Opinion
Case No. 3:20-cv-00378-AC
09-01-2020
KELSEY MILLER NEE LEINBACH, Plaintiff, v. SAWYER AND SONS CONSTRUCTION LLC, a Washington limited liability company, and JEFFREY JAY BORST, an individual, Defendants.
FINDINGS AND RECOMMENDATION :
Presently before the court is Plaintiff Kelsey Miller Nee Leinbach's ("Miller") Motion to Modify the Scheduling Order and Motion for Leave to Amend the Complaint (Motions, ECF No. 16). For the following reasons, the court recommends that the motions be granted.
Background
Miller filed this action against Defendants Sawyer and Sons Construction, LLC ("Sawyer and Sons") and Jeffrey Jay Borst ("Borst") (collectively "Defendants"), in March 2020. (Compl., ECF No. 1.) Miller alleges that on Friday April 3, 2018, she was driving a gray sedan in Oregon City, Clackamas County, and was stopped at a traffic light at the intersection of Highway 213 and Redland Road. (Id. ¶¶ 7, 8.) Miller contends that when stopped at the traffic light, she was struck from the rear by a truck driven by Borst that was owned by Sawyer and Sons. (Id. ¶¶ 3, 7, 8.) At the time of the accident, Borst was employed by Sawyer and Sons and was acting in the scope of his employment. (Id. ¶ 8.) Miller brings a single claim of negligence.
On April 24, 2020, at a scheduling conference, the court set the deadline to amend pleadings as June 22, 2020, and the deadline for close of discovery as August 31, 2020. (Sched. Order, ECF No. 12.) Expert discovery closes on September 30, 2020, and dispositive motions are due October 26, 2020. (Id.) The court has deferred setting pretrial deadlines and trial date at this time. (Id.)
On July 20, 2020, the court conducted a telephonic discovery hearing, and ordered defense counsel to produce a recorded statement of Borst to plaintiff's counsel by August 7, 2020, discussed the instant motions, and set a briefing schedule. On July 27, 2020, Miller filed the instant motions and they are now fully briefed. (Mots., ECF No. 16.) Miller seeks to amend her Complaint in two primary ways: (1) to increase the amount of prayer; and (2) to add an additional ground for liability.
Discussion
I. Motion to Modify Scheduling Order
A. Legal Standard
The Federal Rules of Civil Procedure declare that a scheduling order "may be modified only for good cause and with the judge's consent." FED. R. CIV. P. 16(b)(4). Further, Local Rule of Civil Procedure("LR") 16.3 mandates that "objections to any court imposed deadline must be raised by motion and must: (1) Show good cause why the deadlines should be modified[;] (2) Show effective prior use of time; (3) Recommend a new date for the deadline in question [; and] (4) Show the impact of the proposed extension upon other existing deadlines, settings, or schedules." Barringer v. Clackamas Cty., Case No. 3:09-cv-00068-AC, 2012 WL 1574817, *1 (quoting LR 16.3 and Lyon v. Chase Bank USA, N.A., Civ. No. 07-1779-AC, 2009 WL 3047240, at *1 (D. Or. Sept. 22, 2009)). The primary factor in determining whether good cause exists to modify a deadline is whether the party seeking amendment was diligent in pursuing the amendment. Barringer, 2012 WL 1574817, at *1. If the party who seeks modification of the scheduling order did not act diligently in doing so, "the inquiry should end," and the motion should be denied. Id. (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (1992)).
B. Analysis
Defendant asks the court to deny Miller's request to modify the scheduling order because Miller has not been diligent in using her time effectively. Defendant argues that Miller has not adequately explained why she needs to increase her claim for future economic damages from $150,000 to $1,000,000 and double her damages prayer for future non-economic damages from $500,000 to $1,000,000. According to Defendant, Plaintiff has not detailed any new information that she learned through discovery to explain why she could not have amended the Complaint prior to June 22, 2020 deadline.
Miller responds that that she has effectively used her time, that she has pressed Defendants for discovery, and that she has diligently pursued her action through the coronavirus pandemic, which has slowed her litigation efforts. Miller contends that it was not until completion of depositions that she learned of the potential second cause of action.
As discussed below, the court concludes that Miller has provided good cause for amending the Complaint and has been reasonably diligent in in seeking to do so. Although Miller has not explained why she delayed seeking to increase the amount of the prayer, the court is satisfied that she has explained the reason for the delay in adding the additional ground for liability. Accordingly, the court recommends that Miller's Motion to Modify the Scheduling Order be granted.
II. Motion for Leave to Amend
A. Legal Standard
After a responsive pleading has been filed, leave to amend a complaint may only occur by leave of the court or consent of the parties. FED. R. CIV. P. 15(a)(2). Leave to amend is liberally given, "when justice so requires." Id. "When considering whether to grant leave to amend, a district court should consider several factors including undue delay, the movant's bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). "Of the Foman factors, prejudice to the opposing party carries the most weight." Id. (citing Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)).
B. Analysis
Defendants oppose granting Miller's Motion for Leave to Amend because Miller has failed to explain why the proposed significant increase in her future economic and noneconomic damages at this stage. Defendants contend that Miller has not identified any new information she learned through discovery or investigation to explain the $1,350,000 increase in her prayer. Defendants contend that Miller knew or should have known the damages amount at the time she filed this action, nearly two years post-accident. Defendants argue that they will be prejudiced because they need to defend against the increase in damages in excess of their liability coverage.
Miller argues she learned through discovery that Defendants failed to retain copies of the Daily Vehicle Inspection Reports and cannot otherwise provide evidence of the vehicle's maintenance on the day of the collision. Miller contends that because Defendants do not contest her second ground for amending the Complaint, the motion to should be granted. Miller also argues that her increased prayer is the result of further "scrutiny, revelations, and discovery" about the nature of her injuries.
The Foman factors weigh heavily in favor of granting leave to amend. As Miller correctly highlights, Defendants do not challenge Miller's motive or that they are prejudiced by adding the second ground for liability. It appears that Miller learned of this basis for liability during discovery and moved fairly swiftly to amend. Miller circulated her First Amended Complaint on July 16, 2020, shortly after depositions were completed. Thus, this reason alone supports granting the motion the motion for leave to amend. The court is not convinced that Defendants will be prejudiced by permitting Miller leave to amend to increase her damages prayer. Discovery has not yet closed, expert discovery closes September 30, 2020, and there is no trial date set. And, there have been no prior attempts to cure deficiencies in the pleadings, and the court finds this factor irrelevant. While the court agrees that Miller has not articulated reasons for the delay in increasing the prayer amount in great detail, Defendants fail to identify a dilatory or bad faith motive in her failure to amend her damages amount earlier, and none is apparent from the record. Nevertheless, the court is mindful of the August 31, 2020 close of discovery deadline. The court will entertain requests from the parties to extend that deadline as necessary to address the factual basis for Miller's increase damages. This flexibility should alleviate any potential prejudice to Defendants.
In summary, the court concludes that Miller has sufficiently demonstrated that justice requires allowing her to amend her Complaint pursuant to Rule 15(a)(2).
Conclusion
Based on the foregoing, the court recommends that Miller's Motions to Modify the Scheduling Order and For Leave to Amend the Complaint (ECF No. 16) be GRANTED. Should the district judge adopt these findings, the court recommends that Miller file the proposed First Amended Complaint within seven days.
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 1st day of September, 2020.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge