Opinion
No. 00-2354-JAR
March 11, 2002
MEMORANDUM AND ORDER
Pending before the Court is Plaintiffs' Motion for Leave to File Amended Complaint Out of Time (doc. 177). Defendant City of Overland Park opposes the Motion, arguing Plaintiffs lack good cause to amend their Complaint out of time and that Defendants would be severely prejudiced if the Court permits the requested amendments.
The Court will deny the Motion on the basis that it is untimely. The Scheduling Order deadline for filing motions to amend was February 16, 2001. Plaintiffs did not file their Motion to Amend until February 6, 2002, almost twelve months after the deadline.
Relevant Procedural Background
The original Complaint in this lawsuit was filed on August 2, 2000. On January 17, 2001, after receiving the report of Parties' Planning Meeting, the Court entered a Scheduling Order that incorporated the parties' joint proposal to set February 16, 2001 as the deadline for any motion to amend the pleadings. See January 17, 2001 Scheduling Order (doc. 15); January 3, 2001 Report of Parties' Planning Meeting (doc. 13).
On February 6, 2002, Plaintiffs filed a motion for leave to amend their Complaint in the following manner: (1) eliminate reference to John Doe defendants; (2) dismiss their 42 U.S.C. § 1985 conspiracy claim; (3) add a claim for discrimination on the basis of disability pursuant to 42 U.S.C. § 12101 et seq. ("ADA"); and (4) revise their 42 U.S.C. § 1983 civil rights claim to include a claim for violation of the substantive due process clause.
Discussion
Rule 15 of the Federal Rules of Civil Procedure allows one amendment of the pleadings, before a responsive pleading is served or within twenty days after service. Subsequent amendments are allowed by leave of court or by written consent of an adverse party. Fed.R.Civ.P. 15(a). Subsequent amendments should be "freely given when justice so requires." Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991). "The decision to grant leave to amend a complaint, after the permissive period, is within the trial court's discretion, Fed.R.Civ.P. 15(a), and will not be disturbed absent an abuse of that discretion." Id. The district court should deny leave to amend only when it finds "undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
Notably, "[u]ntimeliness in itself can be a sufficient reason to deny leave to amend, particularly when the movant provides no adequate explanation for the delay." Panis v. Mission Hills Bank, 60 F.3d 1486, 1495 (10th Cir. 1995). In addition, if the motion is filed after the Scheduling Order deadline, as here, the moving party must show good cause for allowing the amendment out of time. SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518 (10th Cir. 1990). To establish good cause, the moving party must show that the deadline "could not have been met with diligence." Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan. 1993).
In support of their request to amend, Plaintiffs advance two seemingly contradictory arguments: first, that leave to amend is necessary in order "to reflect evidence uncovered during the past month of discovery" and second, that they do not seek to add a cause of action based on newly discovered evidence, but merely "seek to separate previously identified statutory claims into two different causes of action." Plaintiffs' Memorandum at pp. 2-3 (doc. 178). The Court is unpersuaded by either of these arguments.
More specifically, Plaintiffs make the following argument on page two of their pleading: "Plaintiffs seek leave to file an amended complaint to reflect evidence uncovered during the past month of discovery." Just three paragraphs later, Plaintiffs make the following argument:
In Dehand v. Wal-Mart Stores, Inc., 904 F. Supp. 1218 (D.Kan. 1995), the court permitted a plaintiff to add a cause of action based on newly discovered evidence. In this case, plaintiffs seek amendments to the complaint that do even less than that. They seek to dismiss unnamed defendants and one cause of action, and they seek to separate previously identified statutory claims into different causes of action.
Plaintiffs' Memorandum at pp. 2-3 (doc. 178).
As a preliminary matter, conspicuously missing from Plaintiffs' first argument is an explanation as to why Plaintiffs waited until twelve months after the amendment deadline before moving to add an ADA claim or revise their Section 1983 claim when Plaintiffs readily concede the factual basis for such claims were included in the original Complaint. See Plaintiffs' Reply at p. 2 (doc. 202) (arguing that "the original complaint in this case alleged a violation of the ADA" and "the original complaint likewise states a claim for violation of 42 U.S.C. § 1983.").
Moreover, Plaintiffs present no specific evidence to support their second argument that the factual basis for the proposed amendments were only recently discovered in the past month. That facts supporting the amendments were included in the original Complaint — as repeatedly argued by Plaintiffs in their Reply brief — discredits Plaintiffs' conclusory assertions to the contrary.
Based on this discussion, the Court finds Plaintiffs have failed to show the amendment "deadline could not have been met with due diligence"; thus, Plaintiffs have failed to show good cause for not meeting the amendment deadline. See Denmon v. Runyon, 151 F.R.D. at 407. Plaintiffs' Motion for Leave to File Amended Complaint Out of Time (doc. 177) is denied.
IT IS SO ORDERED.