Hobbs v. Zhao et al

Filing 86

OPINION AND ORDER by Judge Claire V Eagan ; denying 85 Motion to Amend (Re: 28 Amended Complaint, 85 MOTION to Amend ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

BLAKE ROBERT HOBBS,

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Plaintiff,
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v.
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RUI ZHAO, d/b/a R & M Express; GRAND
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EXPRESS CORP.; and AMAZON.COM, INC., )
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Defendants.
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Case No. 13-CV-0673-CVE-FHM

OPINION AND ORDER
Now before the Court is plaintiff’s motion for leave to amend (Dkt. # 85). “In the interest
of having everybody involved in the chain of transportation in the case,” plaintiff seeks to amend
his amended complaint (Dkt. # 28) to add two new defendants--“Time Logistics” and “Am Trans
Expedite.” Dkt. # 85, at 1. Plaintiff states that defense counsel for the existing defendants do not
object to the amendment. Dkt. # 85, at 1-2. Federal Rule of Civil Procedure 15 allows a party to
amend a pleading “only with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). As plaintiff has not
attached or expressly stated that he has received the written consent of the defendants to his motion,1
amendment requires leave of this Court.

1

The Rule specifically requires “written consent,” not simply the moving party’s assurance
that there is no objection. FED. R. CIV. P. 15(a)(2); see also 6 CHARLES ALAN WRIGHT ET
AL., FEDERAL PRACTICE & PROCEDURE § 1490 (3d ed.) [hereinafter FEDERAL PRACTICE &
PROCEDURE] (“In order to be certain that the adverse party in fact has given consent and
does not object to the proposed amendment, Rule 15(a) requires that the consent be
written.”). Plaintiff is not unaware of this requirement, as it was the basis of this Court
vacating its order to strike plaintiff’s amended complaint. See Dkt. # 32, at 1.

Rule 15 states that courts “should freely give leave [to amend] when justice so requires.” Id.
The rule is to be applied liberally. See Gillespie v. U.S. Steel Corp., 379 U.S. 148, 158 (1964); see
also FEDERAL PRACTICE & PROCEDURE § 1473 (“Rule 15(a) therefore reinforces one of the basic
policies of the federal rules--that pleadings are not an end in themselves but are only a means to
assist in the presentation of a case to enable it to be decided on the merits.”). However, the Court
may deny a motion for leave to amend if it finds 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 the
allowance of the amendment, [or] futility of amendment . . . .“ Foman v. Davis, 371 U.S. 178, 182
(1962).
The Court finds three reasons to deny granting leave to amend. First, as per the Court’s first
amended scheduling order, the deadline for motions for joinder of additional parties was July 1,
2014. Dkt. # 48.2 Plaintiff filed the present motion on November 14, 2014, more than four months
after the deadline had passed. Second, plaintiff did not comply with the applicable Local Civil Rule,
which requires any motion to add parties to “be accompanied by a proposed order . . . which
specifically sets forth . . . the names of parties being added.” LcvR 7.2(l). Plaintiff’s motion states
that the parties to be added are “Time Logistics” and “Am Trans Expedite,” but plaintiff fails to
provide a proposed order precisely naming those parties. Third, the Court finds undue delay in
plaintiff’s motion. This action was removed to this Court more than one year ago, see Dkt. # 2, and
discovery began approximately eleven months ago. Dkt. ## 20, 21. Plaintiff has already amended

2

As the second and third amended scheduling orders (Dkt. ## 58, 81) were entered after July
1, 2014, no new deadline was given for motions for joinder of additional parties.
2

his complaint once to add parties “in the chain of transportation.” See Dkt. # 28.3 Plaintiff has given
the Court no reason to believe that he could not have added Time Logistics or Am Trans Expedite
at an earlier point.4 For these three reasons, the Court denies plaintiff leave to amend his complaint.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to amend (Dkt. # 85) is
hereby denied.
DATED this 17th day of November, 2014.

3

The Court can see no need to have “everybody involved in the chain of transportation” as
a defendant, especially as this case does not involve a products liability claim. Dkt. # 85, at
1. It appears that complete recovery is possible without Time Logistics and Am Trans
Expedite, and plaintiff has given the Court no reason to believe either that they are
indispensable parties or that complete relief is impossible without them.

4

This is especially true for Time Logistics, which defendant Amazon.com, Inc., repeatedly
mentioned in its August 25, 2014 motion for summary judgment. See Dkt. # 66.
3