Summary
In Curol, this Court reconsidered and then rescinded its order permitting the plaintiff to amend his complaint after the deadline where the plaintiff "made no showing that, prior to the expiration of the deadline, he was diligent in seeking discovery and that, despite such diligence, the amendment deadline could not reasonably have been met."
Summary of this case from Boyd v. Boeing Co.Opinion
Civil Action No. 03-3126, Section: I/4.
November 16, 2004
ORDER AND REASONS
Before the Court is a motion, filed on behalf of defendant, AOP Industries, Inc. ("AOP"), to dismiss plaintiff's first amended complaint or, alternatively, to vacate this Court's September 7, 2004, order granting plaintiff leave to file an amended complaint. Plaintiff, Roger Curol, opposes the motion. After consideration of the law, the facts, and the legal memoranda submitted by the parties, AOP's motion to vacate the September 7, 2004, order is GRANTED, the September 7, 2004, order is VACATED, and plaintiff's motion for leave to file the first amended complaint is DENIED.
Rec. Doc. No. 19.
Rec. Doc. No. 17.
BACKGROUND
On November 6, 2003, plaintiff filed a complaint in this action alleging a maritime personal injury claim against defendant, Energy Resources Technology, Inc. ("ERT"). A preliminary scheduling conference was held on January 22, 2004. On January 23, 2004, this Court entered a scheduling order which provided in pertinent part that "[a]mendments to pleadings . . . shall be filed no later than February 23, 2004." Additionally, this Court established deadlines for, inter alia, discovery, the exchange of any expert reports, and filing of pretrial motions. A final pretrial conference is scheduled on January 28, 2005, and trial is set to commence on February 22, 2005. The parties were specifically informed that "[d]eadlines, cut-off dates, or other limits fixed herein may only be extended by the Court upon timely motion . . . and upon a showing of good cause."On September 7, 2004, plaintiff filed an ex parte motion for leave to file an amended complaint adding AOP as a defendant. The amended complaint alleged that AOP's negligence and failure to manufacture a reasonably safe ball valve proximately caused plaintiff's injury. In plaintiff's motion for leave to amend, plaintiff represented to the Court that granting the motion would not delay this proceeding. Plaintiff did not alert this Court that the deadline in this Court's scheduling order for filing amendments to the pleadings had passed. This Court granted plaintiff's motion and the amended complaint was filed on September 8, 2004. On September 14, 2004, plaintiff's counsel mailed a copy of the amended complaint with a waiver of service of summons form to AOP's registered agent for service of process. On October 5, 2004, AOP returned the waiver of service of summons.
See Rec. Doc. Nos. 17 18.
See Rec. Doc. No. 18.
Rec. Doc. No. 17.
On October 25, 2004, AOP filed the instant motion to dismiss or, alternatively, to vacate this Court's order permitting plaintiff to file the amended complaint. AOP argues that in light of its late joinder in this action and this Court's impending scheduling deadlines, AOP does not have sufficient time to investigate and defend against the claims alleged in the amended complaint, nor can it reasonably comply with the Court's current scheduling order. AOP asserts that it would be prejudiced if the Court permitted plaintiff to join AOP in this action and, accordingly, it seeks dismissal of plaintiff's complaint. In the alternative, AOP seeks an order vacating this Court's order granting plaintiff leave to file the amended complaint. In the further alternative, AOP argues that should the Court decide to permit plaintiff's amended complaint to stand, this Court should continue the trial of this action and adjust all scheduling deadlines accordingly.
Plaintiff responds by arguing that this Court properly permitted the amendment of the pleadings pursuant to Fed.R.Civ.P. 15(a), that any violation of the scheduling order was only a "technical" violation and, as such, should be excused, that AOP has not demonstrated any prejudice, and that plaintiff's claim should not be dismissed because plaintiff's late-filed motion for leave was only a minor "technical" violation of a procedural rule.
LAW AND ANALYSIS
Orders granting or denying motions to add new parties are interlocutory orders. Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981). As long as a district court has jurisdiction over a case, the court "possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient." Id. Upon filing the motion for leave to file the amended complaint, plaintiff failed to notify the Court that the deadline for filing amendments had expired. Furthermore, plaintiff affirmatively represented to the Court that the motion was unopposed by the parties to the action and that granting the motion would not delay these proceedings. Because plaintiff's representations did not alert the Court to all of the relevant circumstances present in this action, this Court will exercise its inherent power to rescind the September 7, 2004, order granting plaintiff's motion for leave to amend and reconsider the motion in light of the governing legal standard.
Plaintiff states that it was unnecessary for him to alert the Court to the fact that the motion for leave to amend was untimely because this Court could have ascertained the deadlines by checking the docket sheet. Plaintiff's argument in this regard is particularly troubling. It is not the obligation of this Court to police a litigant's compliance with this Court's orders. Absent any indication to the contrary, this Court ordinarily presumes that litigants are, in fact, complying with this Court's orders. See Chilcutt v. United States, 4 F.3d 1313, 1324 (5th Cir. 1993) ("Attorneys are professionals. They are, in every respect, officers of the court, and officers of the court must comply with each court order when it is issued — not after two or three warnings to do so and not after lesser sanctions are imposed."). To the extent that plaintiff suggests that this Court is now bound by the order granting plaintiff's untimely motion for leave to amend, plaintiff is simply incorrect. See Melancon, 659 F.2d at 553.
Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend the pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Plaintiff argues that his motion for leave to file an amended complaint was properly granted pursuant to the Rule 15 standard. However, the Fifth Circuit has explicitly held that Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired. Southwestern Bell Telephone Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003); S W Enter., L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003).
Rule 16(b) provides that a scheduling order "shall not be modified except upon a showing of good cause and by leave of the district judge." The good cause requirement for a modification of a scheduling deadline requires the "party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension." S W Enter., 315 F.3d at 535 (citation and internal quotation omitted); STMicroelectronics, Inc. v. Motorola, Inc., 307 F. Supp.2d 845, 851 (E.D. Tex. 2004) (noting that "the good cause showing unambiguously centers on [the mover's] diligence"). Only when the movant demonstrates good cause to modify a scheduling order "will the more liberal standard of Rule 15(a) apply to the district court's decision to grant or deny leave." S W Enter., 315 F.3d at 536.
This Court issued a scheduling order that specifically provided that amendments to pleadings "shall be filed no later than February 23, 2004." Plaintiff filed the motion for leave to amend on September 7, 2004, over six months after the deadline for filing such motions. Because the deadline for filing amendments to pleadings had expired, the more stringent requirements of Rule 16(b) apply in this case and plaintiff must demonstrate good cause in order to obtain leave to amend the complaint.
Rec. Doc. No. 5, at 2.
Plaintiff has not presented his arguments in opposition to defendant's motion within the rubric of Rule 16(b). Nevertheless, the Court will address plaintiff's arguments to the extent that they are relevant to this Court's determination of good cause.
Trial courts have broad discretion to preserve the integrity and purpose of its pretrial orders "which, toward the end of court efficiency, is to expedite pretrial procedure." Id. at 535 (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979)) (other citation omitted). The Fifth Circuit has set forth a four-part test governing the exercise of this Court's discretion in determining whether a movant has established good cause. See id. at 536. The 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.; see also Southwestern Bell, 346 F.3d at 546.
With respect to the first factor, a party's failure to timely move for leave to amend due to inadvertence "is tantamount to no explanation at all." S W Enter., 315 F.3d at 536. The Court finds that plaintiff's explanation for his failure to timely move for leave to amend is implausible and insufficient. Plaintiff asserts that until the depositions of Walter Steele and Wayne Jackson on August 18, 2004, plaintiff was unaware that AOP was the manufacturer of the ball valve that allegedly was defective. Plaintiff argues that he could not fully understand the nature of his case until these "key" witnesses were deposed and that, therefore, AOP is a newly discovered party. However, in plaintiff's complaint, filed ten months prior to the motion for leave to amend the complaint, plaintiff alleged:
On the incident date, while Mr. Curol and a co-employee were in the process of working on a glycol pump, it is believed, and therefore alleged, that a failure occurred at a 1" SS AOP two piece ball valve, creating a brush fire which caused Mr. Curol to suffer severe and debilitating injuries, including burns.
Rec. Doc. No. 1, ¶ VIII (emphasis supplied).
Given this allegation, the Court finds plaintiff's claim of ignorance unpersuasive and unbelievable. Plaintiff's belief that the ball valve that caused plaintiff's injury was an "AOP two piece ball valve" belies plaintiff's contention that he had no knowledge that AOP manufactured the ball valve. See Southwestern Bell, 346 F.3d at 547 ("EPCWID was aware of the contract that forms the basis of its proposed amendment months in advance of the deadline and does not offer a satisfactory explanation for its delay in seeking leave to amend."). Moreover, even assuming plaintiff may have not had evidence to confirm the factual allegation in the complaint, plaintiff's failure to timely undertake discovery to support the allegation is unjustifiable. See Royal Ins. Co. v. Schubert Marine Sales, 2004 WL 21664701, at *2-3 (E.D. La. July 11, 2003)) (noting that although the movants expert may not have become aware of information that would support the claim sought to be made by amendment, "there is no justifiable reason for this information not to have been obtained far earlier").
Plaintiff suggests that absent the factual evidence obtained in the depositions, Rule 11 of the Federal Rules of Civil Procedure precluded him from alleging a claim against AOP. Rule 11 provides that an attorney signing a pleading is representing to the Court that "the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed.R.Civ.P. 11(b)(3) (emphasis supplied). Plaintiff clearly alleged in the original complaint that he believed that the ball valve was an AOP valve and that he believed that the failure of that valve caused his injuries. Therefore, plaintiff's attempt to argue that it could not allege any claim against AOP far earlier is unpersuasive. Moreover, plaintiff's Rule 11 argument wholly fails to address why, in the exercise of diligence, he was unable to comply with the amendment deadline. Therefore, plaintiff's Rule 11 argument does not support a finding of good cause.
Plaintiff has made no showing that, prior to the expiration of the deadline, he was diligent in seeking discovery and that, despite such diligence, the amendment deadline could not reasonably have been met. "[A] party who ignores any case-management deadline does so at his own peril." Rushing v. Kansas City Southern Rwy. Co., 185 F.3d 496, 508 (5th Cir. 1999). Counsel's inadvertence does not establish good cause. In light of plaintiff's factual allegation in the original complaint and the apparent lack of plaintiff's diligence in developing his case, the Court finds that plaintiff's explanation for his inability to comply with the deadline for amending the pleadings is insufficient to favor a finding of good cause.
With respect to the third factor, the Court finds that AOP would be substantially prejudiced by plaintiff's untimely amendment. The deadline for defendants to deliver all expert reports to plaintiff is November 29, 2004, the discovery deadline is December 29, 2004, and the parties must file all dispositive pretrial motions in sufficient time to permit hearing on January 5, 2004. A final pretrial conference is set for January 28, 2005 and trial will commence on February 22, 2004. Plaintiff has alleged both a negligence claim and a products liability claim against AOP. With respect to the product liability claim, plaintiff's amended complaint seeks recovery on four theories of liability, including a design defect claim. Moreover, the depositions of several witnesses whose testimony plaintiff characterizes as "key" to his claim have already been completed. Under these circumstances, AOP would be substantially prejudiced by not having sufficient time to properly investigate and defend against plaintiff's claims.
The fourth factor directs the court to assess whether a continuance may cure any prejudice. The Fifth Circuit has noted that although prejudice to a party "could be ameliorated by a continuance . . . delaying rulings or trial never is ideal." Rushing, 185 F.3d at 509 (5th Cir. 1999). Although a continuance of the interim pretrial discovery and motion deadlines may reduce some prejudice to AOP, this Court is not convinced that AOP could adequately defend plaintiff's untimely product liability claims absent the entry of a new scheduling order including a substantial continuance of the trial date. Without doubt, certain witnesses would have to be redeposed, experts obtained, and additional discovery undertaken by the parties. Additionally, such a continuance would result in additional delay and expense for the current defendant. Furthermore, "a continuance would not deter future dilatory behavior, nor serve to enforce . . . court imposed scheduling orders." Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990); see also Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 573 (5th Cir. 1996) ("While a continuance would have given [the non-offending party] more time to review the late disclosures, such a measure would neither punish [the offending party] for its conduct nor deter similar behavior in the future."). In view of this Court's inherent power to control its docket by "`refusing to give ineffective litigants a second chance to develop their case,'" the Court finds that the fourth factor weighs against permitting plaintiff's amendment. S W Enter., 315 F.3d at 537 (quoting Reliance Ins. Co. v. Louisiana Land and Exploration Co., 110 F.3d 253, 258 (5th cir. 1997)).
With respect to the second factor, i.e., the importance of the plaintiff's proposed amendment, plaintiff argues that AOP is a key and critical defendant in this action because, as the alleged manufacturer of the ball valve, AOP could be ultimately liable for plaintiff's injuries. The Fifth Circuit has held that even when certain evidence is undeniably important, "[t]his importance, however, `cannot singularly override the enforcement of . . . scheduling orders.'" Rushing, 185 F.3d at 509 (quoting Geiserman, 893 F.2d at 792). Furthermore, the claimed importance of adding AOP as a defendant only underscores the need for plaintiff to have timely conducted discovery and to have timely moved to amend the complaint and bring AOP into this action. See Geiserman, 893 F.2d at 792.
Upon consideration of the factors governing this Court's determination of good cause, the Court concludes that plaintiff has failed to establish good cause for failing to comply with this Court's scheduling order. Therefore, plaintiff's proposed first amended complaint adding AOP as a defendant will not be permitted. Consequently, this Court need not reach AOP's alternative motion to dismiss such complaint.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that AOP's motion to vacate the September 7, 2004, order is GRANTED, the September 7, 2004, order is VACATED, and plaintiff's motion for leave to file the first amended complaint is DENIED. IT IS FURTHER ORDERED that the Clerk of Court shall administratively terminate AOP Industries, Inc. as a defendant in this action.