Mauer v. Wal-Mart Stores Inc et al

Filing 49

MEMORANDUM OPINION AND ORDER: The Court GRANTS IN PART and DENIES IN PART Plaintiff Angela Mauer's Amended Motion for Leave to File Amended Petition [Dkt. No. 45 ] and ORDERS Plaintiff Angela Mauer to file, by December 18, 2017, a Second Amend ed Complaint that includes all of the amended allegations in her proposed her proposed Second Amended Petition [Dkt. No. 45-1] other than those in Paragraphs 4.10-4.12 and 5.9-5.10 and with the understanding that the Court has dismissed her claim fo r premises liability with prejudice and is not reviving that claim by this order. To accommodate this additional pleading, the Court extends the deadline for Defendants' leave to file a dispositive motion on Plaintiff's general neglige nce, negligent activity, and gross negligence claims to December 29, 2017, with a response due by January 19, 2018 and any reply due by February 2, 2018. And Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, Inc., d/b/a Wal-Mart #1055, and Wal-Mart Real Est Business must file an answer to Mauer's Second Amended Complaint by January 2, 2018. (Ordered by Magistrate Judge David L. Horan on 12/15/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANGELA MAUER,
Plaintiff,
V.
WAL-MART STORES, INC., ET AL.,
Defendants.

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No. 3:16-cv-2085-BN

MEMORANDUM OPINION AND ORDER1
Plaintiff Angela Mauer has filed an Amended Motion for Leave to File Amended
Petition. See Dkt. No. 45. In her Amended Motion for Leave to File Amended Petition,
Mauer explains that, “[t]hough Plaintiff’s First Amended Petition pled claims sounding
in premises liability, general negligence and gross negligence, there appears to be
confusion on Defendants’ part as to the nature of Plaintiff’s claims. Thus, Plaintiff
prays leave of the Court to Amend her Petition to conform her pleadings to provide
additional language and clarity with regard to her negligence and gross negligence
claims.” Id. at 2.
Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, Inc., d/b/a Wal-Mart
#1055, and Wal-Mart Real Est Business (collectively, “Wal-Mart”) have filed a

Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written
opinion” adopted by the Judicial Conference of the United States, this is a “written
opinion[] issued by the court” because it “sets forth a reasoned explanation for [the]
court’s decision.” It has been written, however, primarily for the parties, to decide
issues presented in this case, and not for publication in an official reporter, and should
be understood accordingly.
1

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response, see Dkt. No. 46, and Mauer filed a reply, see Dkt. No. 47.
As the Court explained in its briefing order, the following standards governing
Mauer’s motion, which is filed after the June 1, 2017 deadline for motions for leave to
amend pleadings set by the Court’s Initial Scheduling Order [Dkt. No. 20]:
Because the standards by which the Court evaluates a motion for
leave to amend the pleadings vary according to whether the motion was
filed before or after the deadline established in the scheduling order, the
Court must determine, as an initial matter, whether the motion was filed
before or after the deadline. See, e.g ., Orthoflex, Inc. v. Thermotek, Inc.,
Nos. 3:11-cv-08700-D & 3:10-cv-2618-D, 2011 WL 4398279, at *1 (N.D.
Tex. Sept. 21, 2011) (“Motions for leave to amend are typically governed
by [Federal Rule of Civil Procedure] 15(a)(2), or, if the time to seek leave
to amend has expired, by [Federal Rule of Civil Procedure] 16(b)(4) and
then by Rule 15(a)(2).”).
When the deadline for seeking leave to amend pleadings has
expired, the Court must first determine whether to modify the scheduling
order under the Federal Rule of Civil Procedure 16(b)(4) good cause
standard. See S&W Enters., L.L.C. v. SouthTrust Bank of Ala., N.A., 315
F.3d 533, 536 (5th Cir. 2003). The Court’s scheduling order “may be
modified only for good cause and with the judge’s consent.” FED. R. CIV.
P. 16(b)(4). To meet the good cause standard, the party must show that,
despite her diligence, she could not reasonably have met the scheduling
order deadline. See S&W, 315 F.3d at 535. The Court assesses four
factors when deciding whether to grant an untimely amendment 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.’” Id. at 536 (quoting Reliance Ins. Co. v. La. Land &
Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997)).
In the related context of deciding whether to exclude an untimely
expert designation, the United States Court of Appeals for the Fifth
Circuit, looking to the same four factors, has explained that, if “the first
and third factors militate against permitting the testimony, the trial
court was not obligated to continue the trial,” where, “[o]therwise, the
failure to satisfy the rules would never result in exclusion, but only in a
continuance,” and, “[b]ecause of a trial court’s need to control its docket,
a party’s violation of the court’s scheduling order should not routinely
justify a continuance.” Hamburger v. State Farm Mut. Auto. Ins. Co., 361
F.3d 875, 883-84 (5th Cir. 2004); see also Reliance Ins., 110 F.3d at 258
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(“District judges have the power to control their dockets by refusing to
give ineffective litigants a second chance to develop their case.”).
Moreover, courts “more carefully scrutinize a party’s attempt to
raise new theories of recovery by amendment when the opposing party
has filed a motion for summary judgment.” Parish v. Frazier, 195 F.3d
761, 764 (5th Cir. 1999) (citations omitted). And, “[w]hen leave to amend
is sought after a summary judgment motion has been filed, courts
routinely decline to permit the moving party to amend.” Hunsinger v. Sko
Brenner American, Inc., No. 3:13-cv-988-D, 2014 WL 1462443, at *14
(N.D. Tex. Apr. 15, 2014). As the Fifth Circuit has recognized, “[t]o grant
... leave to amend is potentially to undermine [the non-amending party’s]
right to prevail on a motion that necessarily was prepared without
reference to an unanticipated amended complaint.... A party should not,
without adequate grounds, be permitted to avoid summary judgment by
the expedient of amending [his] complaint.” Overseas Inns S.A. P.A. v.
United States, 911 F.2d 1146, 1151 (5th Cir. 1990) (internal quotation
marks omitted).
The Fifth Circuit recently invoked this standard in affirming a
district court’s denial of an untimely amendment to add a new claim,
explaining:
Finally, Squyres sought leave to amend his complaint
on August 22, 2013. By that time, the December 31, 2012
deadline to amend pleadings had long since passed.
Therefore, because Squyres sought to amend his pleadings
after the deadline set in the scheduling order, Squyres had
to satisfy Rule 16(b)’ s standard and again demonstrate that
he could not reasonably have met this deadline despite
exercising diligence. Citing both Rule 16 and Rule 15, the
district court denied Squyres’s motion, concluding that
Squyres had failed “to show that a third amended complaint
should be permitted at this stage in the litigation.”
Squyres fails to show good cause for his delay.
Squyres’s only reason for failing to amend his complaint
sooner is that he did not have the basis to allege a fraud
claim until after he had deposed Frediani in mid-August
2013. Squyres, however, had informed the district court
back in September 2012 that there was a possibility he
would amend his complaint to include a fraudulent
misrepresentation claim. Despite this knowledge, Squyres
then waited almost a year to seek leave to amend his
complaint. See E.E.O.C. v. Serv. Temps Inc., 679 F.3d 323,
334 (5th Cir. 2012) (affirming that the district court had
acted within its discretion in denying leave to amend
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because the plaintiff’s “reasonable suspicion” of a potential
claim “accent[ed] [the plaintiff’s] inability to explain the
delay” in asking for leave to amend). Even assuming that it
was reasonable for Squyres to delay amending his complaint
until after he had deposed Frediani, his delay in scheduling
Frediani’s deposition was self-imposed, as discussed above.
See Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 644
(5th Cir. 2007) (affirming the district court’s denial of leave
to amend under Rule 15 because the plaintiffs “had been
aware of the factual underpinnings of the [new] fraud claim
for some time, and ... they had not been diligent in pursuing
the claim”).
In addition to failing to explain his delay (both in
seeking leave to amend and in scheduling Frediani’s
deposition), Squyres also fails to demonstrate that the
amendment would have caused no prejudice to Appellees.
Because Appellees had sought no discovery related to
Squyres’s fraud claim, allowing amendment would have
imposed additional discovery costs. Moreover, Appellees had
already filed their summary judgment motion by the time
Squyres sought leave to amend. Thus, not only would the
district court have needed to reopen discovery, but it also
would have needed to allow another round of dispositive
motions. See Parish v. Frazier, 195 F.3d 761, 764 (5th Cir.
1999) (per curiam) (noting that this court, even under the
more liberal Rule 15 standard, “more carefully scrutinize[s]
a party’s attempt to raise new theories of recovery by
amendment when the opposing party has filed a motion for
summary judgment”).
Squyres’s final argument is that the district court
abused its discretion because it ignored his quid pro quo
agreement with Appellees. This argument does not help
Squyres. For one, the district court was not bound by the
parties’ agreement and instead had “broad discretion to
preserve the integrity and purpose of the pretrial order.” S
& W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315
F.3d 533, 535 (5th Cir. 2003) (internal quotation marks and
citation omitted); see also FED. R. CIV. P. 16(b)(4) (stating
that a scheduling order “may be modified only for good
cause and with the judge’s consent ” (emphasis added)).
Next, it was also not an abuse of discretion for the district
court to grant Appellees’ motion to amend their answer, but
to deny Squyres’s motion to amend his complaint. Although
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the deadline to amend the pleadings had also already
passed when Appellees filed their motion for leave to
amend, Appellees had not yet filed their summary judgment
motion and discovery had not yet closed under the new July
21 deadline. Squyres, on the other hand, did not file his
motion until the end of August, after discovery had closed,
after Appellees had filed their motion for summary
judgment, and just two days before Squyres’s response to
the summary judgment motion was due. It was therefore
not an abuse of discretion for the district court to conclude
that Squyres’s motion came too late in the litigation.
Squyres v. Heico Companies, L.L.C., 782 F.3d 224, 238-39 (5th Cir. 2015).
If the movant satisfies these Rule 16(b)(4) requirements, the Court
must then determine whether to grant leave to amend under Federal
Rule of Civil Procedure 15(a)(2)’s more liberal standard, which provides
that “[t]he court should freely give leave when justice so requires.” FED.
R. CIV. P. 15(a)(2); see S&W, 315 F.3d at 536. When the party is not
subject to an expired deadline for seeking leave to amend, Rule 15(a)
requires that leave to amend be granted freely “when justice so requires.”
FED. R. CIV. P. 15(a)(2). Leave to amend is not automatic, see Jones v.
Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005), but the
federal rules’ policy “is to permit liberal amendment to facilitate
determination of claims on the merits and to prevent litigation from
becoming a technical exercise in the fine points of pleading,” Dussouy v.
Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981). The Court “may
consider a variety of factors” when deciding whether to grant leave to
amend, “including undue delay, bad faith or dilatory motive on the part
of the movant, repeated failures to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, and futility of the amendment.” Jones, 427
F.3d at 994. But Rule 15(a) provides a “strong presumption in favor of
granting leave to amend,”Fin. Acquisition Partners, LP v. Blackwell, 440
F.3d 278, 291 (5th Cir. 2006), and the Court must do so “unless there is
a substantial reason to deny leave to amend,” Dussouy, 660 F.2d at 598;
accord Jebaco Inc. v. Harrah’s Operating Co. Inc., 587 F.3d 314, 322 (5th
Cir. 2009) (“leave to amend is to be granted liberally unless the movant
has acted in bad faith or with a dilatory motive, granting the motion
would cause prejudice, or amendment would be futile”).
Dkt. No. 43 at 2-7.
Wal-Mart argues “that Plaintiff’s Second Amended Petition is futile because
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Plaintiff’s claims are limited to a theory of premises defect, not negligence/negligent
activity, and all negligence/negligent activity claims should be dismissed as a matter
of law”; that, “[a]lternatively, [Wal-Mart] would be unduly prejudiced by new theories
of recovery in Plaintiff’s proposed Second Amended Petition”; and that, “[f]or these
reasons, and those detailed below, Plaintiff’s Amended Motion should be denied.” Dkt.
No. 46 at 2.
As to futility, as Wal-Mart notes, the “Court has already dismissed Plaintiff’s
premises liability claims, finding no genuine issue of material fact on the essential
element of whether a condition posed or created an unreasonable risk of harm,” but the
Court has already given leave for Wal-Mart to file a dispositive motion as to Plaintiff’s
general negligence and gross negligence claims – and any negligent activity or
negligent undertaking claim or theory that the Court may grant Mauer leave to amend
to pursue. Id. at 5-6. Wal-Mart will have the chance on that motion to attempt to
establish that, “[a]s a matter of law, Plaintiff has no claim for general negligence,
negligent activity, or negligent undertaking” and that, “[w]ithout a viable claim for
negligence and an award of actual damages for same, Plaintiff has no claim for gross
negligence,” id. at 6, as Wal-Mart argues in opposing leave to amend, see id. at 3-6.
“This Court’s almost unvarying practice when futility is raised is to address the
merits of the claim or defense in the context of a Rule 12(b)(6) or Rule 56 motion. The
court only infrequently considers the merits of new causes of action in the context of
Rule 15(a). The court prefers instead to do so in the context of a Rule 12(b)(6) or Rule
56 motion, where the procedural safeguards are surer.” Ecoquij-Tzep v. Hawaiian
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Grill, No. 3:16-cv-625-BN, 2017 WL 2666154, at *3 (N.D. Tex. June 21, 2017). And that
is what the Court will do here. Leave to amend will not be denied as futile.
But in considering Rules 16(b)(4) and 15(a), significant consideration must be
given to the importance of the amendment and the potential prejudice in allowing the
amendment. Mauer offers little explanation for why she could not have timely moved
for leave to amend or even moved out-of-time for leave on a date sooner than after the
dispositive motions deadline passed and Wal-Mart’s Motion for Summary Judgment
was briefed and argued. But, under the circumstances here, the most critical issue
seems to be potential prejudice in allowing the new allegations where this case is
specially set for jury trial on March 28, 2018 and discovery in this case closed on
September 8, 2017. The Court will not continue the trial or reopen discovery under
these circumstances, where Mauer could have amended months ago and asserts only
that she seeks to address Wal-Mart’s confusion as to the nature of her existing claims.
Wal-Mart argues that, “[i]n her Second Amended Petition, Plaintiff asserts – for
the first time in this case – a theory of negligent undertaking” and “that granting
Plaintiff leave to add this new claim unfairly surprises and unduly prejudices” Dkt. No.
46 at 6.
According to Wal-Mart,
[a] negligent undertaking theory is a separate and distinct theory that is
not encompassed in a pleading of general negligence (which Plaintiff
asserted in her First Amended Petition) or even negligent activity (which
Plaintiff also asserts for the first time in her proposed Second Amended
Petition). See Torrington Co. v. Stutzman, 46 S.W.3d 829, 838-39 (Tex.
2000); Custom Transit, L.P. v. Flatrolled Steel, Inc., 375 S.W.3d 337,
362-63 (Tex. App. – Houston [14th Dist.] 2012, pet. denied). A claim for
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negligent undertaking involves three unique essential elements that were
not raised or addressed during discovery in this matter: (1) the defendant
undertook to perform services that it knew or should have known were
necessary for the plaintiff's protection; (2) the defendant failed to exercise
reasonable care in performing those services; and (3) either the plaintiff
relied on the defendant's performance, or the defendant’s performance
increased the plaintiff's risk of harm. See Torrington Co., 46 S.W.3d at
839.
For these reasons, Defendants would be unduly prejudiced if
Plaintiff is granted leave to add this new claim at this time because
Defendants are surprised by the late addition of this new claim and have
not been afforded the opportunity to conduct discovery on same.
Id. at 6-7.
Mauer replies that Wal-Mart “will not be unduly prejudiced by new theories of
recovery in Plaintiff’s proposed Second Amended Petition because Plaintiff has not pled
any causes of action that differ in their factual basis, or that will require additional
discovery or require the submission of any new evidence,” and that “justice requires
that leave be granted to Plaintiffs just as leave was granted to Defendants to amend
their defective Motion for No-Evidence Summary Judgment on Plaintiff’s Claims,
which failed to address all of Plaintiff’s claims.” Dkt. No. 47 at 3.
Taking the last point first, the Court disagrees. The Court has explained the
judicial economy interests that would be served by allowing Wal-Mart to file a second
dispositive motion, and the Court noted that granting that leave does not require
reopening discovery or continuing the trial setting. See Dkt. No. 41 (“But, in the
interest of resolving Defendants’ challenges to these claims before the parties and the
Court begin pretrial preparation in earnest, the Court, in its discretion under Federal
Rule of Civil Procedure 16(b)(4), finds good cause to grant Defendants leave to file a
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dispositive motion on Plaintiff's general negligence and gross negligence claims by
December 15, 2017, with a response due by January 5, 2018 and any reply due by
January 19, 2018. The Court finds that, where this motion can be filed, briefed, and
resolved without the need for any continuance or extensions of other deadlines, any
prejudice to Plaintiff from the belated challenge does not outweigh the interest of
resolving legal challenges to these claims, as pleaded and as to which discovery has
closed, before trial.”).
But Mauer acknowledges that “[a]n amendment imposes undue prejudice when
the amendment would require the defendant to reopen discovery and prepare a defense
for a claim different from the one that was previously before the court.” Dkt. No. 47 at
6 (internal quotation marks omitted). Mauer asserts that, as alleged in Paragraphs
4.10-4.12 and 5.9-5.10 of her Second Amended Petition, Mauer’s “negligent
undertaking claim will not require Defendants to reopen discovery or change the
strategy of their defense for this case,” where her “negligent undertaking claim does
not change the damage model, discovery needs, the parties to the suit, or the injuries
that have been pled,” where “[t]he claim would not require the submission of any
additional evidence as it falls underneath the umbrella of Plaintiff’s negligence claim
and more specifically addresses Defendants’ undertaking of the duty to keep patrons
safe from the electric carts that they provide, which has been the central issue to this
litigation since inception,” and where “Defendants chose to supply the electric carts in
the first place, and to undertake the duty to make electric-cart use safe by creating
narrowly-crafted policies and procedures that address electric cart safety,” such that
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“[t]he amended petition does not unduly prejudice the Defendants because no new
theories have been pled.” Id.
The Court cannot agree. Under Texas law, negligence claims and negligent
undertaking claims are separate and involve distinct elements, as Wal-Mart lays out.
There has been some discovery on Wal-Mart’s Standard Operating Procedures, on
which Mauer relied in opposing summary judgment on her premises liability claim.
But her summary judgment response was focused on premises liability and perhaps
her general liability claim, not an unpleaded negligent undertaking claim or theory.
And her prior petitions did not plead a negligent undertaking claim either by name or
by alleging the facts necessary to plead that distinct claim, as she now proposes to do
at this late date. The record does not support a finding that Wal-Mart was on notice
of this distinct claim or knew that it should seek whatever discovery it believes that
it needs to defend it, and Mauer’s assertions to the contrary do not change that.
The Court determines that Mauer has not shown good cause to grant her leave
to amend to please the negligent undertaking claim and supporting allegations set
forth in Paragraphs 4.10-4.12 and 5.9-5.10 of her Second Amended Petition. But WalMart does not claim that it will be unduly prejudiced by Mauer’s amended pleading of
general negligence, negligent activity, and gross negligence claims, and the Court
determines that Mauer should be granted leave under Rules 15(a)(2) and 16(b)(4) to
file her Second Amended Petition as a Second Amended Complaint (as the pleading
should now be styled in federal court) with all of the amended allegations other than
those in Paragraphs 4.10-4.12 and 5.9-5.10 of her proposed Second Amended Petition
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and with the understanding that her claim for premises liability has been dismissed
with prejudice and is not revived by this leave to file a second amended complaint.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS IN PART
and DENIES IN PART Plaintiff Angela Mauer’s Amended Motion for Leave to File
Amended Petition [Dkt. No. 45] and ORDERS Plaintiff Angela Mauer to file, by
December 18, 2017, a Second Amended Complaint that includes all of the amended
allegations in her proposed her proposed Second Amended Petition [Dkt. No. 45-1]
other than those in Paragraphs 4.10-4.12 and 5.9-5.10 and with the understanding that
the Court has dismissed her claim for premises liability with prejudice and is not
reviving that claim by this order.
To accommodate this additional pleading, the Court extends the deadline for
Defendants’ leave to file a dispositive motion on Plaintiff’s general negligence,
negligent activity, and gross negligence claims to December 29, 2017, with a response
due by January 19, 2018 and any reply due by February 2, 2018. And Defendants
Wal-Mart Stores, Inc., Wal-Mart Stores East, Inc., d/b/a Wal-Mart #1055, and
Wal-Mart Real Est Business must file an answer to Mauer’s Second Amended
Complaint by January 2, 2018.
SO ORDERED.
DATED: December 15, 2017
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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