Johnson v. Karr
Filing
51
MEMORANDUM OPINION AND ORDER granting 39 Motion to Dismiss filed by David Kahn, granting 48 Motion to Strike filed by Denise Johnson, and granting leave to replead and leave to file amended answer. (Ordered by Judge Sidney A Fitzwater on 5/31/2017) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DENISE JOHNSON,
Plaintiff,
VS.
JANET KARR, d/b/a KARR CATS
CATTERY,
Defendant-Third-Party Plaintiff,
VS.
DR. DAVID KAHN, et al.,
Third-Party Defendants.
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§ Civil Action No. 3:16-CV-1563-D
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MEMORANDUM OPINION
AND ORDER
Third-party defendant David Kahn, DVM (“Dr. Kahn”) moves to dismiss defendantthird-party plaintiff Janet Karr’s (“Karr’s”) action under Fed. R. Civ. P. 12(b)(6). Plaintiff
Denise Johnson (“Johnson”) moves to strike Karr’s first amended answer. Karr opposes
Johnson’s motion to strike, and she moves in her response for leave to file her amended
answer. For the reasons that follow, the court grants Dr. Kahn’s motion to dismiss, but also
grants Johnson leave to replead. And it grants Johnson’s motion to strike, but also grants
Karr leave to file her amended answer.
I
This is an action by Johnson against Karr alleging that Karr is liable on claims for
breach of warranty, negligence, and violation of the Texas Deceptive Trade
Practices-Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.41 et seq. (West
2011). Johnson asserts that Karr, an experienced cat owner and breeder, knew or should
have known that “Dallas,” the kitten she sold to Johnson, was infected with ringworm. Karr,
as third-party plaintiff, brings a third-party action against Dr. Kahn and two other third-party
defendants1, alleging claims for negligence and negligent misrepresentation in connection
with their treatment of “Dallas” for ringworm.
II
The court turns first to Dr. Kahn’s motion to dismiss, to which Karr has not
responded.
A
Before deciding the motion, the court addresses sua sponte whether Dr. Kahn’s
March 6, 2017 motion to dismiss, which is addressed to Karr’s third-party complaint, filed
January 20, 2017, has been mooted by Karr’s filing on March 24, 2017 of a first amended
third-party complaint. The court holds that it has not been mooted, because the first amended
third-party complaint was improperly filed without leave of court and can be disregarded.
“When a party moves to amend his complaint, he must do so in a procedurally proper
manner by complying with applicable rules of procedure.” Lefevre v. Connextions, Inc.,
2014 WL 1390861, at *2 (N.D. Tex. Apr. 10, 2014) (Fitzwater, C.J.) (quoting Tealer v.
Martinez, 2005 WL 1214707, at *1 (N.D. Tex. May 23, 2005) (Ramirez, J.)). Under Rule
1
Dee Shuttlesworth, DVM, and Campbell Nantucket Animal Hospital, PC d/b/a
Animal Medical Center of Richardson.
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15(a), a party may amend its pleading once as a matter of course within 21 days after serving
it, but “[i]n all other cases, a party may amend its pleading only with the opposing party’s
written consent or the court’s leave.” Karr did not seek leave before filing her amended third
party complaint, and it does not appear that she obtained the opposing parties’ written
consent. Accordingly, the court in deciding Dr. Kahn’s motion to dismiss will disregard
Karr’s improperly-filed first amended third-party complaint and address the sufficiency of
her third-party complaint.
B
In deciding a Rule 12(b)(6) motion, the court evaluates the sufficiency of the thirdparty complaint “by accepting all well-pleaded facts as true, viewing them in the light most
favorable to the [third-party] plaintiff.” Bramlett v. Med. Protective Co. of Fort Wayne, Ind.,
855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (brackets omitted) (quoting In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). “The court’s review [of
a Rule 12(b)(6) motion] is limited to the [third-party] complaint, any documents attached to
the [third-party] complaint, and any documents attached to the motion to dismiss that are
central to the claim and referenced by the [third-party] complaint.” Lone Star Fund V ( U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). To survive Dr. Kahn’s
motion, Karr’s third-party complaint must allege “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Ashcroft
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v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough
to raise a right to relief above the speculative level[.]”). “[W]here the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679 (brackets omitted) (quoting Rule 8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading
must contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Although “the pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’” it demands more than “‘labels and conclusions.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). And “‘a formulaic recitation of the elements of a cause
of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
C
In her third-party complaint, Karr asserts a negligence claim against Dr. Kahn.2 But
she does not plausibly allege any facts that would permit the court to reasonably infer that
Dr. Kahn acted negligently. Karr alleges that “[t]he treating veterinarian, [Dr. Kahn],
diagnosed Dallas with ringworm, prescribed Terbinafine to be given for 7 days, and
recommended that Dallas be reevaluated 28 days after diagnosis,” 3d Party Compl. ¶ 9, and
2
Although the third party complaint also contains a negligent misrepresentation claim
that refers to “Third-Party Defendants,” Karr does not contend that Dr. Kahn made any
misrepresentation and does not otherwise allege conduct on the part of Dr. Kahn that would
support this claim.
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that “Karr began the ringworm treatment at the instruction and under the supervision of Dr.
Kahn and Animal Medical Center of Richardson,” id. ¶ 10. In support of her negligence
cause of action, Karr alleges:
As licensed veterinarians, Third-Party Defendants had a duty to
Karr to examine, evaluate, diagnose, and treat Dallas’s
ringworm consistent with the applicable standard of care in the
veterinarian practice. To the extent the finder of fact finds that
Dallas was not free of ringworm on December 3-4, 2015, or that
some standard of care was not met in diagnosing, treating, or
assessing Dallas’s ringworm condition, Third-Party Defendants
are liable to Plaintiff for breach of their professional duties as
licensed veterinarians.
Id. ¶ 18. Karr has failed to plausibly allege, however, that in treating “Dallas” for ringworm,
Dr. Kahn acted negligently or breached any standard of care. As Dr. Kahn argues in his
motion to dismiss, “[t]here is no allegation that Dr. Kahn performed the reevaluation,
misdiagnosed ringworm (especially since ringworm is the complained of disease), or
somehow failed to inform [Karr] or [Johnson] that ‘Dallas’ had ringworm.” D. Kahn Br. 2.
Because Karr has failed to plausibly allege that Dr. Kahn acted negligently in his diagnosis
and treatment of “Dallas,” the court grants Dr. Kahn’s motion to dismiss Karr’s third-party
action against him.
D
Although the court is dismissing Karr’s third-party action against Dr. Kahn, it will
permit Karr to replead. See, e.g., In re Am. Airlines, Inc., Privacy Litig., 370 F.Supp.2d 552,
567-68 (N.D. Tex. 2005) (Fitzwater, J.) (noting that district courts often afford plaintiffs at
least one opportunity to cure pleading deficiencies before dismissing case, unless it is clear
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that defects are incurable or plaintiffs advise court that they are unwilling or unable to amend
in a manner that will avoid dismissal). Because there is no indication that Karr cannot, or
is unwilling to, cure the pleading defects the court has identified, the court grants her 28 days
from the date this memorandum opinion and order is filed to file an amended third-party
complaint.
III
The court now turns to Johnson’s April 17, 2017 motion to strike Johnson’s first
amended answer.
Under Rule 15(a), a party may amend its pleading once as a matter of course within
21 days after serving it, but “[i]n all other cases, a party may amend its pleading only with
the opposing party’s written consent or the court’s leave.” Karr did not seek leave before
filing her amended answer. In her response to Johnson’s motion to strike, Karr argues that
the magistrate judge’s March 2, 2017 order extending the deadline for “Amendment of
Pleadings” until April 14, 2017 gave her the right to file a first amended answer without
leave of court. The court disagrees.
The October 24, 2016 scheduling order provided that “[a] party must file a motion for
leave to amend pleadings no later than December 30, 2016.” Oct. 24, 2016 Order at 2
(emphasis added). Although the magistrate judge’s March 2, 2017 order extended certain
deadlines in the scheduling order, it did not otherwise alter the regimen of the order. See
Mar. 2, 2017 Order at 1 (“The following deadlines are extended: . . . Amendment of
Pleadings - April 14, 2017.” (emphasis added)). In fact, the March 2, 2017 order specifically
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states that “[a]ll other terms of the [scheduling order] remain in full force and effect.” Id.
Accordingly, although the March 2, 2017 order enlarged the deadline for filing a motion for
leave to amend pleadings from December 30, 2016 to April 14, 2017, it did not alter the
requirement that a party move for leave to amend by this date.
Accordingly, Johnson’s motion to strike Karr’s first amended answer is granted.
IV
In Karr’s May 4, 2017 response brief, she moves—essentially in the alternative—for
leave to file her amended answer.
A
Because Karr’s motion is untimely under the court’s scheduling order, as amended by
the magistrate judge’s order—it was due by April 14, 2017—the court must first decide
under the good cause standard of Rule 16(b)(4) whether to modify the scheduling order to
permit the motion to be filed. See, e.g., S & W Enters., L.L.C. v. SouthTrust Bank of Ala.,
N.A., 315 F.3d 533, 536 (5th Cir. 2003); Valcho v. Dall. Cnty. Hosp. Dist., 658 F.Supp.2d
802, 814 (N.D. Tex. 2009) (Fitzwater, C.J.). To meet this standard, the moving party must
show that, despite its diligence, it could not reasonably have met the scheduling order
deadline. See S & W Enters., 315 F.3d at 535. Only if the movant first satisfies the
requirements of Rule 16(b)(4) must the court next determine whether to grant leave to amend
under the more liberal standard of Rule 15(a)(2), which provides that “[t]he court should
freely give leave when justice so requires.” See S & W Enters., 315 F.3d at 536; Am.
Tourmaline Fields v. Int’l Paper Co., 1998 WL 874825, at *1 (N.D. Tex. Dec. 7, 1998)
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(Fitzwater, J.).
“The ‘good cause’ standard focuses on the diligence of the party seeking to modify
the scheduling order.” Cut-Heal Animal Care Prods., Inc. v. Agri-Sales Assocs., Inc., 2009
WL 305994, at *1 (N.D. Tex. Feb. 9, 2009) (Fitzwater, C.J.). Mere inadvertence on the part
of the movant, and the absence of prejudice to the nonmovant, are insufficient to establish
“good cause.” Id.; Price v. United Guar. Residential Ins. Co., 2005 WL 265164, at *4 (N.D.
Tex. Feb. 2, 2005) (Fish, C.J.) (citing Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir.
1990)). Instead, the movant must show that, despite its diligence, it could not reasonably
have met the scheduling deadline. See S & W Enters., 315 F.3d at 535; Am. Tourmaline
Fields, 1998 WL 874825, at *1 (citing 6A Wright, et al., Federal Practice & Procedure, §
1522.1 at 231 (2d ed. 1990)); Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir.
2003) (citing S & W Enters., 315 F.3d at 535).
The court assesses four factors when deciding whether to grant an untimely motion
for leave to amend under Rule 16(b)(4): “(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.” S & W
Enters., 315 F.3d at 536 (citation, internal quotation marks, and brackets omitted). The court
considers the four factors holistically and “does not mechanically count the number of factors
that favor each side.” EEOC v. Serv. Temps., Inc., 2009 WL 3294863, at *3 (N.D. Tex. Oct.
13, 2009) (Fitzwater, C.J.), aff’d, 679 F.3d 323 (5th Cir. 2012). When applying this
multi-factor test, the court usually denies motions to amend the scheduling order when the
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moving party fails to demonstrate that, despite its diligence, it could not have reasonably met
the scheduling deadline. See, e.g., id. (stating that court “remember[ed] at all times that the
good cause inquiry focuse[d] on the diligence of the party seeking to modify the scheduling
order,” and finding that movant had failed to satisfy good cause standard of Rule 16(b)(4)
where it had not provided plausible explanation for its delay, and that this failure to provide
plausible explanation outweighed the other factors in the court’s analysis).
B
1
The court first considers Karr’s explanation for failing to timely file her motion for
leave to file an amended answer. Karr contends that her failure to file a motion for leave was
not undertaken purposefully, but, instead, was simply due to her attorneys’ interpretation of
the March 2, 2017 Order: “Karr, through her attorneys, read the [March 2, 2017 Order] as
allowing amendment of pleading up until the deadline.” D. Br. 3. Karr’s explanation for
failing to timely file a motion for leave to amend her answer is unpersuasive and is based on
a misreading of the scheduling order and the magistrate judge’s order. This factor weighs
against granting Karr’s motion.
2
The second factor considers the importance of the amendment. Karr maintains that
the amendment is very important to Karr’s ability to defend
herself against Plaintiff’s claims and many of the defenses raised
in the First Amended Answer (ECF NO. 47) are based upon
information Karr has obtained in the discovery process,
including information provided by Plaintiff.
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D. Resp. 4. Although Johnson does not address the Rule 16(b)(4) factors in her motion to
strike (and she has not filed a reply in support of her motion), she contends that many of the
defenses Karr raises are factually and/or legally insufficient “and would only force Plaintiff
to incur litigation expense to eliminate them.” P. Br. 3.
The court concludes that the amendment is important because it would allow Karr to
assert potentially case-dispositive affirmative defenses. Therefore, this factor weighs in favor
of granting Karr’s motion for leave.
3
The third factor considers potential prejudice in allowing the amendment. Johnson
contends that she will be prejudiced if Karr is allowed to amend her answer because the
discovery deadline is June 16, 2017, leaving her little time to conduct discovery on these
defenses, “especially in light of the fact that effective discovery on those issues cannot be
conducted without the report of Defendant’s expert, which is not due until May 19, 2017.”
P. Br. 2. Karr maintains that Johnson will not be prejudiced because she was provided notice
of Karr’s proposed answer within the deadline to amend pleadings, and discovery in this case
is still ongoing. Karr also posits that the length of time between amending pleadings and the
conclusion of the discovery period was agreed to by Johnson because she agreed to the
deadline to amend the discovery deadline currently in place. See P. 2/23/17 Br. 1 (“Plaintiff
has no objection and consents to the proposed extensions of deadlines, except those related
to expert witnesses.”).
The court concludes that granting Karr leave to amend her answer after the deadline
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for doing so will not prejudice Johnson. First, although Karr did not request leave to file her
amended answer until she filed her response to Johnson’s motion to strike (20 days after the
scheduling order deadline), she filed her amended answer by the deadline that would have
applied had she sought leave. This court has noted in similar contexts that when “a party
files a motion for leave to amend by the court-ordered deadline, there is a ‘presumption of
timeliness.’” Pyramid Transp., Inc. v. Greatwide Dall. Mavis, LLC, 2012 WL 5875603, at
*2 (N.D. Tex. Nov. 21, 2012) (Fitzwater, C.J.) (quoting Poly-Am., Inc. v. Serrot Int’l Inc.,
2002 WL 206454, at *1 (N.D. Tex. Feb. 7, 2002) (Fitzwater, J.)). Second, although the
discovery deadline is June 16, as the court explains next, a continuance of that deadline could
cure any prejudice. Third, Johnson contends that she cannot complete discovery on Karr’s
defenses until she receives the report of Karr’s expert, which was not due until May 19,
2017. But a continuance of the discovery deadline would also address this concern.
4
The fourth factor considers the availability of a continuance to cure any prejudice.
The trial of this case is currently set for a two-week docket in April 2018. The court can
continue the trial, if necessary, to cure any prejudice caused by allowing the amended
complaint. And it can also continue the discovery deadline to accommodate the need for
discovery concerning issues raised in Karr’s amended answer.
5
The court now considers the four factors holistically. “It does not mechanically count
the number of factors that favor each side.” Serv. Temps, 2009 WL 3294863, at *3.
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Assessing the factors as a whole, the court holds that Karr has met the good cause standard
for modifying the scheduling order. Although Karr’s explanation for the delay in seeking
leave to amend her answer is flawed in certain respects—most notably, her reliance on her
counsels’ misreading of the scheduling order and magistrate judge’s order, the proposed
amendment is important, and the court can adequately address any prejudice resulting from
allowing the amended answer by continuing the discovery deadline and trial setting.
C
The court next evaluates under the Rule 15(a) standard whether leave to amend should
be granted. S & W Enters., 315 F.3d at 536. “The court should freely give leave when
justice so requires.” Rule 15(a)(2). The court can discern no compelling reason under this
lenient standard to deny Karr leave to amend. The court therefore grants Karr’s motion. She
must file her amended answer within three days of the date this memorandum opinion and
order is filed.
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*
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*
For the reasons explained, Dr. Kahn’s motion to dismiss is granted, Johnson is granted
leave to replead, Johnson’s motion to strike is granted, and Karr is granted leave to file her
amended answer.
SO ORDERED.
May 31, 2017.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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