McCollum et al v. Livingston et al

Filing 118

MEMORANDUM OPINION AND ORDER: Having determined that good cause exists, the court, pursuant to Rule 15(a), allows Plaintiffs to file an amended pleading in the interest of justice. Plaintiffs shall file a second amended complaint by 1/31/2014. As this is the second amended pleading, and in light of the age of this case, the court will allow no further amendment of Plaintiffs' pleadings. In light of the court's ruling, Defendant UTMB is permitted to file an amended motion pursua nt to Rule 12(c) by 2/7/2014. Likewise, Defendant Brad Livingston is permitted to file a second amended motion to dismiss on the basis of qualified immunity by 2/7/2014. Accordingly, the court denies as moot Defendant UTMB's 55 Motion to Dismiss Under FRCP 12(c), filed 5/30/2013; and also denies as moot Defendant Brad Livingston's 97 Amended Motion to Dismiss on the Basis of Qualified Immunity, filed 10/25/2013. (Ordered by Judge Sam A Lindsay on 1/28/2014) (tln)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STEPHEN MCCOLLUM, et al.,
Plaintiffs,
v.
BRAD LIVINGSTON, et al.,
Defendants.

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Civil Action No. 3:12-CV-2037-L

MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs’ Unopposed Motion to File Second Amended Complaint, filed
January 14, 2014. The court held a hearing on the motion on January 27, 2014. During the course
of the hearing, the court learned that Defendant University of Texas Medical Branch (“UTMB”)
opposed the motion. The deadline for amendment of pleading as set forth in the court’s previous
scheduling order has expired.
Plaintiffs seek leave to amend pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure. Before the court can modify a scheduling order and grant leave to amend a pleading
under Rule 15(a), the movant must first show “good cause” for failure to meet the scheduling order
deadline under Rule 16(b) of the Federal Rules of Civil Procedure. S & W Enters., L.L.C. v.
Southwest Bank of Alabama, 315 F.3d 533, 536 (5th Cir. 2003) (“Rule 16(b) governs amendment
of pleadings after a scheduling order deadline has expired.”). A scheduling order “may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b). The good
cause standard requires the “party seeking relief to show that the deadlines [could not] reasonably
be met despite the diligence of the party needing the extension.” S & W Enters., 315 F.3d at 535
(citation omitted). “Only upon the movant’s demonstration of good cause to modify the scheduling
Memorandum Opinion and Order – Page 1

order will the more liberal standard of Rule 15(a) apply to the district court’s decision to grant or
deny leave.” Id. at 536. In deciding whether to allow an untimely amendment, a court considers
“(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the
amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a
continuance to cure such prejudice.”

Id. (internal quotation marks, brackets, and citations

omitted).
During the hearing, the court heard argument or discussion as to each of the four factors.
After considering the four factors and arguments of counsel, the court, for the reasons stated on
the record, determines that good cause exists to modify its earlier scheduling order. Having
determined that good cause exists, the court, pursuant to Rule 15(a), allows Plaintiffs to file an
amended pleading in the interest of justice. Plaintiffs shall file a second amended complaint by
January 31, 2014. As this is the second amended pleading, and in light of the age of this case,
the court will allow no further amendment of Plaintiffs’ pleadings.
In light of the court’s ruling, Defendant UTMB is permitted to file an amended motion
pursuant to Rule 12(c) by February 7, 2014. Likewise, Defendant Brad Livingston is permitted
to file a second amended motion to dismiss on the basis of qualified immunity by February 7,
2014. Accordingly, the court denies as moot Defendant UTMB’s Motion to Dismiss Under FRCP
12(c), filed May 30, 2013; and also denies as moot Defendant Brad Livingston’s Amended Motion
to Dismiss on the Basis of Qualified Immunity, filed October 25, 2013.
It is so ordered this 28th day of January, 2014.

_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order – Page 2