Cole, et al v. Asarco Incorporated, et al

Filing 445

OPINION AND ORDER by Judge Gregory K Frizzell ; denying 401 Motion to Amend (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BETTY JEAN COLE, et al.,
Plaintiffs,
v.
ASARCO INCORPORATED, et al.,
Defendants.

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Case No. 03-CV-327-GKF-TLW

OPINION AND ORDER
Before the court is the Motion for Leave to Amend their Fifth Amended Complaint (Dkt.
#401) of the plaintiffs.
In the more than seven year period that this law suit has been pending, the plaintiffs have
amended their complaint five times. (Dkt. #76, 219, 296, 325, 344). The December 3, 2010,
deadline for submission of amendments to the pleadings was fixed by the agreement of both parties
and given effect in the court’s Scheduling Order of August 27, 2009. (Dkt. #305). Plaintiffs filed
this motion to amend out of time, on December 6, 2010. (Dkt. #401).
Under Fed.R.Civ.P. 15(a)(2) after a party has once amended its pleadings, it may again
amend its pleadings “only with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.” The Supreme Court has clarified that “[i]n the
absence of any apparent or declared reason – such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc. – the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis,
371 U.S. 178, 182 (1962).

“The decision to grant leave to amend a complaint, after the permissive period, is within the
trial court’s discretion, Fed.R.C.vi.P. 15(a), and will not be disturbed absent an abuse of that
discretion.” Woolsey v. Marion Lab., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991) (citations omitted).
“While prejudice may be one ground justifying a denial of leave to amend, such a showing is not
necessary. Indeed, ‘untimeliness alone may be a sufficient basis for denial of leave to amend.’” Id.
(citing Las Vegas Ice and Cold Storage Co. v. Far West Bank, 893 F.2d 1182, 1185 (10th Cir.1990)).
Delay is generally measured from the filing of the complaint, or from the time when the facts
necessitating the amendment became known to the moving party. See Broom v. Springs Global U.S.,
Inc., 2010 WL 4362851, *2 (N.D. Okla. 2010); Hayes v. New England Millwork Distrib., Inc., 602
F.2d 15, 19-20 (1st Cir. 1979); Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006).
“Where the party seeking amendment knows or should have known of the facts upon which the
proposed amendment is based but fails to include them in the original complaint, the motion to
amend is subject to denial.” Woolsey, 934 F.2d at 1462 (citations omitted). If a party offers no
explanation for the delay, this is “another factor supporting a denial of leave to amend.” Id.
Plaintiffs attempt to excuse their late motion to amend by arguing that counsel was attending
a pretrial conference in California for another case on the deadline date of December 3, 2010.
Plaintiffs do not explain why they could not have filed their motion prior to the pretrial conference.
Plaintiffs argue that their delay was excusable because there was no action in this case for a period
of time, and that the nature of the suit fundamentally changed on April 2, 2009, when this court
denied class certification. However, these factors do not excuse or explain the twenty-month delay
in filing this amendment between April 2, 2009, and December 6, 2010. Plaintiffs do not claim that
any additional facts arose during that period to justify the amendment, and make no attempt to
explain why it was not possible for the proposed amendment to be offered during that period. The
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chief virtue of deadlines is that they provide a clear limit on the time to be spent on each aspect of
litigation, and adherence to them is necessary to keep litigation progressing forward. This court
declines to adjust the deadline, which the court ordered upon agreement of the parties, without
reason.
In addition to the lateness of this motion, the prejudice that could result from allowing
amendment weighs against permitting it. Defendants allege, and plaintiffs do not dispute, that the
current expert reports and responses to interrogatories they have received make no mention of public
nuisance claims.1 Thus, if plaintiffs were permitted to amend their claims, a new round of costly
discovery would need to be conducted, and new expert reports obtained. Moreover, the parties may
need to re-brief the motion for summary judgment, which is premised on the existing complaint,
discovery, and reports. The court finds that this prejudice to the defendants further weighs against
granting leave to amend out of time.
Plaintiffs argue that their delay is immaterial because defendants were put on notice of the
public nuisance claims through the Third Amended Complaint. The Third Amended Complaint
pleads that the defendants “endangered the comfort, repose, health, or safety of Plaintiffs, in
violation of 50 Okl.St.Ann. § 1.1 et. seq.,” and that the defendants “rendered Plaintiffs insecure in
their lives or in the use of their property, in violation of 50 Okl.St.Ann. § 1.1 et. seq.” (Dkt. #296,
p.15).2 50 O.S. § 1.2 defines a public nuisance as “one which affects at the same time an entire
community or neighborhood, or any considerable number of persons.” The plain language of the

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Both parties argue that ongoing delays in discovery are due to dilatory tactics by the other side.
The court makes no findings on that issue.

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Although plaintiffs premise their argument on the language of Count Two of the Third Amended
Complaint, the court notes that the language in that section remains identical through the Fourth
and Fifth Amended Complaints.
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complaint alleges individualized injury to the plaintiffs, their lives, and their property. There is no
reference to a public nuisance which affects a community, neighborhood, or considerable number
of persons besides the plaintiffs themselves. While the most recent complaint makes numerous
references to private nuisance, nowhere does the phrase “public nuisance” appear. Thus the
complaint pleads a basis for private, but not public nuisance.
The complaint’s citation to 50 O.S. §1.1 et. seq. is too broad to provide notice of public
nuisance claims, because that chapter of the Oklahoma Statutes includes sections relating to private
nuisance, public nuisance, and various specific nuisances such as agricultural nuisances,
slaughterhouses, and cemeteries. The court warned plaintiffs of the deficiency of their pleading, and
noted that the Third Amended Complaint’s “statutory citation appears to be erroneous, as 50 O.S.
§1.1 address agricultural activities as nuisances.” (Dkt. #320, p.9, fn.7). This defect was never cured
by the plaintiffs in subsequent amendments. The failure to cure a defect in a claim is another factor
that weighs against allowing leave to amend. Foman, 371 U.S. at 182.
Plaintiffs further argue that the defendants were put on notice of the public nuisance claims
through plaintiffs’ Motion to Sever the Claims of Plaintiffs the City of Picher, Oklahoma and the
City of Cardin, Oklahoma, which states that the lawsuit “includes claims for both public and private
nuisance.” (Dkt. #313, p.2). The defendants’ response to this motion, however, demonstrates that
they did not read the complaint to contain a public nuisance claim:
“Plaintiffs’ Third Amended Complaint does not contain a public nuisance claim
asserted on behalf of any Plaintiff. The term ‘public nuisance’ is not even mentioned
in the Third Amended Complaint (unlike ‘private nuisance,’ which is referenced
numerous times, see, e.g., ¶¶ 44-46). Nor are there any factual allegations in
Plaintiffs’ Third Amended Complaint that even arguably fall within the statutory
definition of ‘public nuisance’ in 50 Okla. Stat. Ann. § 2.”

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(Dkt. #314, p.4). The plaintiff’s motion to sever was found moot (Dkt. #321) in light of the court’s
Opinion and Order (Dkt. #320) granting in part a separate motion to dismiss of the defendants. The
court did not determine whether the plaintiff pleaded public or private nuisance, but “the court
observe[d] that the Third Amended Complaint does not allege any ‘actual obstruction of a public
right’” necessary for a public nuisance claim that has no statute of limitations. (Dkt. #320, p.9-10).
Viewing these circumstances as a whole, the court cannot say that the defendants were, or should
have been, on notice that the plaintiffs were alleging a public nuisance.
The court holds that, due to the unexcused and protracted delay in filing this amendment, the
failure of plaintiffs to cure deficiencies in their complaint, the lack of new evidence justifying an
amendment, and the danger of undue prejudice to the opposing party if amendment is allowed, the
interests of justice are best served by denying the motion to amend.
WHEREFORE, the plaintiffs’ Motion for Leave to Amend their Fifth Amended Complaint
(Dkt. #401) is denied.
IT IS SO ORDERED this 3rd day of May, 2011.

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