Blackwell et al v. LaFriniere

Filing 35

ORDER re 29 MOTION to Amend/Correct 19 Scheduling Order filed by Randyl H. Blackwell. Amended Pleadings due by 2/21/2017. Motions terminated: 29 MOTION to Amend/Correct 19 Scheduling Order filed by Randyl H. Blackwell. Signed by Judge Donald W. Molloy on 1/30/2017. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

LAWRENCE A. BLACKWELL and
RANDYL H. BLACKWELL,
individually, and on behalf of their
minor children,

CV 16–22–M–DWM

ORDER
Plaintiffs,
vs.
SUSAN ANN LaFRINIERE,
Defendant.

The plaintiffs seek to amend the Scheduling Order and file an amended
complaint two months after the deadline to do so has passed. (Doc. 29.) While the
defendant opposes the request, this is the unusual case where belated amendment is
appropriate. The plaintiffs’ motion is granted.
BACKGROUND
Plaintiffs Lawrence H. Blackwell (“Lawrence”) and Randyl H. Blackwell
(“Randee”) filed a complaint against Defendant Susan LaFriniere (“LaFriniere”)
on February 10, 2016, alleging LaFriniere, their neighbor, discriminated against
them in violation of the Civil Rights Act of 1866 (42 U.S.C. § 1982), the Fair

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Housing Act (42 U.S.C. §§ 3604, 2617), and the Montana Human Rights Act
(Mont. Code Ann. § 49-2-305). ( Doc. 1.) The Complaint details LaFriniere’s
racially-motivated harassment of Lawrence, a black man, and the Blackwells, a
mixed-race family, since September 2013, including incidents of physical assault
and the use of racial epithets. (Id. at ¶ 8.) It also notes that on February 4, 2016,
LaFriniere was convicted in state court of committing a “racially motivated assault
upon [Lawrence] and of the crime of violating a restraining order issued by a state
court against her and in favor of the Blackwells.” (Id. at ¶ 9.) The Complaint
concludes that Lafriniere’s actions have deprived the Blackwells of equal housing
rights, interfered with their exercise of fair housing rights, and caused them
personal injury and emotional harm. (Id. at ¶¶ 10-11.) It requests compensatory
and punitive damages, and that LaFriniere be enjoined from further harassment.
(Id. at ¶¶ A-E.)
Both parties attended a preliminary pretrial conference on June 29, 2016.
The resulting Scheduling Order set September 1, 2016 as the amended pleading
deadline. (Doc. 19.) Lawrence was killed in an automobile accident on July 22,
2016. (Doc. 25.) Eliana Blackwell, age 11, was injured in the same crash and
required hospitalization. (Doc. 29-2 at 4.) Randee was appointed personal
representative of Lawrence’s estate on September 23, 2016. ( Id.) On November 2,
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2016, the parties participated in an unsuccessful settlement conference. (Doc. 24.)
At the time of Lawrence’s death, Randee was living and working in Spokane
while Lawrence and the couples’ children remained in Missoula. (Doc. 29-2 at ¶
2.) She states she and her husband decided to move to Spokane because
LaFriniere’s actions made life at their Missoula residence untenable. (Id.) Before
he died, Lawrence was also caring for Randee’s elderly and infirm mother. ( Id. at
¶ 4.) He had also handled all communications with the Blackwells’ counsel in this
case. (Id.) Lawrence’s unexpected death placed all those responsibilities on
Randee. On October 6, 2016, Randee’s mother died as well. (Id.)
Randee states that “[a]s a result of [her] husband’s death . . . [she] was not
available to consult on an informed basis with [counsel] until mid-October 2016,
and [was] only been able to leave a brief voice mail message for [counsel]
sometime in August informing him of Larry’s death.” (Id. at ¶ 6.) It was not until
late October and early November that she located “documents [and] papers . . .
necessary to discuss this case.” (Id. at ¶ 7.) These included audio recordings from
a hearing concerning an order of protection against LaFriniere, records of
communications with the property management company, and records Lawrence
kept of incidents involving LaFriniere. ( Id.) Randee states she was not able to
speak at length with counsel until sometime in mid-October, and not in person until
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November 1 and 2, 2016. ( Id. at ¶ 8.)
Counsel for the Blackwells avers that he and Lawrence made plans after the
scheduling conference to meet sometime in early August 2016 to “obtain
information and documents primarily for the purpose of pursuing early settlement
efforts and determining whether the Complaint should be amended.” (Doc. 29-3 at
¶ 5.) Counsel states he tried, unsuccessfully, to contact Lawrence in late July and
early August, and did not learn of Lawrence’s death until August 22, 2016. (Id at ¶
7.) He states that as a result of Lawnrence’s death, and the ensuing confusion,
information indicating the need to amend the Complaint was not available to him
until late October and early November, when he was finally able to meet with
Randee. (Id. at ¶¶ 14, 15.)
On November 12, 2016, the Blackwells moved to amend the Scheduling
Order and for leave to file an amended complaint. The amended complaint would
add as defendants (1) ADEA Property Management Company, the manager of the
property owned by LaFriniere; (2) Licorne, LLC, the owner of the subdivision in
which the subject property sits; and (3), Todd Mowbray, the predecessor owner of
the subdivision and the owner and manager of Licorne, LLC. (Doc. 29-1 at ¶¶ 911.) The amended complaint would also add four new counts: (1) Count IV:
negligent inflection of emotional distress by LaFriniere; (2) Count V: violation of
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the Fair Housing Act by ADEA, Licorne, and Mowbray; (3) Count VI: violation of
the Montana Human Rights Act by ADEA, Licorne and Mowbray; and (4) Count
VII: negligence by ADEA and Licorne. (Id. at ¶¶ 36-52.)
ANALYSIS
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides a liberal
amendment policy, instructing that a court should freely give leave to amend
“when justice so requires.” Under Rule 15(a)(2), “leave to amend should be
granted unless amendment would cause prejudice to the opposing party, is sought
in bad faith, is futile, or creates undue delay.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citing DCD Programs, Ltd. v. Leighton,
833 F.2d 183, 185-87 (9th. Cir. 1987)). However, once a district court enters a
scheduling order pursuant to Rule 16, that rule’s standards control. Johnson, 975
F.2d at 607-08. Therefore, a party seeking to amend a pleading after the date
specified in the scheduling order must show “good cause” exists for amendment
under Rule 16(b)(4) in addition to satisfying the Rule 15(a)(2) requirements. Id. at
608.
ANALYSIS
I.

Rule 16
Because the amendment deadline set by the Scheduling Order has passed,
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the plaintiff must show “good cause” to qualify for amendment. (See Doc. 19 at
¶ 1 (setting Amendment Deadline of September 1, 2016)). “Rule 16(b)’s ‘good
cause’ standard primarily considers the diligence of the party seeking the
amendment.” Johnson, 975 F.2d at 609. “[C]arelessness is not compatible with a
finding of diligence and offers no reason for a grant of relief.” Id. “Although the
existence or degree of prejudice to the party opposing the modification might
supply additional reasons to deny a motion, the focus of the inquiry is upon the
moving party’s reasons for seeking modification.” Id. This is the unusual case in
which that standard is met.
Randee and plaintiffs’ counsel acted diligently both before and after
Lawrence’s unexpected death. Lawrence had made plans with counsel to meet
following the scheduling conference to strategize about the case and the potential
joinder of other parties. (Doc. 29-3 at ¶ 5.) His death made that meeting
impossible. Unaware of Lawrence’s passing, counsel attempted to contact the
Blackwells multiple times. (Id.at ¶ 7.) The declarations of Randee and counsel
demonstrate diligent efforts to continue with the case despite the sudden disruption
to the Blackwells’ lives, which included two deaths and the hospitalization of a
child. These events do not suggest carelessness. Good cause exists to amend the
Scheduling Order.
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II.

Rule 15
Having found good cause to amend, the next step is to evaluate the amended

pleading pursuant to Rule 15(a)(2). Under Rule 15(a)(2), leave to amend should be
granted unless amendment would prejudice the opposing party, is sought in bad
faith, would create undue delay, or would be futile. Johnson, 975 F.2d at 607.
Those factors are addressed in turn.
LaFriniere argues the addition of a count of negligent inflection of emotional
distress will unduly prejudice her during litigation. (Doc. 32 at ¶ 21.) However,
this new count is directly tied to the alleged racial discrimination at issue in the
original complaint, and will not unreasonably complicate discovery. LaFriniere
argues deposition costs will be prohibitive because she has limited funds; however,
LaFriniere is being represented pro bono in this matter. (Doc. 32 at ¶ 3.) Any
costs would therefore appear to be borne by her counsel. LaFriniere’s argument
also fails to take into account the likely necessity of depositions even if amendment
is not granted. As to cost, the Federal Rules of Civil Procedure contemplate a
number of inexpensive options for taking depositions, including audio,
audiovisual, or stenographic means. (Fed. R. Civ. P. 30(b)(3)(A).) LaFriniere will
not be unduly prejudiced by the addition of a negligent infliction of emotional
distress count against her. If anything, the presence of additional defendants and
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claims will likely have the greatest effect on the plaintiffs, and may even alleviate
some of LaFriniere’s defense costs.
LaFriniere argues amendment will create undue delay. (Id. at ¶ 21.)
Admittedly, amendment will likely slow the course of these proceedings, as the
addition of three new defendants will require the schedule set forth in the
Scheduling Order be amended to allow for discovery. However, this delay is not
sufficient to override Rule 15(a)(2)’s directive that leave to amend be freely given
“when justice so requires.”
Next, the facts do not indicate that plaintiffs have acted in bad faith or with
dilatory motive. Counsel and Lawrence planned to meet following the Scheduling
Conference. (Doc. 33 at 5.) One purpose of the meeting was to discuss potential
amendments to the pleadings. (Id.) Lawrence’s death prevented that meeting and
disrupted contact between counsel and Randee for several months. ( Id.) Bad faith
was not a factor.
Finally, futility of amendment is the most heavily weighted of the concerns
implicated under Rule 15(a)(2), and can by itself foreclose amendment. U.S. ex
rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001).
However, LaFriniere does not argue amendment would be futile. Nor is there any
indication that the additional count involving LaFriniere, nor those brought against
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the additional defendants, would be futile. Accordingly,
IT IS ORDERED THAT the plaintiffs’ motion to amend (Doc. 29) is
GRANTED. The plaintiffs have twenty (20) days from the date of this Order to
file and serve the amended complaint.
IT IS FURTHER ORDERED that all remaining dates in the Scheduling
Order (Doc. 19) are VACATED. A new Preliminary Pretrial Order will be filed
separately. The plaintiffs shall serve it upon all defendants within twenty (20) days
of this Order as well.
DATED this ____ day of January, 2017.

___________________________
Donald W. Molloy, District Judge
United States District Court

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