United States District Court, Eastern District of Tennessee, Chattanooga
SUSAN K. LEE UNITED STATES MAGISTRATE JUDGE
Before the Court are Plaintiffs’ motion to amend their complaint [Doc. 69] and their motion to revise the scheduling order [Doc. 84]. In their motion to amend, Plaintiffs sought to add allegations related to their claims of negligence, negligence per se, gross negligence, and reckless conduct, and to add a claim for punitive damages. Plaintiffs filed a proposed amended complaint as an exhibit to the motion [Doc. 69-1]. Defendants filed a response in opposition to Plaintiffs’ motion to amend the complaint [Doc. 80], in which they argued that Plaintiffs’ proposed amendments should be denied because they are futile and because they would cause undue delay and prejudice to Defendants given the short amount of time before the discovery deadline expires. Plaintiffs, in their reply brief [Doc. 89], state that they are no longer seeking to amend the complaint to add a claim for punitive damages, and Plaintiffs filed a revised proposed amended complaint [Doc. 95]. Defendants then filed a supplemental brief [Doc. 94] in response to Plaintiffs’ reply and revised proposed amended complaint, in which they oppose the revised proposed amended complaint. This motion is now ripe.
As to Plaintiffs’ motion to revise the scheduling order [Doc. 84], Plaintiffs request that the deadlines for expert disclosures, final witness lists, all discovery, and pretrial disclosures be extended. Defendants have filed a response in partial opposition to Plaintiffs’ motion [Doc. 93], in which Defendants agree with the extensions requested by Plaintiffs regarding the depositions of a treating physician and the parties’ accident reconstruction experts, but oppose the other requested extensions. The time to file a reply has now passed and Plaintiffs did not file a reply.Thus, this motion is also now ripe.
I. MOTION TO AMEND COMPLAINT
Rule 15(a)(1) of the Federal Rules of Civil Procedure allows amendments to pleadings “once as a matter of course” within “21 days after serving [the pleading], or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Plaintiffs filed their motion to amend more than 21 days after Defendants’ answer to the complaint, and thus Plaintiffs may not amend as a matter of course. Where a party does not have the right to amend as a matter of course, “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). “In deciding whether to grant a motion to amend, courts should consider undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment.” Brumbalough v. Camelot Care Ctrs., 427 F.3d 996, 1001 (6th Cir. 2005) (citations omitted).
“Ordinarily, delay alone does not justify denial of leave to amend.” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002). “Delay that is neither intended to harass nor causes any ascertainable prejudice is not a permissible reason, in and of itself to disallow an amendment of a pleading.” Id. (quoting Tefft v. Seward, 689 F.2d 637, 639 n.2 (6th Cir. 1982)). “At some point, however, delay will become undue, placing an unwanted burden on the court, or will become prejudicial, placing an unfair burden on the opposing party.” Id. (quoting Adams v. Gould, 739 F.2d 858, 863 (3d Cir. 1984)) (internal quotation marks omitted). “Although Rule 15(a) indicates that leave to amend shall be freely granted, a party must act with due diligence if it intends to take advantage of the Rule’s liberality.” United States v. Midwest Suspension & Brake, 49 F.3d 1197, 1202 (6th Cir. 1995) (citing Troxel Mfg. Co. v. Schwinn Bicycle Co., 489 F.2d 968 (6th Cir. 1973)). “The longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice.” Phelps v. McClellan, 30 F.3d 658, 662 (6th Cir. 1994) (quoting Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983) (internal quotation marks omitted). In Phelps, the Sixth Circuit elaborated on the idea of prejudice as follows:
In determining what constitutes prejudice, the court considers whether the assertion of the new claim or defense would: require the opponent to expend significant additional resources to conduct discovery and prepare for trial; significantly delay the resolution of the dispute; or prevent the plaintiff from bringing a timely action in another jurisdiction.
Phelps, 30 F.3d at 662–63 (citing Tokio Marine & Fire Ins. Co. v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir. 1986)).
Because Plaintiffs are no longer seeking to add a punitive damages claim, and because Defendants agree that the amendment is now moot as to the punitive damages claim, the Court need not address the matter of punitive damages further. Defendants continue to object to Plaintiffs’ revised proposed amended complaint with respect to the negligence per se claims and claims that Defendant Covenant Partners Transport, Inc. was reckless and grossly negligent in the hiring, supervision and training of Defendant Frank Kopocs. Defendants, in their supplemental response in opposition to Plaintiffs’ revised proposed amended complaint, do not argue futility with regard to these remaining claims. Rather, Defendants argue that Plaintiffs should not be permitted to amend their complaint to include these claims because of undue delay and prejudice to Defendants.
In short, Defendants argue that Plaintiffs’ revised proposed amended complaint will cause undue delay and prejudice because of the short amount of time remaining in the discovery period and because Plaintiffs filed their motion to amend on the date the deadline for amendments to pleadings expired. Defendants state that additional written discovery would be necessary to require Plaintiffs to “state with particularity every witness who has knowledge regarding the claims for negligence per se” and to produce any documents that support Plaintiffs’ claims for negligence per se, as well as to “identify the factual basis for the claims for negligent hiring and negligent entrustment.” [Doc. 94 at Page ID # 349-50]. Defendants state that “additional discovery will be necessary with regard to these claims”; that they “are entitled to conduct whatever discovery is necessary on these claims”; and that they will be prejudiced because they will not be able to conduct the necessary discovery given the current discovery deadline [Id. at Page ID # 349]. While Defendants represent that they are entitled to discovery as a result of the amendment and will not be able to obtain it prior to the discovery deadline, Defendants also state that they are “strenuously opposed to any extensions that might jeopardize the trial date of this matter, ” and that they do not want “any of the discovery deadlines to be moved.” [Id. at Page ID # 349-351]. Defendants also argue that Plaintiffs’ reference to “gross negligence” is “improper in light of the plaintiffs’ withdrawal of their claim for punitive damages.” [Id. at Page ID # 349-50]. Additionally, Defendants contend that because Plaintiffs delayed in filing their proposed amendment until the final day for such amendments under the scheduling order, rather than filing it when Plaintiffs first became aware of these potential claims in December 2014 after the depositions of Defendants, this undue delay has prejudiced them.
In their reply brief, Plaintiffs argue that there was no undue delay in bringing these additional causes of action, and Plaintiffs state that these new claims will not prejudice Defendants. Plaintiffs’ counsel provides a listing of his schedule including jury and bench trials which took place in January and February of 2015, after Plaintiffs’ counsel had received the transcripts of Defendants’ depositions in early January 2015. Plaintiffs’ counsel acknowledges that his trial schedule “is not atypical of a litigator, ” but shows that any delay in filing the motion to amend was not undue [Doc. 89 at Page ID # 325]. Plaintiffs contend that the new claims of negligence per se and negligent hiring, training, and supervision would not require additional discovery, as the former claims require a legal conclusion and the latter claims are based on the testimony of Defendants, not the testimony of Plaintiffs. Plaintiffs argue that Defendants have not shown what discovery would be necessary, nor have they shown how they would be prejudiced by the proposed new amendments.
There are two standards that courts follow when considering motions to amend-Rule 16’s good cause standard and Rule 15’s liberal amendment standard; which standard is applied depends on the timing of the motion. Where a motion to amend is filed after a scheduling order’s deadline has passed, the party seeking leave to amend must first show good cause under Rule 16(b) for failing to request leave to amend before the deadline had passed, and only then does the court evaluate the amendment under Rule 15(a). Hill v. Banks, 85 F. App’x 432, 433 (6th Cir. 2003); see also Leary v. Daeschner, 349 F.3d 888, 906-908 (6th Cir. 2003). Rule 16 requires the court to enter a scheduling order that limits the time for joinder of parties and amendment of pleadings in each case. Fed.R.Civ.P. 16. The purpose of this requirement is to “ensure that at some point both the parties and the pleadings will be fixed.” Leary, 349 F.3d at 906 (citations and internal quotation marks omitted). Where the plaintiff moves for leave to amend prior to the expiration of the deadline for amendments to pleadings, the proposed amendment is evaluated under Rule 15(a)’s more lenient standard. Plaintiffs filed their motion to amend on the date of the deadline for amendments to pleadings, February 17, 2015. While earlier would have been better, the filing of ...