Agency One Insurance, Inc. et al v. Westport Insurance Corp.

Filing 84

MEMORANDUM AND ORDER denying Plaintiff's 76 Motion to Amend. A telephonic conference with the undersigned magistrate judge will be held on August 5, 2014 at 8:30 a.m. to discuss progression toward final resolution of this case. Counsel for plaintiffs shall place the call. Ordered by Magistrate Judge Cheryl R. Zwart. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AGENCY ONE INSURANCE, INC.,
PAMELA A SIROKY,
8:13CV78
Plaintiffs,
vs.

MEMORANDUM AND ORDER

WESTPORT INSURANCE CORP.,
Defendant.
Plaintiffs Agency One Insurance, Inc. and Pamela A. Siroky, by and through their
assignee, Metropolitan Property and Casualty Insurance Company, have moved to amend
their complaint to add a claim of bad faith. Specifically, the plaintiffs claim:
The defendant either knew of or recklessly disregarded the lack or absence
of reasonable bases [sic] for refusing to defend and indemnify the
Plaintiffs, and has therefore exercised bad faith in failing and refusing to
defend and indemnify the Plaintiffs against the claims made by the Federal
Lawsuit.
(Filing No. 76).

This case was filed in the District Court of Lancaster County, Nebraska on
February 5, 2013, and was removed to this forum on March 6, 2013. (Filing No. 1).
After reviewing the parties’ Rule 26(f) Report, the deadline for moving to amend
pleadings or add parties was set for August 15, 2013, and the case was set for trial
beginning on January 13, 2014. (Filing No. 24). Although the discovery, dispositive
motion, and trial deadlines were continued at least twice at the parties’ request, (Filing
Nos. 34, 44), the deadline for moving to amend pleadings was never extended. Trial is
currently set for September 22, 2014.

The plaintiff’s motion to amend was filed on July 3, 2014, more than ten months
after the amendment deadline passed. The deadlines within a final progression order

“may be modified only for good cause and with the judge=s consent.@ Fed. R. Civ. P.
16(b)(4).

AIf a party file[s] for leave to amend outside of the court=s scheduling order,

the party must show cause to modify the schedule.@ Sherman v. Winco Fireworks, Inc.,
532 F.3d 709, 716 (8th Cir. 2008)(quoting Popoalii v. Corr. Med. Servs., 512 F.3d 488,
497 (8th Cir. 2008). The Agood cause@ requirement found in Fed. R. Civ. P. 16(b) for
amending pleadings after the expiration of the scheduling deadline Ais not optional.@
Sherman, 532 F.3d at 716.

“The primary measure of good cause is the movant's

diligence in attempting to meet the [scheduling] order's requirements . . . Our cases
reviewing Rule 16(b) rulings focus in the first instance (and usually solely) on the
diligence of the party who sought modification of the order.” Harris v. FedEx Nat. LTL,
Inc., 2014 WL 3638896, 6 (8th Cir. July 24, 2014).

On or before May 7, 2014, Metropolitan Property and Casualty Insurance
Company became the assignee of plaintiffs’ claims in this case. But it filed nothing
advising this court of that fact until June 18, 2014. By then, the summary judgment
deadlines had to be set aside because no one knew who, if anyone, was pursuing the
assignee’s claims. Now the plaintiffs request an opportunity to amend their complaint to
add a bad faith claim, with no explanation—through evidence or even argument—of why
this new claim was not raised long ago. The plaintiffs have failed to show they acted
with due diligence and as such, they have failed to make any requisite showing to justify
permitting a late amendment to the pleadings.

The court further notes that the requested amendment is not a minor change, but
rather seeks to add a new theory of recovery. Although the plaintiffs claim no additional
discovery will be necessary if the amendment is permitted, the court is not convinced.
The evidence needed to prove or defend an insurance bad faith claim differs in both
content and degree from the evidence needed on breach of contract and negligence
actions. It would be very prejudicial to the defendant—in terms of delay, duplication of

2

work and effort, and adjustment of trial strategy and expectations—to now reopen
discovery focused on an insurance bad faith claim.

Simply stated, the plaintiffs’ motion to amend is untimely under the court’s
progression order, and they have failed to show the requisite good cause for allowing an
untimely amendment to their complaint.

Accordingly,
IT IS ORDERED:
1)

Plaintiffs’ motion for leave to amend, (Filing No. 76), is denied.

2)

A telephonic conference with the undersigned magistrate judge will be held
on August 5, 2014 at 8:30 a.m. to discuss progression toward final
resolution of this case. Counsel for plaintiffs shall place the call.

July 29, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

3