Kelley v. Howard Berger Company, Inc. et al

Filing 173

MEMORANDUM AND ORDER denying 149 Motion to Amend/Correct. Signed by Magistrate Judge H Bruce Guyton on 8/11/15. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
KENNETH KELLEY,
Plaintiff,

v.
APRIA HEALTHCARE, INC., et al.,
Defendants.

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No. 3:13-CV-096-PLR-HBG

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Plaintiff’s Motion to Modify Scheduling Order to Extend
Deadline for Filing Motions to Amend Pleadings [Doc. 149], filed July 10, 2015. In this motion,
Plaintiff moves the Court to extend the deadline for filing motions to amend from July 10, 2015,
to September 9, 2015. 1 In support of this request, Plaintiff states that the deadline for taking
discovery in this case expires September 9, 2015 and the Plaintiff’s expert disclosures are not
due until August 18, 2015. Plaintiff submits that he may desire to amend his complaint in light
of information brought forth in discovery or through expert disclosures.
Defendant Apria responds that Plaintiff’s request to modify the scheduling order to allow
for amendment of pleadings until September 9, 2015, is illogical, because discovery would close
on the same day that Plaintiff may file a motion to amend its pleadings to presumably raise new
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In other filings, the parties have identified the deadline for completing discovery as being September 10, 2015.
[See, e.g., Doc. 170]. Whether the deadline expires on September 9 or 10, 2015, is inconsequential to the instant
decision. However, in briefing the instant motion, both parties referred to September 9 as the deadline, and the
Court has done the same.

and/or amend facts and claims. Apria maintains that this convergence of deadlines would
prevent Apria from taking additional discovery related to these new claims. Apria contends that
Plaintiff should have known the discovery that needed to be taken in this case in 2013, and
discovery should not be the basis for again extending the deadline for amending pleadings.
Apria notes that if the time for filing motions to amend were extended, Plaintiff would
presumably attempt to present a fifth amended pleading. Apria argues that it would be severely
prejudiced if the Court were to permit the Plaintiff to again amend his complaint.
While Rule 15(a) instructs that leave to amend will be freely given “when justice so
requires,” Rule 16(b) states that a scheduling order “may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Additionally, the Scheduling Order entered
in this case reiterates: “The schedule will not change except for good cause.” [Doc. 124 at 1
(emphasis in the original)].
Rule 16(b) is “designed to ensure that ‘at some point both the parties and the pleadings
will be fixed.’” Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (quoting Fed. R. Civ. P.
16, 1983 advisory committee’s notes). “[A] court choosing to modify the schedule upon a
showing of good cause, may do so only ‘if it cannot reasonably be met despite the diligence of
the party seeking the extension.’” Id. “Another important consideration for a district court
deciding whether Rule 16’s ‘good cause’ standard is met is whether the opposing party will
suffer prejudice by virtue of the amendment.” Id. (citing Inge v. Rock Fin. Corp., 281 F.3d 613,
625 (6th Cir. 2002)).
In the instant motion, Plaintiff moves the Court to extend the deadline for amending the
pleadings in this case. While the more liberal standard for amending contained in Rule 15 is
applicable to the underlying request to amend, the request for additional time to file a motion to
amend is governed by the good-cause standard discussed above. For the reasons stated below,
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the Court finds that the Plaintiff has not demonstrated good cause to modify the Scheduling
Order.
This case was filed approximately two and a half years ago on February 20, 2013. A
scheduling order was entered by the Honorable David L. Bunning, United States District Judge,
on September 6, 2013. This scheduling order did not set a deadline for filing motions to amend.
However, it required that fact discovery be completed by May 31, 2014.
On February 6, 2014, Plaintiff filed his first motion to amend, which was granted on
February 10, 2014, [Doc. 90]. Plaintiff filed his first amended complaint on February 14, 2014.
Following ruling on a dispositive motion, Plaintiff filed his second amended complaint on March
6, 2014, [Doc. 102], and on March 18, 2014, Plaintiff moved to again amend his complaint,
[Doc. 104]. This request was granted on April 11, 2014, and the third amended complaint was
filed on April 18, 2014, [Doc. 111].
On May 13, 2014, this case was reassigned to the Honorable Pamela L. Reeves, United
States District Judge, and on June 30, 2014, Judge Reeves entered a Scheduling Order, which
modified certain deadlines in this case. It directed that any motions to amend be filed no later
than 150 days prior to the trial date of December 8, 2015. [Doc. 124]. Thus, Plaintiff had up to
and including July 10, 2015, in which to move to again amend his complaint. On July 10, 2015,
Plaintiff filed the instant motion and another motion to amend [Doc. 148], which requested leave
to file the Plaintiff’s fourth amended complaint.
Given this history and procedural posture, the Court cannot find that Plaintiff could not
have reasonably complied with the deadline of July 10, 2015. To the contrary, the Plaintiff had
over two years to amend his pleadings and did amend his pleadings on three occasions, and in an
Order entered contemporaneously hereto, the Court has granted the Plaintiff’s request to file a
fourth amended complaint. The fourth amended complaint: updates the Plaintiff’s claims to
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reflect settlements reached with certain defendants; adds more specific allegations of negligence;
adds an allegation of negligence per se; adds allegations based upon the doctrine of res ipsa
loquitur; increases the Plaintiff’s demand for compensatory damages from $5,000,000 to
$9,000,000; and modifies Plaintiff’s demand for punitive damages.
The District Judge specifically set the motion to amend deadline to expire 60 days prior
to the deadline for taking discovery.

The Court cannot find that the fact that additional

discovery may be taken is not a basis for extending the deadline for amending. To the contrary,
it would impose a significant burden on Apria if the Plaintiff were permitted to change his claims
on the same date that the time for completing discovery expired. The Court finds that Apria
would be prejudiced by the relief requested by Plaintiff.
Based upon the foregoing, the Court finds that the Plaintiff has not shown good cause for
modifying the Scheduling Order, see Fed. R. Civ. P. 16, and therefore, the Motion to Modify
Scheduling Order to Extend Deadline for Filing Motions to Amend Pleadings [Doc. 149] is
DENIED.
IT IS SO ORDERED.
ENTER:

United States Magistrate Judge

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