Snyder v. Fleetwood RV, Inc. et al

Filing 105

ORDER denying 96 Plaintiff's Motion for Leave to File an Amended Complaint; denying 97 Plaintiff's Motion for Leave to Disclose an Expert Witness. Signed by Magistrate Judge Terence P. Kemp on 5/13/16. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lora F. Snyder,

:

Plaintiff,

:

v.

:
:

Fleetwood RV, Inc., et al.,
Defendants.

Case No. 2:13-cv-1019
Magistrate Judge Kemp

:

OPINION AND ORDER
This case was brought by plaintiff Lora Snyder, who claims
that a motor home for which she paid more than $800,000 was
defective at the time of purchase and could not be repaired.
This matter is before the Court on Ms. Snyder’s motions for leave
to amend the complaint (Doc. 96) and to disclose expert witness
and extend discovery (Doc. 97).

Ms. Snyder did not file a reply

to Defendants’ joint response in opposition to her motion for
leave to amend, and the time for doing so has expired.
motions are now ripe for consideration.

Thus, the

For the reasons set

forth below, Ms. Snyder’s motion for leave to amend the complaint
and to disclose expert witness and extend discovery will be
denied.
I. Motion for Leave to Amend the Complaint
A.

The Parties’ Positions

Ms. Snyder filed her complaint on September 12, 2013, in
Jefferson County, Ohio, and the case was subsequently removed to
this Court on the basis of diversity jurisdiction.

A Rule 26(f)

conference was held in December of 2013, where the parties agreed
to amend the complaint by stipulation or by motion no later than
February 10, 2014.

(Doc. 9).

The original complaint alleged

three counts: (1) breach of contract; (2) Ohio Motor Vehicles
With Warranty Conformities Act (Ohio’s Lemon Law); and (3)

revocation in whole.

The current motion to amend was filed on

March 4, 2016 pursuant to Fed. R. Civ. P. 15(a)(2) and 15 (c) by
Ms. Snyder’s third counsel of record, and seeks the following
amendments:
1.

Make the following change to ¶ 17:
“After a reasonable number of attempts
to cure the defects and nonconformities
in Snyder’s 2012 Replacement Motor Home,
Fleetwood and Spartan, their agents
and/or affiliates, have [jointly and
severally] been unable to and/or have
failed to repair the defects and
nonconformities and unwilling to replace
the 2012 Replacement Motor Home.”

2.

Add a new count for violation of the
Magnuson Moss Warranty Act.

3.

Add a new count for violation of the
Ohio Consumer Sales Practices Act and/or
the Indiana Deceptive Consumer Sales
Act.

In support of her motion, Ms. Snyder points out that no new
parties are being added, and that the proposed new counts arise
out of the factual allegations already before the Court in the
original complaint.

She argues that the elements of a Magnuson

Moss Warranty Act claim are the same as the Breach of Warranty
Count included in the original complaint, so no additional
discovery is required.

She points out that attorneys’ fees are

already requested in the complaint so defendants will not be
prejudiced by that provision of the Magnuson Moss Warranty Act.
Ms. Snyder also notes that she wrote a letter to the defendants
in August of 2013, which put the defendants on notice of her
Magnuson Moss Warranty Act claim, but through oversight of her
first counsel the claim was not included in the original
complaint.

She asserts that no substantial changes are being

made to the original complaint, justice requires these changes,

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and the defendants would not be subject to undue prejudice if the
amendment is permitted.
Defendants Fleetwood RV (now known as REV Recreation Group,
Inc.) and Spartan Motor Chassis filed a joint response in
opposition to the motion to amend, arguing first that Ms.
Snyder’s motion fails procedurally because it relies only on Fed.
R. Civ. P. 15.

They point out that Fed. R. Civ. P. 16(b)(4)

provides that a “schedule may be modified only for good cause and
with the judge’s consent.”

This rule applies when a request is

made after the deadline for amending the pleadings, so the party
seeking to amend the pleadings past the deadline must satisfy
both Fed. R. Civ. P. 15 and 16(b)(4).

Defendants assert that Ms.

Snyder cannot show good cause to file an amended complaint more
than two years after the deadline of February 11, 2014, and that
permitting the amended complaint to be filed would cause them
undue prejudice.

Defendants argue that the proposed amendments

are substantive and would trigger additional discovery.

They

also contend that by adding “jointly and severally” to ¶ 17 of
the complaint, Ms. Snyder seeks to impose legal liability upon
one defendant for the alleged actions or inactions of the other,
and if that is permitted, they will have missed the opportunity
to file any relevant cross-claims or to depose relevant witnesses
on issues of indemnification.
Defendants further argue that the addition of a MagnusonMoss Warranty Act claim would prejudice them because the elements
of that claim are different than the current breach of warranty
claim.

The distinctions include the Magnuson-Moss Act’s being

limited to written warranties and providing for additional
remedies unavailable under the Uniform Commercial Code.

See

Hatfield v. Oak Hill Banks, 115 F.Supp.2d 893, 897 (S.D. Ohio
2000).

They state that while Ms. Snyder’s complaint seeks

attorney fees, Indiana law does not provide them for a warranty
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claim brought under the UCC.

See Indiana Glass Co. V. Indiana

Mich. Power Co., 692 N.E.2d 886 (Ind. Ct. App. 1998).

This Court

previously held that Indiana law will be applied to the facts of
this case.

(Doc. 91, at 27).

This addition of the new claim

would potentially subject the defendants to liability for
attorneys’ fees under the Magnuson Moss Warranty Act.
Finally, defendants argue that any claim under the Unfair
and Deceptive Acts and Practices Laws (Indiana Section 24-5-0.55) is barred by the two year statute of limitations.

Defendants

have already deposed Ms. Snyder, and they would likely have
modified their line of questioning during the deposition to
consider a consumer sales claim.
B.
With

respect

to

the

Discussion
motion

to

amend,

such

motions

are

evaluated under the standards in Fed. R. Civ. P. 15(a), which
states that leave to amend shall be given freely when justice so
requires, but that rule cannot be read in isolation.

Rather, as

the Court of pointed out in Leary v. Daeschner, 349 F.3d 888, 906
(6th Cir. 2003), Rules 15(a) and 16(b) must be read together where
any date for taking action which is established in a pretrial order
has expired.

Consequently, the Court is required to examine the

standard factors governing amendments of the complaints under Rule
15(a) only if it is satisfied that any prior date for the filing of
a motion for leave to amend either has been met or is properly
extended under the good cause provisions of Rule 16(b).

Id.

A court choosing to modify the pleadings schedule upon a
showing of good cause may do so only if the schedule could not have
reasonably be met despite the diligence of the party seeking the
extension.

Fed. R. Civ. P. 16(b); see also Inge v. Rock Fin.

Corp., 281 F.3d 613, 625
considered

whether

the

amendment is permitted.

(6th Cir. 2002).

defendant

will

be

It must also be
prejudiced

if

the

Duggans v. Steak ‘N Shake, Inc., 195 F.3d
4

828, 834 (6th Cir. 1999).

The principle of providing plaintiffs

the opportunity to be heard on all plausible claims where justice
so requires must be weighed against the plaintiffs’ diligence and
whether the defendant will be unfairly prejudiced. In Duggans, the
Sixth Circuit found that the district court did not abuse its
discretion when it denied plaintiff’s motion for leave to amend
based on plaintiff’s delay, where the time for discovery and
dispositive motions had passed and a summary judgment motion had
been filed.

The court noted the prejudice defendant would suffer

if the amendment was permitted because discovery would need to be
re-opened and new defenses considered.

Where the plaintiff has

failed to show good cause for the delay in amending the complaint,
“[t]he longer the delay, the less prejudice the opposing party will
be required to show.”

Debuc v. Green Oak Tp., 312 F.3d 736, 752

(6th Cir. 2002) (citation omitted).

Courts must also take into

consideration whether a plaintiff was “obviously aware of the basis
of the [new] claim for many months” but nonetheless failed to
pursue the claim until much later.

Id.

Courts may also take into

consideration whether proposed new amendments are based on newly
discovered facts. Ross v. Am. Red Cross, 567 F.Appx. 296, 306 (6th
Cir. 2014).
In the present case the complaint was filed on September 12,
2013 and, following removal to this Court, the deadline for
amending the complaint was established as February 10, 2014. (Doc.
9).

Ms.

Snyder

does

not

claim

discovered facts since that date.

to

have

acquired

any

newly

She also points out that an

August 2013 pre-suit demand letter put the defendants on notice of
the potential for a claim under The Magnuson Moss Warranty Act, but
that claim was not included on the complaint due to first counsel’s
“oversight.”

(Doc. 96, at 2).

The fact that Ms. Snyder (or her

counsel) knew of the feasibility of the Magnuson Moss Warranty Act
claim prior to the filing of the complaint undermines her argument.
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More than two-and-a-half years have passed since the filing of the
complaint, which is ample time to have rectified this oversight.
Similarly, the proposed addition of a new Count 5 for violation of
the Ohio Consumer Sales Practices Act and/or the Indiana Deceptive
Consumer Sales Act is not based on any new facts that could not
have been included in the original complaint, and certainly well
before now.

Finally, Ms. Snyder seeks to revise paragraph 17 of

the complaint so that it would read:
“After a reasonable number of attempts to cure
the defects and nonconformities in Snyder’s
2012 Replacement Motor Home, Fleetwood and
Spartan, their agents and/or affiliates, have
jointly and severally been unable to and/or
have failed to repair the defects and
nonconformities and unwilling to replace the
2012 Replacement Motor Home.” (Emphasis
added).
As defendants correctly point out, this new language seeks to
impose legal liability upon one defendant for alleged actions or
inactions of the other defendant.

If the amendment is allowed at

this stage, it could give rise to cross-claims and the need to
conduct additional depositions and discovery on those claims.
Ms. Snyder has not asserted a convincing argument that she has
shown sufficient diligence and good cause to amend the complaint at
this juncture.

Moreover, defendants are likely to suffer unfair

prejudice if the Court were to allow two new claims and an
allegation of joint and several liability. The motion for leave to
amend the complaint will therefore be denied.
II.

Motion for Leave to Disclose Expert
Witness and Extend Discovery

Ms. Snyder’s motion seeks to disclose an expert witness in
this matter, Thomas Bailey, for use either in her case-in-chief or
rebuttal, and to extend discovery to depose defendants’ expert
witnesses. She also seeks to conduct discovery about modifications
made by defendants to the motor home at issue in this case during
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the January 2016 inspection process, during which parts were
removed

from

the

motor

home

and

replaced.

possession of some of the removed parts.

Defendants

took

Ms. Snyder requests the

right to be present with her expert witness during the inspection
of the parts. She argues that the joint inspection with defendants
would best enable the parties to efficiently and cost effectively
focus on the defect issues at the core of this dispute, and this
would not prejudice the defendants.

She also asserts that her

expert witness should be present when defendants’ expert witnesses
drive the motor home, but this is no longer an issue because they
do not intend to drive the vehicle. (Doc. 100).
Defendants oppose Ms. Snyder’s disclosure of an expert witness
at this late stage in the case, citing this Court’s May 14, 2014
observation that Ms. Snyder “has had ample opportunity to have her
own experts inspect and test the motor home but has not done so.”
(Doc. 63 at 3-4).

Moreover, this Court denied Ms. Snyder’s motion

for a leave to disclose expert witnesses in an Order dated January
28, 2015, stating:
“New counsel entered an appearance in this
case on June 15, 2015 and did not file a
motion for leave until November 30, 2015, over
five months later.
Whether to disclose an
expert witness in support of her claims and
whether to seek an extension of time in order
to do so were strategic decisions made by Ms.
Snyder’s counsel; there is nothing in the
record to suggest that counsel wished to
disclose an expert but was somehow prevented
from doing so.
Accordingly, Ms. Snyder’s
motion is untimely, and she does not offer
good cause for delay.”
(Doc. 91 at 19).

Nothing has happened in the case to suggest that

a different conclusion should be reached now. Ms. Snyder’s failure
to name experts in a timely manner appears to be the result of
decisions

made

by

her

attorneys.

7

Changing

counsel

is

an

insufficient basis for granting leave to disclose an expert witness
where

doing

prejudice.

so

would

cause

the

defendants

to

suffer

undue

If the Court were to allow a new expert witness to

become involved at this stage of the case, defendants would need to
conduct additional discovery and be subjected to further delay to
resolution of this matter, which is already three years old.
For these reasons, Ms. Snyder’s motion for leave to disclose
expert witnesses will be denied.
VI. Conclusion
Based on the foregoing, Ms. Snyder’s motion for leave to file
and amended complaint (Doc. 96) and second motion for leave to
disclose an expert witness (Doc. 97) are denied. The parties shall
contact the undersigned’s courtroom deputy to obtain a trial date.

/s/ Terence P Kemp
United States Magistrate Judge

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