of
misuse or misassembly in the event [the Lindsays] intend to proceed
with their argument that the scaffolding was misassembled.” Id. at 2.
Second, World Factory again argues that its motion is timely, not
futile, and will not cause the Lindsays prejudice. Id. Specifically,
World Factory argues that it has not so unduly delayed amending its
Answer that it should be barred from asserting the misuse defense. Id.
at 3.
World Factory again notes that the Court, at the preliminary
pretrial conference, admonished it to ensure that “sufficient facts
needed to be developed in discovery to support this defense before it
could be asserted.” Id. And, it argues, “[t]he Court further advised the
parties that the defense could be added at a later time if, in fact, such
facts developed.” Id.
Although acknowledging that the Lindsays asserted in their June
2014 discovery responses that a person could mistakenly believe that
the scaffolding was properly assembled when it was not (and
reiterating this statement in their July 28, 2014 First Amended

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Complaint), World Factory argues that Todd Lindsay was not deposed
until September 2014. To that point, World Factory argues, it may
have been aware of the misuse defense legal theory, but no facts had
yet been developed to support it, so World Factory could not have
properly asserted the defense at that time. Id. at 4-6. And, it notes,
the mediation of this matter was not held until December 2, 2014, at
which time World Factory learned that the Lindsays intend to argue at
trial that the scaffolding was not properly assembled, despite Todd
Lindsay’s deposition testimony to the contrary. Id. at 6. After
researching these issues in preparation for briefing, World Factory
argues, it filed its motion to amend on February 13, 2015. Thus, World
Factory argues, it was diligent and did not engage in undue delay in
bringing its motion. Id.
Third, World Factory argues that its proposed amendment is not
futile. Id. It argues that the Lindsays assert a failure-to-warn claim
and the jury will have to decide whether the scaffolding’s warnings
were adequate and whether they would have prevented the collapse if
Todd Lindsay had followed them. World Factory argues that it should
be permitted to introduce evidence that Todd Lindsay misassembled

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the scaffolding despite warnings of the dangers of misassembly and the
presence of instructions about proper assembly. Thus, World Factory
argues, it should be able to argue that misassembly in this case was not
foreseeable because instructions were given, warnings were legally
adequate, and Todd Lindsay was an experienced scaffold user. Id. at 713.
Fourth, World Factory argues that the Montana Supreme Court
has never expressly held that misassembly of a product by the user in
the presence of warnings and instructions constitutes a misuse of the
product. Id. at 13. And, World Factory argues, it has never made any
admission that improper assembly is foreseeable in light of the
presence of assembly instructions, labels, and warnings. Thus, it
argues, it should be allowed to argue facts that negate the causation
element of the Lindsays’ products liability claim and any inferences
that can be drawn from those facts. Id. at 13-14.
Fifth, World Factory argues that its proposed amendment adding
the misuse or misassembly defense is sufficient to meet the applicable
pleading standard. World Factory argues that its proposed amendment
comports with controlling Ninth Circuit authority because it gives the

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Lindsays fair notice of the affirmative defense. Id. at 15.
Sixth, World Factory argues that the Lindsays would not suffer
prejudice if it is allowed to amend its Answer. It argues that it has
been diligent in seeking to add the defense and any delay in the filing of
its motion to do so is justified for reasons already stated. And, World
Factory argues, all deadlines that have already passed need not be
further extended, and the parties can still move forward with the
mediation scheduled for April 6, 2015. Id. at 16. The Lindsays are not
prejudiced, World Factory argues, because its proposed affirmative
defense is made in response to arguments that the Lindsays have
injected into this case. Id.
III. DISCUSSION
A.

Legal Standards

Where, as here, the deadline for amending pleadings has passed,
World Factory must first show “good cause” for not having amended its
Answer before the time specified in the scheduling order expired. This
“good cause” standard is articulated both in the Scheduling Order (ECF
13 at ¶ 1) and in Rule 16(b)(4)1 (“A schedule may be modified only for
1

References to rules are to the Federal Rules of Civil Procedure
unless otherwise noted.
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good cause and with the judge’s consent”); see also Coleman v. Quaker
Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). In Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), the Ninth Circuit
explained that “[u]nlike Rule 15(a)’s liberal amendment policy which
focuses on the bad faith of the party seeking to interpose an
amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good
cause’ standard primarily considers the diligence of the party seeking
the amendment.” Good cause to excuse noncompliance with the
scheduling order exists if the pretrial schedule “cannot reasonably be
met despite the diligence of the party seeking the extension.” Id.
(quoting Fed. R. Civ. P. 16 Advisory Committee’s Notes (1983
Amendment)).
Prejudice to the opposing party may provide an additional reason
to deny a motion to amend, but “the focus of the inquiry is upon the
moving party’s reasons for seeking modification.” Johnson, 975 F.2d at
609. “If that party was not diligent, the inquiry should end.” Johnson,
975 F.2d at 609; see also In re Western States Wholesale Natural Gas
Antitrust Litigation, 715 F.3d 716, 737 (9th Cir. 2013) (upholding denial
of motion to amend where “the party seeking to modify the scheduling

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order has been aware of the facts and theories supporting amendment
since the inception of the action”).
In considering diligence, courts consider whether the moving
party is able to show:
(1) that [it] was diligent in assisting the Court in creating a
workable Rule 16 order ...; (2) that [its] noncompliance with
a Rule 16 deadline occurred or will occur, notwithstanding
[its] diligent efforts to comply, because of the development of
matters which could not have been reasonably foreseen or
anticipated at the time of the Rule 16 scheduling conference
...; and (3) that [it] was diligent in seeking amendment of the
Rule 16 order, once it became apparent it could not comply
with the order ....
Richland Partners, LLC v. Cowry Enterprises, Ltd., 2014 WL 4954475,
*3 (D. Mont., Sept. 29, 2014) (quoting Jackson v. Laureate, Inc., 186
F.R.D. 605, 608 (E.D. Cal. 1999)). The party seeking to continue or
extend the deadlines bears the burden of proving good cause. Johnson,
975 F.2d at 608-09; see also Zivkovic v. S.Cal. Edison Co., 302 F.3d
1080, 1087 (9th Cir. 2002).
If good cause exists for seeking amendment after the scheduling
order’s deadline, the Court then turns to Rule 15(a) to determine
whether amendment should be allowed. “Although Federal Rule of
Civil Procedure 15(a) provides that leave to amend ‘shall be freely given

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when justice so requires,’ it ‘is not to be granted automatically.’” In re
Western States Wholesale Natural Gas Antitrust Litig., 715 F.3d at 738
(quoting Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.
1990)). Under Rule 15(a), the Ninth Circuit directs that courts consider
the following five factors to assess whether to grant leave to amend:
“(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4)
futility of amendment; and (5) whether plaintiff has previously
amended his complaint.” Id. “These factors are not of equal weight;
prejudice to the opposing party has long been held to be the most
crucial factor in determining whether to grant leave to amend.”
Nationwide Agribusiness Ins. Co. v. Garay, 2015 WL 756617, *4 (E.D.
Cal., Feb. 23, 2015) (citing Eminence Capital, LLC v. Aspeon, Inc., 316
F.3d 1048, 1052 (9th Cir. 2003) (“As this circuit and others have held, it
is the consideration of prejudice to the opposing party that carries the
greatest weight”); Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th
Cir. 1990); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973)).
B.

Rule 16(b)(4)’s “Good Cause” Requirement

Because World Factory’s motion comes more than six months
after the deadline to amend pleadings, World Factory must

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demonstrate good cause under Rule 16(b)(4) to modify the Scheduling
Order to allow it to amend its Answer. Although this is a close
question, the Court concludes that World Factory has made the
requisite showing.
As an initial matter, applying the factors discussed above in
Richland Partners, the Court concludes that World Factory was
diligent in assisting the Court in creating a workable schedule in this
case. First, as noted above, after World Factory filed its Answer, the
Court promptly scheduled a preliminary pretrial conference. ECF 7.
The parties filed their requisite Joint Discovery Plan (ECF 8),
statement of stipulated facts (ECF 9), and preliminary pretrial
statements (ECF 10 and 11). A short time later, the Court and counsel
participated in the preliminary pretrial conference (ECF 12) and the
Court issued the Scheduling Order (ECF 13). Neither party delayed
this process.
Second, the Court concludes that World Factory’s failure to
comply with the deadline for amending pleadings occurred because
matters developed that it arguably could not have reasonably foreseen
or anticipated at the time of the preliminary pretrial conference. As

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noted, at the time of Todd Lindsay’s September 10, 2014 deposition, at
which he testified that he properly assembled the scaffolding (ECF 21-2
at 2-5), World Factory was under the impression that the Lindsays
intended to persist in their position that misuse or misassembly of the
scaffolding was not at issue. But after receiving the Lindsays’ liability
expert’s report of October 10, 2014 (ECF 21-3), and engaging in a
mediation with the Lindsays on December 2, 2014, World Factory
determined that the Lindsays may argue at trial that Todd Lindsay did
not properly assemble the scaffolding, even though he testified at his
deposition that he did. These seemingly inconsistent positions by the
Lindsays prompted World Factory to reevaluate its position and to
move for leave to amend its Answer to reassert the misuse affirmative
defense.
Third, while it arguably may have been prudent for World Factory
to more promptly seek leave to amend, the Court cannot conclude, for
two reasons, that it lacked diligence in filing its motion. First, at this
point in the proceedings, it is not entirely clear whether the Lindsays
will argue at trial that Todd Lindsay properly assembled the
scaffolding or whether they will maintain that the scaffolding was not

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properly assembled. Thus, to ensure a fair trial for all parties, World
Factory must be permitted to assert the misuse or misassembly
defense.
Second, before a party may assert any claim or defense, it must
possess a factual basis to do so. Richmond v. Mission Bank, 2014 WL
6685989, *6 (E.D. Cal., Nov. 26, 2014). On the current record, it may
not have been apparent to World Factory earlier, until it pieced
together information in the Lindsays’ liability expert’s report and
statements they apparently made during mediation, that the Lindsays
may take the position at trial that possible misuse or misassembly of
the scaffolding resulted in its collapse. For these reasons, the Court
cannot conclude that World Factory has failed to exercise diligence in
seeking to reassert an affirmative defense that may or may not be
necessary at trial.
The Court also concludes that any prejudice to the Lindsays that
may result from allowing the requested Scheduling Order modification
can easily be overcome. Upon a proper motion, the Court may allow
the parties to conduct whatever additional discovery, tailored to the
reasserted defense of misuse or misassembly, they may need to

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conduct. Also, the Court will entertain any proper motion for leave to
allow additional motions to be filed, again tailored to the misuse or
misassembly defense.
C.

Rule 15(a) – Application of Factors

Because the Court concludes that World Factory exercised
reasonable diligence and has demonstrated good cause under Rule
16(b)(4), the Court next must decide whether amendment of World
Factory’s Answer is proper under Rule 15.
1.

Prior amendments

Under Ninth Circuit authority, the Court’s discretion to deny an
amendment is “particularly broad” if a party has previously amended
its pleading. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.
1990). Here, World Factory previously amended its Answer. See ECF
17. But it filed that pleading in response to the Lindsays’ First
Amended Complaint. Thus, this factor does not weigh against allowing
it to amend now.
2.

Undue delay

Undue delay, as a sole basis, is insufficient for precluding leave to
amend. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.

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1987) (citing United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981);
Hurn v. Retirement Fund Trust of Plumbing, 648 F.2d 1252, 1254 (9th
Cir. 1981)). But combined with other factors, delay may be enough to
deny amendment. Hurn, 648 F.2d 1254.
In considering the undue delay factor, courts may consider
“whether the moving party knew or should have known the facts and
theories raised by the amendment in the original pleading.” Jackson v.
Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). Also, courts are to
consider whether “permitting an amendment would . . . produce an
undue delay in the litigation.” Id.
Here, the Court already has addressed whether World Factory
knew or should have known about the misuse or misassembly defense
earlier. As set forth above, World Factory originally asserted the
defense in its initial Answer. It dropped the defense when it answered
the Lindsays’ First Amended Complaint, but seeks to reassert it now
based on the Lindsays’ possible assertion at trial that Todd Lindsay did
not properly assemble the scaffolding.
The Court concludes that allowing the amendment will not cause
undue delay in the litigation. While strict adherence to a scheduling

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order is preferred, reaching the merits of a case is of paramount
importance. No delay caused by this amendment is anticipated and, if
any delay is necessary, it will be minimal to allow additional limited
discovery if needed and if the parties seek leave to file motions related
thereto. The original Scheduling Order has been amended only once,
on a stipulated motion to provide a short extension of expert disclosure
deadlines. No trial date is set in this matter, so any delay will not
materially disrupt further scheduling. For these reasons, the Court
concludes that the undue delay factor does not weigh against
amendment.
3.

Bad faith

The Lindsays have neither argued nor shown that World Factory
acted in bad faith in seeking leave to amend. Thus, this factor does not
weigh against amendment.
4.

Futility of amendment

An amendment’s futility alone can support denial of a motion for
leave to amend. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995); see
also Miller v. Rykoff–Sexton, 845 F.2d 209, 214 (9th Cir. 1988) (“A
motion for leave to amend may be denied if it appears to be futile or

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legally insufficient”). “Futility is analyzed under the same standard of
legal sufficiency as a motion to dismiss under [Rule] 12(b)(6). In other
words, leave to amend should not be denied based on futility unless the
proposed amended complaint would fail to state a claim upon which
relief can be granted.” Richmond, 2014 WL 6685989 at *5 (citations
and internal quotations omitted). “Likewise, a motion for leave to
amend is futile if it is undisputed that the amendment cannot impose
or avoid liability.” Id. (citing Gabrielson v. Montgomery Ward & Co.,
785 F.2d 762, 766 (9th Cir. 1986)).
As noted, the Lindsays argue that World Factory’s proposed
amendment is futile. They argue that World Factory has asserted
insufficient facts in support of its amendment and Todd Lindsay’s use
of the scaffolding was foreseeable, which precludes a misuse defense.
ECF 22 at 8-11. The Court disagrees.
First, “[j]ust as a plaintiff’s complaint must allege enough
supporting facts to nudge a legal claim across the line separating
plausibility from mere possibility, [Bell Atlantic v.] Twombly, 550 U.S.
[544], 570 [(2007)], a defendant’s pleading of affirmative defenses must
put a plaintiff on notice of the underlying factual bases of the defense[.]

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Mere labels and conclusions do not suffice.” Dion v. Fulton Friedman &
Gullace, 2012 WL 160221, *2 (N.D. Cal., Jan. 17, 2012) (citations
omitted). Here, World Factory’s proposed amended Answer places the
Lindsays sufficiently on notice of the underlying factual bases for its
Sixth Affirmative Defense of Misuse or Misassembly to make the
defense facially plausible. See ECF 21-1 at 11. The proposed
amendment, therefore, is not futile.
Second, as is evident from the foregoing discussion, whether Todd
Lindsay misused or misassembled the scaffolding, and even whether
the Lindsays intend to argue that he did, is unclear at this point. The
proposed amendment is not futile on this basis, either.
For the foregoing reasons, the Court concludes that this factor
does not weigh against amendment.
5.

Prejudice to the Lindsays

As noted, prejudice to the Lindsays is the most important factor
in determining whether to allow World Factory to amend its Answer.
Eminence Capital, 316 F.3d at 1052; Nationwide Agribusiness, 2015
WL 756617 at *4. The party opposing an amendment – here, the
Lindsays – bears the burden of showing prejudice. DCD Programs, 833

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F.2d at 187. To support denial of a motion for leave to amend,
prejudice must be substantial. Richmond, 2014 WL 6685989, *6 (citing
Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.
1990)).
As noted, the Lindsays argue that they will suffer unfair prejudice
if the amendment is allowed because its late filing forecloses them from
exploring through discovery any of the “variety of factual and legal
issues[ ]” that the misuse defense raises. ECF 22 at 12-13. The Court
is not persuaded.
As the Court noted above in discussing good cause under Rule
16(b)(4), any prejudice to the Lindsays that may result from allowing
World Factory to amend its Answer can easily be overcome by allowing,
if necessary, additional discovery tailored to the reasserted defense of
misuse or misassembly and any motions related to it. As already
discussed, neither a trial date nor any other proceeding beyond an
upcoming mediation has been scheduled. Although some dispositive
motions were recently filed, they are not yet fully briefed and thus not
ripe for consideration. Accordingly, little or no prejudice will result
from any delay that may be attributable to allowing World Factory to

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amend its Answer. Thus, this factor does not weigh against
amendment.
IV.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that World Factory’s

motion to amend its Answer (ECF 20) is GRANTED. World Factory
must promptly file its Amended Answer.
DATED this 18th day of March, 2015.

/s/ Carolyn S. Ostby
United States Magistrate Judge

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