Milner et al v. Biggs et al

Filing 134

OPINION AND ORDER denying re 93 Second MOTION to Amend/Correct Complaint filed by Jason A Milner, Lexi Milner, Natasha M Milner Signed by Magistrate Judge Norah McCann King on 2/10/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JASON A. MILNER, et al.,
Plaintiffs,
vs.

Civil Action 2:10-CV-904
Judge Graham
Magistrate Judge King

ROBIN BIGGS, et al.,
Defendants.

OPINION AND ORDER
Plaintiffs in this action assert a number of claims in connection
with moisture and mold in a residence purchased by them.1

The matter

is now before the Court on Plaintiffs’ Second Motion to Amend
Complaint to Join Additional Parties, Doc. No. 93 [“Second Motion to
Amend”].

For the reasons that follow, that motion is DENIED.

PROCEDURAL HISTORY
The action was originally filed in state court and was removed to
this Court on October 7, 2010.

Notice of Removal, Doc. No. 1.

Following the Rule 16 conference held on December 8, 2010, the Court
directed that all motions to amend be filed, if at all, by February 7,
2011.

Preliminary Pretrial Order, Doc. No. 18.

All discovery was to

have been completed by September 1, 2011, id., and motions for summary
judgment were to have been filed by November 28, 2011. Order, Doc. No.
89.

Ten (10) motions for summary judgment are currently pending and

the case is scheduled for trial beginning May 14, 2012.

Notice of

Final Pretrial and Trial, Doc. No. 91.

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Certain claims against certain defendants have been dismissed.
and Order, Doc. No. 48.

Opinion

On June 1, 2011 – almost four months after the date by which
motions for leave to amend were to have been filed – plaintiffs filed
a motion for leave to amend the complaint and for an extension of time
in which to file the proposed amended complaint.

Doc. No. 42.

That

request was denied on July 6, 2011 because – in the absence of even a
description of the proposed new parties and claims – “the Court is
wholly unable to evaluate the sufficiency of the proposed new claims .
. . .”

Order, Doc. No. 54, p. 1.

On October 12, 2011, plaintiffs

filed a motion to dismiss the action without prejudice to renewal,
primarily in order to later add a termite inspection company as a
party to the case in light of the discovery of termite damage.
Motion, Doc. No. 73.

That motion was denied on November 7, 2011 on

the basis “that defendants will suffer plain legal prejudice as the
result of a dismissal without prejudice.”

Order, Doc. No. 85, p. 5.

Plaintiffs filed their Second Motion to Amend on November 15, 2011.
Motion, Doc. No. 93.
By their motion, plaintiffs propose to join a number of
individuals or entities as additional defendants, to assert additional
claims against certain current defendants, to change the names of two
current defendants and to dismiss the claims asserted against John Doe
defendants and their claims of mental anguish, unjust enrichment and
civil conspiracy.

Second Motion to Amend.

STANDARD
Rule 15(a) of the Federal Rules of Civil Procedure provides that
“[t]he court should freely give leave [to amend] when justice so
requires.”

F.R. Civ. P. 15(a)(2).

“[T]he thrust of Rule 15 is to

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reinforce the principle that cases ‘should be tried on their merits
rather than the technicalities of pleadings.’” Moore v. City of
Paducah, 790 F.2d 557, 559 (6th Cir. 1986) quoting Tefft v. Seward, 689
F.2d 637, 639 (6th Cir. 1982).
The grant or denial of a request to amend a complaint is left to
the broad discretion of the trial court.

General Elec. Co. v. Sargent

& Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990).

In exercising its

discretion, the trial court may consider such factors as “undue delay,
bad faith or dilatory motive on the part of a movant, repeated
failures to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment [and] futility of the amendment.”
178, 182 (1962).

Foman v. Davis, 371 U.S.

In the Sixth Circuit, “there must be ‘at least some

significant showing of prejudice to the opponent’ if the motion [to
amend] is to be denied.”
951

Janikowski v. Bendix Corp., 823 F.2d 945,

(6th Cir. 1987) quoting Moore, 790 F.2d at 562.
Where, as here, a motion for leave to amend the complaint is

filed after the date established in the scheduling order has passed, a
plaintiff must also show good cause under Rule 16(b) for the failure
to earlier seek leave to amend.

Leary v. Daeschner, 349 F.3d 888, 909

(6th Cir. 2003).
DISCUSSION
Plaintiffs’ motion again addresses claims arising out of the
termite inspection report, which “indicat[ed] that a significant
portion of the . . . damage [to the residence] was due to termite
damage.”

Second Motion to Amend, p. 3.

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That report was received by

plaintiffs in June 2011.

Id.

Although plaintiffs filed their first

motion for leave to amend on June 1, 2011, plaintiffs did not at that
time specify any additional parties or additional claims sought to be
pursued in connection with that termite inspection.

They explain that

they acceded to the request of the termite inspector to inspect the
home and discuss settlement and “it would have been a waste of this
Court’s time and ALL of the parties for Plaintiffs to file an amended
complaint and then dismiss the termite inspector after settlement . .
. .”

Id.(emphasis in the original). It was not until November 15,

2012 – thirteen months after the case was filed in this Court, two and
one-half months after the close of discovery, after several
dispositive motions had been filed and shortly before the date by
which all remaining dispositive motions were to have been filed – that
plaintiffs filed the Second Motion to Amend and articulated for the
first time their proposed new claims and identified proposed
additional parties.

Although plaintiffs arguably could not have moved

to amend by the February 7, 2011 date for filing such motions, as
established in the Court’s scheduling order, the delay of almost six
months from the time that plaintiffs obtained the information
underlying their proposed new claims can only be characterized as
undue.
As noted supra, however, even undue delay in seeking leave to
amend will not justify the denial of leave, absent prejudice to the
opposing parties. Janikowski v. Bendix Corp., 823 F.2d at 951.
Defendants claim, and this Court finds, such prejudice.
To permit plaintiffs to assert their proposed new claims at this
late stage would be to unfairly recast the essential nature of the

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case.

See Leary, 349 F.3d at 909 n. 27 (“[B]rand-new claims . . .

more obviously create prejudice because the defendant must contend
with an entirely different substantive issue”).

Moreover, the grant

of plaintiffs’ motion would either subject defendants to the reopening of discovery and the continuance of the current trial date or
deprive them of the opportunity to meaningfully defend against the
proposed new claims.

The Court will not impose such a dilemma on

defendants.2
For their part, plaintiffs contend that the denial of their
motion will subject them to unreasonable prejudice.

Characterizing

the termite inspection agency and its employees as required parties
within the meaning of Rule 19(a), plaintiffs argue that the failure to
join them this action “will deprive Plaintiffs of their ability to
protect their interests.” Second Motion to Amend, p. 4.
The Buyers’ agents and home inspector are
claiming the damage was cause by termites. The
Seller’s agents and the termite inspector are
claiming the damage was cause by water. Both
parties are pointing fingers at the other and
Plaintiffs cannot be granted their day in Court
if this Court prevents Plaintiffs from including
these indispensable parties.
Id.

The Court first notes that prejudice to the party seeking leave

to amend is not an express consideration under the Rule 15 analysis.
In any event, however, the Court concludes that any prejudice

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Plaintiffs also propose, in the alternative, that the Court “allow
Plaintiffs to proceed with trial on their claims against [one of the
defendants], pursuant to the actual scheduling order . . . [and] allow
Plaintiffs to continue their action against the remaining Defendants as well
as to amend their complaint to add the indispensable parties.” Plaintiffs’
Reply Memorandum to Defendants Arrow Title Agency, LLC, Jonathan Holfinger,
and Chris Moore’s Opposition to Second Motion for leave to Amend Complaint,
Doc. No. 113, p.2. This proposal, rather than eliminating burden and
prejudice, merely imposes even greater burden on the Court.

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redounding to plaintiffs is of their own making.

But for plaintiffs’

undue delay in seeking leave to amend, these issues could have been
addressed prior to the close of discovery, before the filing of
current dispositive motions and months before the case was set for
trial.

To argue, as plaintiffs do, that they should not be held

accountable for their own failure to act expeditiously is simply not
persuasive.
WHEREUPON plaintiffs’ Second Motion to Amend, Doc. No. 93, is
DENIED.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
February 10, 2012

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