Summary
applying Shelton criteria to motion to quash deposition of in-house counsel for defendant
Summary of this case from Ed Tobergte Associates Co. v. Russell Brands, LLCOpinion
No. 01-2106-JWL.
May 17, 2002
MEMORANDUM AND ORDER
At the May 15, 2002 conference, the Court granted Plaintiff's Motion for Leave of Court to File Second Amended Complaint Out of Time (doc. 72). This Memorandum and Order will set forth the Court's reasoning in granting the motion.
I. Nature of the Matter Before the Court
This is a products liability action in which Plaintiff alleges that he suffered severe burns while wearing a flannel shirt manufactured purchased from Defendant. Plaintiff asserts claims for strict liability, negligence, breach of implied and express warranty, and violation of the Kansas Consumer Protection Act. Plaintiff now seeks leave to amend the Complaint to add claims that Defendants was involved in a joint venture with non-party Consumer Testing Lab (CTL) for purposes of testing the flannel shirt, non-party Textiles Nacionales, S.A. (TNSA), for purposes of weaving the fabric found in the shirt, and non-party Farris Fashions, Inc. (FFI), for purposes of manufacturing and assembling the shirt. He also seeks leave to amend to add claims that CTL, TNSA, and FFI were operating as agents of Defendant.
The deadline for filing motions to amend was March 1, 2002. See doc. 34. Plaintiff asserts that it was not until a few days following the March 1 deadline that he gained, through deposition testimony and documents, the information that gives rise to his joint venture and agency claims.
II. Standard for Deciding Motions to Amend
Rule 15 of the Federal Rules of Civil Procedure allows one amendment of the complaint before a responsive pleading is served or within twenty days after service of the complaint. Fed.R.Civ.P. 15(a). Subsequent amendments are only allowed by leave of court or by written consent of an adverse party and should be "freely given when justice so requires." Id. The decision to grant leave to amend a complaint, after the permissive period, is within the trial court's discretion and will not be disturbed absent an abuse of that discretion. Woolsey v. Marion Labs., Inc. 934 F.2d 1452, 1462 (10th Cir. 1991). The court may deny leave to amend 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).
A. Undue Delay
Defendant argues that Plaintiff unduly delayed in filing his motion, and that had Plaintiff been more dilatory in conducting discovery, Plaintiff would have learned of the alleged information giving rise to his joint venture and agency claims in a timely fashion.
It is well established that "[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, N.A., 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).
The Court finds Plaintiff has established that he could not have met the March 1 amendment deadline, even with diligence. Various documents regarding CTL's testing and Defendant's relationship with FFI were not produced until either shortly before March 1 or on March 5 and 6, 2002. In addition, Plaintiff was not able to schedule the deposition of CTL and FFI's corporate representatives until March 8 and 9, 2002. The motion to amend was filed shortly thereafter. The Court will therefore decline to deny leave to amend on the basis of undue delay.
B. Prejudice
Defendant also urges the Court to deny Plaintiff leave to amend because, at this stage in the lawsuit, amendment would be highly prejudicial to Defendant. The Court is not persuaded by Defendant's rather conclusory arguments regarding prejudice. At the May 15, 2002 conference, the Court extended discovery based on the fact that Plaintiff had only recently learned of the alleged facts giving rise to his joint venture and agency claims. The Court also continued the trial and related deadlines. Defendant should have adequate time to conduct any additional discovery it seeks regarding Plaintiff's new allegations.
C. Futililty
Finally, Defendant urges the Court to deny the motion to amend on the basis that allowing Plaintiff to assert his joint venture and agency allegations would be futile. Defendant contends that Plaintiff's new claims fail to state a claim upon which relief can be granted.
A court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or if it otherwise fails to state a claim. Lyle v. Commodity Credit Corp., 898 F. Supp. 808, 810 (D.Kan. 1995) (citing Ketchum v. Cruz, 961 F.2d 916, 220 (10th Cir. 1992)). Accordingly, this Court must analyze Plaintiff's proposed amendments as if they were before the Court on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Dismissal of a claim under Rule 12(b)(6) is appropriate only when it appears beyond a doubt that a plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Maher v. Durango Metals, Inc. 144 F.3d 1302, 1304 (10th Cir. 1998). Thus, the issue before this Court is not whether Plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his proposed claim. See Baumann v. Hall, No. 98-2126-JWL, 1998 WL 513008, *1 (D.Kan. July 15, 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct 1683, 40 L.Ed.2d (1974)).
The Court cannot say, based on the allegations pled in the proposed Second Amended Complaint, that it appears beyond a doubt that Plaintiff can prove no facts in support of his agency and joint venture claims. Defendant may very well be able to obtain summary judgment on these new claims; however, it would be premature for the Court to dismiss the claims at this point in time.
III. Conclusion
For the reasons discussed above, the Court does not find that Plaintiff has unduly delayed in filing his motion to amend, that Defendant will be unduly prejudiced if the amendment is allowed, or that amendment would be futile. The Court therefore grants Plaintiff's Motion to Amend (doc. 72). Plaintiff shall follow the procedure and time frame set forth in the Court's Order of May 17, 2002 for filing and serving his Second Amended Complaint.
IT IS SO ORDERED.