Giesler et al v. Hirchert et al
Filing
29
AMENDED ORDER DENYING MOTION TO AMEND COMPLAINT re 12 filed by Mary Giesler, Rodney Giesler. Amendment corrects the Notice to Parties portion of the Order. Signed by US Magistrate Judge Daneta Wollmann on 1/31/18. (Wollmann, Daneta)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
RODNEY GIESLER, MARY GIESLER,
5:16-CV-05088-JLV
Plaintiffs,
AMENDED ORDER DENYING
MOTION TO AMEND COMPLAINT
(DOC. 12)
vs.
EARL HENRY HIRCHERT and KRAFT,
LLC,
Defendants.
This is a diversity action arising out of a collision between a semi tractortrailer and a farm tractor on February 16, 2015, on South Dakota Highway 73
in Perkins County. Plaintiffs Rodney Giesler and Mary Giesler filed a Motion to
Amend the Complaint (Doc. 12) requesting leave to add a claim for punitive
damages against Defendants Earl Hirchert and Kraft LLC. United States
District Court Judge Jeffrey L. Viken, Chief Judge, referred Plaintiffs’ Motion to
this magistrate judge for determination. (Doc. 24).
FACTUAL BACKGROUND
The relevant facts as alleged in the proposed Amended Complaint are as
follows. Defendant Earl Hirchert operated a semi tractor-trailer unit for his
employer, Defendant Kraft LLC. (Doc. 12-1 at p. 2). On February 16, 2015,
Mr. Hirchert was traveling north on South Dakota Highway 73 when he saw an
oncoming gas truck in the southbound lane at a distance. After driving over a
dip in the highway, Mr. Hirchert then saw plaintiff Rodney Giesler’s farm
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tractor traveling in the northbound lane, about a quarter-mile ahead of him.
The highway was snowy and slippery; nevertheless, Mr. Hirchert waited to
apply his brakes, and realized he was approaching the farm tractor too quickly
to slow down. Mr. Hirchert decided to try to pass the farm tractor, even though
he was in a no-passing zone and he knew the gas truck was approaching in the
southbound lane. (Doc. 12-1 at p. 3). While passing the farm tractor,
Mr. Hirchert engaged his brakes, which caused the rear of the semi-trailer to
slide sideways and impact the farm tractor. The impact broke the farm
tractor’s axle housing and the tractor spun and rolled into the ditch, pinning
Mr. Giesler and causing him to suffer a variety of serious injuries. (Doc. 12-1
at p. 3–4). Following the accident, Kraft LLC was cited for violating the Federal
Motor Carrier Safety Regulations: the tractor-trailer involved in the accident
was equipped with inadequate brake linings, violated the minimum tire tread
depth requirements, and its brakes were out of adjustment on two of the three
trailer axles. (Doc. 12-1 at p. 5–6).
The proposed Amended Complaint alleges that inadequate inspection
and maintenance caused the cited deficiencies. (Doc. 12-1 at p. 5). Kraft LLC
knew that the cited deficiencies could cause unequal braking, pulling, and
difficulties controlling the semi-truck in an emergency stop. (Id.). Kraft LLC
was aware that the Federal Motor Carrier Safety Regulations require drivers
prepare and sign daily written reports on each operated vehicle, including on
the vehicle’s tires and brakes; nevertheless, Kraft LLC had its drivers report
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deficiencies on a dry-erase board, and no written record or report was ever
prepared or certified. (Doc. 12-1 at p. 6).
In support of their proposed claim for punitive damages, Plaintiffs allege
that Mr. Hirchert and Kraft LLC failed to properly inspect and report deficient
tires and brakes on the semi-truck, and failed to prepare written reports
regarding necessary repairs and maintenance, thereby acting in reckless
indifference to important safety rules regarding inspection, maintenance, and
commercial vehicle operation. (Doc. 12-1 at p. 10–12). Plaintiffs further allege
that Mr. Hirchert failed to operate the semi-truck with extreme caution in
hazardous conditions, in violation of Section 392.14 of the Federal Motor
Carrier Safety Regulations; violated state law by attempting to pass in a nopassing zone; violated state law by operating the semi-truck at a greater-thanreasonable speed in hazardous conditions; and acted in reckless indifference
for the safety of other highway users. (Id.).
DISCUSSION
Plaintiffs move to amend the Complaint to add a claim for punitive
damages. (Doc. 12). Defendants argue that Plaintiffs fail to show good cause
to amend the Complaint outside the court’s scheduling order. Even if Plaintiffs
show good cause, Defendants argue that the proposed amendment is futile.
A.
Whether Plaintiffs Show Good Cause to Amend Complaint
Federal Rule of Civil Procedure 15 requires that “leave to amend a
complaint ‘shall be freely given when justice so requires,’ but the granting of
such a motion is left to the discretion of the district court.” Kaufmann v.
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Sheehan, 707 F.2d 355, 357 (8th Cir. 1983) (quoting Fed. R. Civ. P. 15(a)).
“[A]bsent a good reason for denial—undue delay, bad faith or dilatory motive,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of amendment—leave to amend
should be granted.” Thompson–El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989).
However, Rule 15(a) does not apply when, as here, the “district court has
established a deadline for amended pleadings under FRCP 16(b).” Kozlov v.
Assoc. Wholesale Grocers, Inc., 818 F.3d 380, 395 (8th Cir. 2016) (internal
quotations omitted). The January 19, 2017, scheduling order established an
amendment deadline of March 17, 2017. (Doc. 11). Thus, “the liberal policy
favoring amendments no longer applie[d]” when Plaintiffs filed their motion to
amend on August 15, 2017. Kozlov, 818 F.3d at 395. Rather, Plaintiffs must
now make “a showing of good cause” to amend their complaint. Id.; Fed. R.
Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the
judge’s consent.”).
1.
Diligence
The primary measure of good cause for an amended complaint is the
movant’s diligence in attempting to meet the scheduling order’s requirements.
Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 610 (8th Cir. 2011)
(internal citations omitted). “Motions that would prejudice the nonmoving
party by requiring a re-opening of discovery with additional costs, a significant
postponement of the trial, and a likely major alteration in trial tactics and
strategy are particularly disfavored.” Kozlov, 818 F.3d at 395 (internal
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quotations omitted) (affirming district court’s denial of motion to amend where
movant waited three years after obtaining relevant evidence before adding
negligent hiring claim); see also Harris v. FedEx Nat. LTL, Inc., 760 F.3d 780,
786–87 (8th Cir. 2014) (affirming district court’s denial of motion to amend
where movant sought to amend complaint 17 months after deadline and
attempted to add an entirely new theory of recovery); Hartis v. Chicago Title
Ins. Co., 694 F.3d 935, 948–89 (8th Cir. 2012) (finding plaintiffs did not act
diligently by waiting to amend their complaint until two years after deadline;
plaintiffs’ delay was deliberately intended to prevent class certification denial);
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 717–718 (8th Cir. 2008)
(reversing district court and finding movant failed to show diligence in
amending complaint; movant attempted to add affirmative defense eighteen
months after deadline for amending pleadings, and eight months after
becoming aware of defense’s applicability).
In Nationwide Mut. Ins. Co. v. Korzan, 15-CV-4124-KES, 2016 WL
4148242 (D.S.D. Aug. 4, 2016), this court addressed the issue of good cause,
where defendants moved to amend their complaint four months after receiving
relevant evidence and two months after the deadline to amend. The court
found that the delay “fail[ed] to compare to situations where courts have not
found good cause.” Id. at *3 (contrasting cases where movants delayed
amendments for between one and three years). No evidence existed that
defendants deliberately delayed their motion to amend; furthermore,
defendants did not miss any other scheduling deadlines. Id. The court
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accordingly found that the defendants’ delay was relatively brief, and good
cause existed. Id.; compare Lee v. Driscoll, No. 14-CV-4146-LLP, 2016 WL
1337248, at *3–4 (D.S.D. Mar. 31, 2016) (denying plaintiffs’ motion to amend
complaint and add punitive damages because plaintiffs waited six months after
completing depositions and discovering relevant evidence before filing motion to
amend).
Here, Plaintiffs argue there is good cause to amend their complaint to
include a punitive damages claim because the relevant evidence was not
discovered until after the court’s deadline to amend the pleadings had passed.
(Doc. 23 at p. 3–4). Plaintiffs assert that they filed the motion to amend fortyseven days after discovering the evidence for the punitive damages claim. Id. at
p. 4; compare with Lee, 2016 WL 1337248, at *3–4. Like Korzan, this court
finds no evidence that Plaintiffs deliberately delayed their motion to amend or
engaged in otherwise subversive tactics. Furthermore, like in Korzan, Plaintiffs
have not missed any other scheduling deadlines, and filed their request to
amend before the discovery and motions deadlines. The delays in this case—
five months past the deadline to amend pleadings and less than two months
past the discovery of the relevant evidence—“fail to compare to situations
where courts have not found good cause.” Korzan, 2016 WL 4148242, at *3.
Thus, the court finds that Plaintiffs were diligent in filing their motion to
amend the complaint.
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2.
Undue Prejudice
The second consideration in the good cause analysis is whether undue
prejudice would result from scheduling order modifications. Sherman, 532
F.3d at 717 (holding that undue prejudice should only be explored if the
movant has been diligent). “The burden of proving prejudice lies with the party
opposing the motion.” Lillibridge v. Nautilus Ins. Co., No. 10-CV-4105-KES,
2013 WL 870439, at *6 (D.S.D. Mar. 7, 2013) (internal citations omitted).
Defendants claim that Plaintiffs’ amendment will result in prejudice because
the parties may need to redo depositions.
In Korzan, this court found that movants’ delayed request to amend their
answers did not prejudice plaintiffs, because their motion was filed before the
discovery and motions deadlines. By contrast, in Pucket v. Hot Springs Sch.
Dist. No. 23-2, 239 F.R.D. 572, 590 (D.S.D. 2006) this court denied movants’
request to raise third-party complaints three years after the pleadings deadline
passed, after “[d]iscovery is closed and the motions deadline has passed,” while
“[t]here are three pending motions for summary judgment,” and when “thirdparty defendants would want to engage in [further] discovery” would delay the
case and result in prejudice. Id.
Here, like in Korzan, Plaintiffs filed their motion to amend before the
discovery and motions deadlines. The court finds that Defendants have not
met their burden to prove prejudice. For the above reasons, Plaintiffs have
shown good cause to file their motion to amend the complaint.
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B.
Whether Plaintiffs’ Proposed Amendments Are Futile
Defendants argue that Plaintiffs’ proposed amendments are futile.
Denial of a motion for leave to amend on the basis of futility “means the district
court has reached the legal conclusion that the amended complaint could not
withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.” Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778,
782 (8th Cir. 2008).
When ruling on a motion to dismiss under Rule 12(b)(6) for failure to
state a claim, a district court generally may not consider materials outside the
pleadings, other than some public records, materials that do not contradict the
complaint, or materials that are “necessarily embraced by the pleadings.”
Noble Systems Corp. v. Alorica Cent., LLC, 543 F.3d 978, 982 (8th Cir. 2008);
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). This
court will therefore consider only the sufficiency of the allegations contained in
the proposed Amended Complaint in determining the futility issue. Wheeler v.
Hruza, No. 08-CV-4087-LLP, 2010 WL 2231959, at *2 (D.S.D. June 2, 2010)
(citations omitted).
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “[A]lthough a complaint need not include
detailed factual allegations, ‘a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a
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formulaic recitation of the elements of a cause of action will not do.’” C.N. v.
Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629–30 (8th Cir.
2010) (quoting Twombly, 550 U.S. at 555).
Plaintiffs’ proposed Amended Complaint adds a claim for punitive
damages. A claim for punitive damages is not a separate cause of action, but
rather a type of damages available to punish and deter tortfeasors. Dziadek v.
Charter Oak Fire Ins. Co., No. 11-CV-4234-RAL, 2015 WL 7760193, at *11
(D.S.D. Dec. 1, 2015). Because this is a diversity action, the substantive law of
South Dakota governs this case. Hammonds v. Hartford Fire Ins. Co., 501
F.3d 991, 996 n.6 (8th Cir. 2007). Therefore, in determining whether the
proposed Amended Complaint in this case contains a claim for punitive
damages that is plausible on its face, this court must examine South Dakota
law on punitive damages.
Under South Dakota law, punitive damages are prohibited unless
expressly authorized by statute. See SDCL § 21-1-4. Punitive damages in tort
actions are authorized by South Dakota law. See SDCL § 21-3-2. In order to
submit a request for punitive damages to the jury, the plaintiff must prove that
the defendant acted with malice, either actual or presumed. See Holmes v.
Wegman Oil Co., 492 N.W.2d 107, 112–13 (S.D. 1992); SDCL § 21-3-2.
Plaintiffs’ proposed Amended Complaint alleges the defendants acted
with presumed malice. The South Dakota Supreme Court has defined
presumed malice as “malice which the law infers from or imputes to certain
acts. Thus, while the person may not act out of hatred or ill-will, malice may
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nevertheless be imputed if the person acts willfully or wantonly to the injury of
the other.” Selle v. Tozser, 786 N.W.2d 748, 757 (S.D. 2010). “Willful and
wanton misconduct demonstrates an affirmative, reckless state of mind or
deliberate recklessness on the part of the defendant.” Berry v. Risdall, 576
N.W.2d 1, 35 (S.D. 1998) (internal quotation omitted). The defendant’s state of
mind is determined objectively. Id.
In South Dakota, many punitive damages requests stemming from motor
vehicle accidents are based on the defendant driving while intoxicated. See
Straub v. Flevares, No. 13-CV-4120-KES, 2016 WL 1452363, at *3–5 (D.S.D.
Apr. 13, 2016) (listing South Dakota cases where plaintiffs based punitive
damages claims on driver intoxication). However, the South Dakota Supreme
Court has established that “intoxication, by itself, does not establish the malice
necessary to impose punitive damages.” Berry, 576 N.W.2d at 9. Rather,
presumed malice “implies that the act complained of was conceived in the spirit
of mischief or criminal indifference to civil obligations.” Dahl v. Sittner, 474
N.W.2d 897, 900 (S.D. 1991) (quoting Hannahs v. Noah, 158 N.W.2d 678, 682
(S.D. 1968)). Thus, while an “injurious act is not sufficient to constitute
presumed malice,” malice may “be shown by demonstrating a disregard for the
rights of others.” Bertelsen v. Allstate Ins. Co., 833 N.W.2d 545, 555–56
(internal citations omitted).
With respect to establishing presumed malice in the operation of a
vehicle, the South Dakota Supreme Court has stated “[it] means something
more than negligence . . . there must be facts that would show that defendant
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intentionally did something in the operation of the motor vehicle which he
should not have done or intentionally failed to do something which he should
have done[.]” Tranby v. Brodock, 348 N.W.2d 458, 461 (S.D. 1984) (emphasis
added). In other words, “[t]he conduct must be more than mere mistake,
inadvertence, or inattention.” Gabriel v. Bauman, 847 N.W.2d 537, 543 (S.D.
2014). The defendant must have “an affirmatively reckless state of mind.”
Allen v. McLain, 58 N.W.2d 232, 234 (S.D. 1953).
Furthermore, in order to find presumed malice the defendant must have
consciously realized, under the circumstances, “that his conduct would in all
probability, as distinguished from possibility, produce the precise result which
it did produce and would bring harm to the plaintiff.” Tranby, 348 N.W.2d at
461. The South Dakota Supreme Court has often found presumed malice
based on a combination of intoxication and reckless driving, a history of drunk
driving or law violations, and/or knowledge of a defective vehicle. See, e.g.,
Flockhart v. Wyant, 467 N.W.2d 473, 474 (S.D. 1991) (finding presumed malice
where defendant had a long history of drunk driving and, on night of accident,
consumed alcohol before and during 50-mile drive); Lukens v. Zavadil, 281
N.W.2d 78, 79–81 (S.D. 1979) (finding presumed malice where 16-year-old
defendant had limited driving experience; consumed alcohol before driving;
knew vehicle’s windshield wipers were not working properly, and nevertheless
drove in the rain, late at night, on a strange road, and fell asleep at the wheel);
Brewer v. Mattern, 182 N.W.2d 327, 362–63 (S.D. 1970) (finding presumed
malice where defendant consumed alcohol, drove between 50 and 60 miles per
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hour on an icy gravel road, where the posted speed limit was 25 miles per hour
and ignored detour and warning signs, as well as passenger’s warnings that
the road curved sharply); Wentzel v. Huebner, 104 N.W.2d 695, 699 (S.D.
1960) (finding presumed malice where defendant consumed alcohol and
accelerated up to 90 miles per hour on snowy winding road with posted speed
limit of 35 miles per hour, with five passengers in car).
By contrast, the South Dakota Supreme Court has precluded the jury
from considering punitive damages in cases involving simple violations of traffic
laws, intoxication on its own, or otherwise negligent behavior where reasonable
persons under the same or similar circumstances would not consciously realize
their conduct would probably cause the resulting accident. See, e.g., Smizer v.
Drey, 873 N.W.2d 697, 704 (S.D. 2016) (no presumed malice where defendant
knew it would be difficult to stop on gravel road but ignored posted yield sign
and drove through intersection without looking); Gabriel, 847 N.W.2d at 543
(no presumed malice where defendant was speeding, plaintiff suddenly pulled
out in front of defendant, and defendant was unable to stop in time); Tranby,
348 N.W.2d at 461–62 (no presumed malice where defendant consumed seven
beers before driving down straight, level country road and, at time of accident,
was driving five to ten miles per hour over the speed limit); see also Wheeler,
2010 WL 2231959 at *3 (denying motion to amend complaint and finding
proposed punitive damages claim futile where defendant made illegal u-turn on
Interstate 90 while pulling a trailer and disregarding traffic, because plaintiff
alleged nothing more than negligence).
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Here, the Proposed Amended Complaint fails to allege that Defendants’
conduct “would in all probability, as distinguished from possibility, produce the
precise result which it did produce and would bring harm to the plaintiff.”
Tranby, 348 N.W.2d at 461. In cases such as Lukens and Brewer, the South
Dakota Supreme Court found presumed malice based on a combination of
circumstances including driver intoxication, reckless driving in dangerous
conditions, knowledge of a defect in the vehicle, and a history of law violations
while driving. See Lukens, 281 N.W.2d at 79–81; Brewer, 182 N.W.2d at 362–
63. Circumstances such as those in Lukens and Brewer show the defendant
“intentionally did something in the operation of the motor vehicle which he
should not have done or intentionally failed to do something which he should
have done[.]” Tranby, 348 N.W.2d at 461. Such facts are absent here.
Here, the Proposed Amended Complaint fails to point to any facts
amounting to more than simple negligence. Plaintiff’s proposed amendments
do not claim that Mr. Hirchert was speeding, intoxicated, or had any record of
dangerous driving. Plaintiffs allege that Defendants violated federal regulations
by tracking vehicle defects on a whiteboard, and further allege that Defendants
failed to properly repair or maintain Mr. Hirchert’s semi-truck. (Doc. 12-1 at p.
11). While such allegations may support a negligence claim, Plaintiffs fail to
allege any willful disregard of a known defect, or that Defendants intentionally
failed to do something that they should have done in the circumstances. See
Tranby, 348 N.W.2d at 461. Defendants’ alleged conduct simply does not
exceed “mere mistake, inadvertence, or inattention.” Gabriel, 847 N.W.2d at
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543. In short, the Proposed Amended Complaint alleges a negligence claim and
then inserts a “formulaic recitation” that Defendants’ conduct was “willful and
wanton.” Wheeler, 2010 WL 2231959 at *3 (citing Twombly, 550 U.S. at 555).
Plaintiffs’ amended claim does not contain sufficient factual matter which, if
accepted to be true, states “a claim to relief [for punitive damages] that is
plausive on its face.” Id. (quoting Twombly, 550 U.S. at 570). The Proposed
Amended Complaint is therefore futile.
CONCLUSION
Good cause appearing, it is hereby
ORDERED that Plaintiffs’ Motion to Amend the Complaint (Doc. 12) is
denied.
NOTICE TO PARTIES
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED this 31st day of January, 2018.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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