Harris, et al v. Velichkov, et al

Filing 140

MEMORANDUM AND ORDER - THEREFORE, IT IS ORDERED that the plaintiffs' objection, filing 113 , is overruled. Ordered by Judge John M. Gerrard. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENA HARRIS as Administrator of
the Estate of CHAUNGENE L.
WARD, deceased, and MONICA
NOLAN,

8:09-CV-349

Plaintiffs,
vs.

MEMORANDUM AND ORDER

OLEG VELICHKOV, FRESH START,
INC., NERMIN DONESKI,
MICKEY'S TRUCKING EXPRESS,
INC., MILCO DONESKI and FEDEX
NATIONAL LTL, INC.,
Defendants.

This matter is before the Court on the plaintiffs’ Objection to
Magistrate Judge’s Order (filing 113). Pursuant to NECivR 72.2 and 28
U.S.C. § 636(b)(1)(A), the Court has reviewed the record and finds that the
Magistrate Judge’s order was neither clearly erroneous nor contrary to law. A
brief procedural history of the relevant filings will be helpful in explaining
why the Court finds the plaintiffs’ objection to lack merit.
The plaintiffs’ complaint (filing 1) was filed on October 1, 2009. It
alleged claims for relief that, generally described, arose out of an automobile
accident which occurred between the plaintiffs’ vehicle and a tractor-trailer
operated by Oleg Velichkov. The defendants included Velichkov, his alleged
employers, and FedEx National LTL, Inc. (FedEx), which had contracted with
Velichkov’s employers for transport services.
A scheduling order (filing 41) was entered on March 8, 2010, which set
a deadline of April 9 for the plaintiff to amend pleadings and/or add parties.
That provision was reconfirmed on July 13 (filing 46). An amended
scheduling order (filing 62) was entered on October 25, on the joint motion of
the parties, extending certain deadlines. That order did not discuss an
extended deadline for amending pleadings, which is not surprising because
the initial deadline for amendment had long since passed. The same was true

of the second amended scheduling order (filing 82), entered on July 28, 2011,
the third amended scheduling order (filing 87), entered September 7, and the
final amended scheduling order (filing 90), entered October 11.
On November 23, 2011, the parties filed a Joint Motion to Amend
Scheduling Order (filing 100) seeking yet another amendment. In particular,
the plaintiffs now sought leave to file an amended complaint that would,
among other things, “plead a theory of independent negligence against FedEx
National.” See id. The Magistrate Judge, who had apparently meant what he
said by “final,” entered an order (filing 101) denying the motion. The
Magistrate Judge reasoned that the case had been pending for more than two
years and “that to allow Plaintiffs to file an amended complaint so as to add
the theory of independent negligence against FedEx National, and then give
Defendants additional time to conduct discovery with respect to this
amendment, would unduly delay this litigation.” See id. The parties reargued
the Magistrate Judge’s ruling in an off-the-record conference with Chief
Judge Joseph F. Bataillon, who entered a text order (filing 109) finding that
the Magistrate Judge’s ruling was sound.
Nonetheless, the plaintiffs filed a motion to amend their complaint
(filing 110) supported by a brief (filing 111). The Magistrate Judge entered
yet another order (filing 112) denying the plaintiffs’ motion. The plaintiffs
then filed the present objection (filing 113) and a brief in support (filing 114),
and FedEx has filed a brief in opposition (filing 115).
Fed. R. Civ. P. 15(a)(2) provides that the Court should freely give leave
to a party to amend its pleadings when justice so requires. But if a party files
for leave to amend outside of the Court’s scheduling order, the party must
show good cause to modify the schedule. See, Fed. R. Civ. P. 16(b)(4); Popoalii
v. Correctional Medical Services, 512 F.3d 488 (8th Cir. 2008). 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 (8th Cir. 2008). In this case, good cause has not been shown.
The plaintiffs argue that their original complaint (filing 1) stated
claims for both negligent hiring and negligent entrustment on the part of
FedEx. That much is true. But the plaintiffs’ complaint premised those
claims entirely upon allegations that FedEx was negligent in hiring, training,
and supervising the allegedly-negligent driver, Velichkov. The proposed
amended complaint (filing 110-1), however, would add an entirely new theory
of recovery. In the amended complaint, the plaintiffs allege that FedEx was
negligent in contracting with Velichkov’s employers, Fresh Start, Inc., and
Mickey’s Trucking Express, Inc., because FedEx knew or should have known
that Mickey’s Trucking Express had a poor safety record. See id. Even a
liberal construction of the plaintiffs’ original complaint would not have
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suggested this theory of liability. The plaintiffs’ characterization of their
amended complaint as a “formality” that serves to “‘clarify’ the causes of
action”, see filing 114 at 8, is without merit.
But more to the point, under Rule 16(b)(4), the question is not the effect
of the amendment, but whether the plaintiffs were diligent in attempting to
meet the requirements of the scheduling order. See Sherman, supra.
Plaintiffs’ portrayal of the proposed amendment as a long-understood
formality begs the question of why it took this long. And nothing in the
plaintiffs’ brief explains, or seeks to explain, why they only sought leave to
amend their complaint over 17 months after the deadline for doing so had
passed. They have not, for instance, contended that the factual basis for their
additional allegations only became clear after extended discovery. See,
generally, id. They have, in fact, provided no explanation for why their
motion to amend was filed so late. See, e.g., Freeman v. Busch, 349 F.3d 582
(8th Cir. 2003).
The plaintiffs’ attempt to amend their petition has been repeatedly
rejected by the Magistrate Judge and by another District Judge. It is
definitively without merit. A district court may reconsider a magistrate
judge's ruling on nondispositive pretrial matters only where it has been
shown that the ruling is clearly erroneous or contrary to law. See, §
636(b)(1)(A); Ferguson v. U.S., 484 F.3d 1068 (8th Cir. 2007). In this case, the
Magistrate Judge’s ruling was neither.
THEREFORE, IT IS ORDERED that the plaintiffs’ objection, filing
113, is overruled.
Dated this 21st day of February, 2012.
BY THE COURT:

s/ John M. Gerrard
John M. Gerrard
United States District Judge

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