Aircraft Fueling Systems, Inc. v. Southwest Airlines, Co.

Filing 149

OPINION AND ORDER by Judge Gregory K Frizzell ; denying 124 Motion for Leave to File Document(s) (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
AIRCRAFT FUELING SYSTEMS, INC.,
Plaintiff,
v.
SOUTHWEST AIRLINES CO.,
Defendant.

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Case No. 08-CV-414-GKF-FHM

OPINION AND ORDER
Before the court is the Motion for Leave to File Amended Complaint filed by plaintiff,
Aircraft Fueling Systems, Inc. (“AFS). [Dkt. #124]. AFS seeks leave to amend its complaint to
add claims against defendant Southwest Airlines Co. (“Southwest”) for tortious breach of the
implied duty of good faith and fair dealing, constructive fraud, and negligent misrepresentation;
to seek punitive damages; and to eliminate claims or allegations previously ruled on by the court.
Defendants oppose the motion.
I. Background/Procedural Status
AFS, a former Southwest contractor, filed suit in state court on June 10, 2008, asserting
claims for breach of contract, quantum meruit and indemnity against Southwest. Southwest
removed the case to federal court on July 18, 2008, and subsequently filed an answer and
counterclaim. The parties filed motions for partial summary judgment, and after extensive
briefing and multiple hearings,1 the court ruled on the motions. Those rulings substantially
narrowed the scope of issues to be tried.
The deadline for filing motions to amend was October 21, 2010; discovery cutoff was

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Hearings on the summary judgment motions were held December 4, 2009 [Dkt. #60],
May 6, 2010 [Dkt. #67] and September 14, 2010 [Dkt. #76].

April 29, 2011; and trial was set for August 15, 2011. [Dkt. #77]. On June 16 and 17, 2011,
new counsel for plaintiff entered appearances and existing counsel withdrew. [Dkt. ##111-115].
On June 20, 2011, plaintiff filed an opposed motion to extend the trial date due to scheduling
conflicts of its new attorneys. That motion was granted, and trial was set for October 17, 2011.
[Dkt. ##116, 119]. Subsequently, the court denied, in large part, a motion by plaintiff to extend
discovery. [Dkt. ##123, 138].
II. Analysis
Under Fed.R.Civ.P. 15(a)(2), “[t]he court should freely give leave [to amend pleadings]
when justice so requires.” Additionally, however, both Fed.R.Civ.P. 16(b)(4) and the scheduling
orders entered in this case provide that schedules may be modified only for “good cause.”
“The decision to grant leave to amend a complaint, after the permissive period, is within
the trial court’s discretion, Fed.R.C.iv.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). Refusal of a request to amend is appropriate “on a showing of undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of amendment.” Duncan v. Manager, Dept. of
Safety, City and County of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005).
A. Undue Delay
A court may deny leave to amend “when the party filing the motion has no adequate
explanation for the delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006).
Indeed, ‘untimeliness alone may be a sufficient basis for denial of leave to amend.’” Woolsey,
934 F.2d at 1462 (citing Las Vegas Ice and Cold Storage Co. v. Far West Bank, 893 F.2d 1182,

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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). Excusable neglect is not shown “where the moving party was aware of the
facts on which the amendment was based for some time prior to the filing of the motion to
amend.” Federal Insurance Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987).
Nor does the appearance of new counsel constitute good cause for the filing of untimely
pleadings. See Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148, 1154 (5th Cir. 1981); Scottsdale
Ins. Co., Inc. v. Okla. Transit Authority, Inc., No. 06-CV-359-CVE-SAJ, 2007 WL 2746928 at
**3-4 (N.D. Okla. 2007); Garcia v. Dillon Companies, Inc., 2008 WL 4509821 (D. Colo. 2008).
Here, by plaintiff’s own admission, “[t]he additional claims arise out of the same set of
core facts” giving rise to plaintiff’s original claims. [Dkt. #124 at 2, ¶6]. Plaintiff has provided
no adequate reason for its failure to amend before the October 21, 2010 deadline.
B. Undue Prejudice
Defendant contends the proposed amendment would cause it undue prejudice. The court
concurs. The parties–and the court–have invested extensive time and resources in discovery,
motion practice and pretrial preparation. The proposed new claims for tortious breach of the
implied duty of good faith and fair dealing, constructive fraud, and negligent

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misrepresentation–although arising from the same facts as the original claims–would require
discovery and potential motion practice on whether–as AFS now alleges–Southwest harassed
and intimidated its employees, engaged in conduct designed to damage its goodwill and
reputation, and took AFS equipment.
III. Conclusion
For the reasons set forth above, plaintiff’s Motion for Leave to File Amended Complaint
[Dkt. #124] is denied.
ENTERED this 4th day of August, 2011.

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