Whitt v. Union Pacific Railroad Company
ORDER granting 47 plaintiff's Second Motion to Amend Complaint. The plaintiff shall have until 10/7/2013 to file the Second Amended Complaint. Ordered by Magistrate Judge Thomas D. Thalken. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JARED L. WHITT,
UNION PACIFIC RAILROAD
This matter is before the court on the plaintiff’s Second Motion to Amend
Complaint (Filing No. 47). The plaintiff attached the proposed amended pleading (Filing
No. 47-1) to the motion. The defendant filed a brief (Filing No. 48) in opposition to the
motion. The plaintiff filed a brief (Filing No. 51) in reply.
This case arises from injuries the plaintiff sustained while he was employed with
the defendant. See Filing No. 1 - Complaint. The plaintiff filed this action on October 5,
2012. Id. On June 26, 2013, the plaintiff filed an amended complaint. See Filing No.
In the amended complaint, the plaintiff alleges claims pursuant to the Federal
Employers’ Liability Act, 45 U.S.C. §§ 51-60 (FELA) based on suffering (1) an injury to
his left arm on June 12, 2012, while manually lifting heavy bags as part of his
employment as an anchor applicator machine operator (Claim 1) and (2) heat stroke on
June 28, 2012 (Claim 2). Id. at 2-5. The plaintiff also alleges the defendant violated the
Federal Railroad Safety Act, 49 U.S.C. § 20109(c)(1) (FRSA) when a supervisor denied,
delayed, or interfered with the plaintiff’s medical treatment (Claim 3).
Id. at 5-7.
Specifically, the plaintiff alleges he was on his way to the hospital for treatment of heat
stroke when a supervisor called and required the plaintiff be returned to the job site and
sit in front of a fan to cool down. Id. at 7-8. As part of Claim 3, the plaintiff alleges he
filed a complaint with the Occupational Safety and Health Administration (OSHA) but
OSHA dismissed the complaint based on the defendant’s faulty election of remedies
argument. Id. at 6-7.
On July 30, 2013, the defendant filed an answer denying liability for the first two
claims and a motion to dismiss Claim 3. See Filing Nos. 42 and 43. In the motion to
dismiss the defendant argues the plaintiff’s claim is barred by the plain language of the
FRSA § 20109(f). See Filing No. 43. The plaintiff filed a brief in response to the
defendant’s motion to dismiss, then after the defendant filed a reply brief, the plaintiff
filed the instant motion to amend the complaint. See Filing Nos. 45-47.
The plaintiff seeks to amend the complaint to remove a reference to the FRSA in
Claim 2 as an element of negligence in the FELA claim and alter Claim 3. See Filing
No. 47-1 - Proposed Second Amended Complaint. In Claim 3, the plaintiff seeks to
remove the language about OSHA dismissing the OSHA complaint. Id. at 6-7. In place
of the dismissal language, the plaintiff seeks to add:
The Secretary of Labor did not issue a final order within 210
days of the filing of the Complaint. The delay was not due to
the bad faith of Plaintiff.
Plaintiff will terminate the
administrative proceedings, and has filed this suit in this
Court under 49 U.S.C. § 20109(d).
Id. at 6.
The defendant argues the court should deny the motion to amend because of the
plaintiff’s dilatory conduct in the timing of filing the motion to amend and the plaintiff’s
failure to cure the defects in Claim 3. See Filing No. 48 - Response p. 1. Although the
defendant states, “[t]he substance of Plaintiff’s proposed Second Amended Complaint
remains the same as the First Amended Complaint,” the defendant argues it suffers
prejudice due to the plaintiff’s delay in filing the motion to amend because the briefing
for the defendant’s motion to dismiss Claim 3 was completed three days earlier. Id. at
3. Moreover, the defendant argues the plaintiff’s claim is futile for the reason stated in
the motion to dismiss, that the FRSA prohibits the plaintiff from seeking relief under
FRSA (Claim 3) for the same conduct alleged to violate another provision of law, such
as the FELA (Claim 2). Id. at 6-8.
Under Federal Rule of Civil Procedure 15, a court should grant leave to amend
freely “when justice so requires.” However, “[a] district court may deny leave to amend
if there are compelling reasons such as 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.
frivolous claims are futile.” Reuter v. Jax Ltd., Inc., 711 F.3d 918, 922 (8th Cir. 2013)
(internal quotation and citation omitted). The party opposing the amendment has the
burden of demonstrating the amendment would be unfairly prejudicial. Roberson v.
Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001); see Hanks v. Prachar, 457 F.3d
774, 775 (8th Cir. 2006). There is no absolute right to amend. Hartis v. Chicago Title
Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012). Whether to grant a motion for leave to
amend is within the sound discretion of the district court.
Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008). “If a party files for leave to amend outside of
the court’s scheduling order, the party must show cause to modify the schedule.” Id.
(citing Fed. R. Civ. P. 16(b)); see Hartis, 694 F.3d at 948. Additionally, the court may
consider whether the “late tendered amendments involve new theories of recovery and
impose additional discovery requirements.” Popoalii, 512 F.3d at 497.
The deadline for the plaintiff to move to amend the complaint was September 2,
2013. See Filing No. 39 - Order ¶ 4. The plaintiff’s motion, filed on August 29, 2013,
was timely under the court’s progression order. The defendant argues the plaintiff was
dilatory in filing the motion to amend because he waited until after the motion to dismiss
was fully briefed.
The defendant relies on two cases holding unexcused delay is
sufficient to justify denial of a motion to amend when the plaintiff was put on notice of
the need to change the complaint, but failed to do so. See id. (citing Moses.com
Secs., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052 (8th Cir. 2005) and
Egerdahl v. Hibbing Cmty. College, 72 F.3d 615 (8th Cir. 1995)).
Although the plaintiff’s prior notice and timing is a consideration, the cases cited
by the defendant are inapposite. In Moses.com, the court had already granted the
plaintiff leave to amend twice before denying the third motion, discovery was well
underway, and “numerous motions to dismiss ha[d] already been briefed and ruled.”
Moses.com, 406 F.3d at 1065-66. The case at bar is in the early stages of discovery
and this is the defendant’s first motion to dismiss, the defendant having filed answers in
response to the plaintiff’s original complaint and claims 1 and 2 in the amended
The court has not yet resolved the defendant’s motion to dismiss.
Egerdahl, the plaintiff received notice she failed to sue certain defendants in their
individual capacities when the defendants filed a motion to dismiss and before she filed
her motion to amend the complaint. Egerdahl, 72 F.3d at 619-20. After the court ruled
the plaintiff had sued these defendants in their official capacities only, the court denied
the plaintiff’s second motion to amend based, in part, on her lack of diligence. Id. at
620. In this case, the plaintiff admits he had notice of the defendant’s position on the
issues but disagrees with the defendant’s interpretation of the relevant statutory
provisions. See Filing No. 51 - Reply at 1-2. The plaintiff argues it is not about being
dilatory but having a difference of opinion.
Further, the plaintiff indicates the
proposed amendments will help clarify the issues for the court’s resolution of the legal
Under the circumstances, the plaintiff need not show good cause for the timing of
filing the motion to amend. The timing issue is not related to missing a deadline but to
filing the motion to amend after completion of the briefing on the motion to dismiss. The
plaintiff brought the motion to amend three days after the defendant filed its reply brief in
support of the motion to dismiss. The timing of the plaintiff’s motion, particularly under
the current discovery and trial schedule, does not provide evidence he engaged in
undue delay or was dilatory.
This is particularly true because the plaintiff is not
attempting to fix an obvious flaw or omission, so much as clarify his legal position.
The defendant has failed to sustain its burden of showing unfair prejudice caused
by the delay. The defendant did complete briefing on the motion to dismiss, but admits
the plaintiff’s proposed amended complaint is substantively similar to the previous
version. Accordingly, the same arguments will apply to the proposed pleading and
prejudice based on having to file the reply brief or re-file the motion to dismiss is
The defendants also fail to show the plaintiff’s proposed amendments are futile.
A district court’s denial of leave to amend a complaint may be justified if the amendment
would be futile. Geier v. Missouri Ethics Com’n, 715 F.3d 674, 678 (8th Cir. 2013)
(finding amendment futile where court had already considered argument in dispositive
motion). However, a motion to amend should be denied on the merits “only if it asserts
clearly frivolous claims or defenses.”
Gamma-10 Plastics, Inc. v. Am. President
Lines, 32 F.3d 1244, 1255 (8th Cir. 1994) (quotations and citations omitted). Further,
“likelihood of success on the new claim or defense is not a consideration for denying
leave to amend unless the claim is clearly frivolous” “or legally insufficient on its face.”
Becker v. Univ. of Neb., 191 F.3d 904, 908 (8th Cir. 1999); Sokolski v. Trans Union
Corp., 178 F.R.D. 393, 396 (E.D.N.Y. 1998) (citation omitted). “[W]hen the court denies
leave on the basis of futility, it means the district court has reached the legal conclusion
that the amended complaint could not withstand a motion to dismiss under [Rule
12(b)(6)].” Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505, 511 (8th Cir. 2012).
“The party opposing such amendment ha[s] the burden of establishing that leave to
amend would be . . . futile.” Sokolski, 178 F.R.D. at 396 (citations omitted). The court
is mindful of the liberal policy toward amendments and “the underlying purpose of Rule
15–to facilitate decision on the merits rather than on the pleadings or technicalities.”
Sharper Image Corp. v. Target Corp., 425 F. Supp. 2d 1056 (N.D. Cal. 2006) (internal
citation omitted); see Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 283
(2d Cir. 2000).
Although, the court will not determine the merits of the plaintiff’s claims at this
time, the defendant fails to meet its burden of showing it would be legally futile to allow
the plaintiff to file the Second Amended Complaint. After reviewing the plaintiff’s claims,
the court cannot find the claims are “clearly frivolous” as the plaintiff has alleged
sufficient facts and a good faith basis to support the amended claims. The plaintiff has
shown good cause to alter claims 2 and 3.
The plaintiff’s motion to amend is timely. Moreover, the proposed amendment is
related to the current claims and will not significantly delay the case or impact discovery
requirements. A brief but insignificant delay may be caused by having to re-file the
motion to dismiss, however the amendments may help narrow and clarify the issues for
the court’s consideration on the merits under Rule 12. Upon consideration,
IT IS ORDERED:
The plaintiff’s Second Motion to Amend Complaint (Filing No. 47) is granted. The
plaintiff shall have until October 7, 2013, to file the Second Amended Complaint.
Dated this 24th day of September, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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