Opinion
Case No. 3:03CV7612.
February 3, 2005
ORDER
This is a civil rights case for excessive use of police force during an allegedly unlawful arrest. Plaintiff asserts violations of his civil rights under 42 U.S.C. § 1983, along with state law claims for assault and battery, false arrest, intentional/reckless infliction of emotional distress, and negligence. One of the defendant police officers, Brian Rankin, has filed a counterclaim alleging assault, negligent infliction of emotional distress, and loss of consortium.
Pending is Rankin's motion for leave to file an amended counterclaim under Fed.R.Civ.P. 15(a). Auto-Owners Insurance Company (Auto-Owners), which issued a home owners policy to plaintiff Kaylor, and which has been granted leave to intervene, opposes the motion for leave to amend. Auto-Owners argues that Rankin's motion is untimely under Fed.R.Civ.P. 16(b).
For the following reasons, Rankin's motion for leave to amend shall be granted.
BACKGROUND
In the late afternoon of April 13, 2003, while on patrol, Rankin noticed a truck blocking the alleyway behind Fremont Street in Elmore, Ohio. Rankin claims he waited for someone to move the vehicle before he issued a citation for obstruction of a public roadway. Kaylor asserts that he and several others were unloading the truck that day. While Rankin issued the citation, Kaylor appeared outside the police cruiser and a verbal confrontation ensued. A call for backup was made, and shortly thereafter Officer Brian Radde of the Clay Township Police Department arrived. A physical confrontation ensued, and Kaylor was arrested.
On October 20, 2003, Kaylor filed this action against officers Rankin and Radde, their police chiefs, the Township of Clay, and the Village of Elmore. A case management conference was held on February 9, 2004. The court set April 30, 2004, as the cut-off date for adding parties and amending the pleadings. The parties were to complete discovery pertaining to summary judgment by September 1, 2004, and to complete all other discovery by December 30, 2004.
On April 14, 2004, Rankin timely filed a counterclaim against Kaylor for assault, negligent infliction of emotional distress, and loss of consortium. On November 19, 2004, Auto-Owners, Kaylor's insurer, filed a motion to intervene as a plaintiff through a complaint for declaratory judgment. I granted Auto-Owners' motion to intervene on December 17, 2005, and Auto-Owners, claiming that it was not liable for the intentional tort allegedly committed by Kaylor, filed a motion for summary judgment the same day.
DISCUSSION
Federal Rule of Civil Procedure 15(a) provides in part: "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." (emphasis added). This rule is to be construed liberally, with a presumption in favor of the moving party. Forman v. Davis, 371 U.S. 178, 182 (1962). A court may consider whether there is undue delay in filing an amendment, whether bad faith or dilatory motives are present, a party's failure to cure deficiencies through previous amendments, and undue prejudice to the opposing party if the motion for leave to amend is granted. Taylor v. Nat'l Group of Cos., Inc., 765 F. Supp. 411, 416 (N.D. Ohio 1990). Ultimately, however, granting a motion for leave to amend under Rule 15(a) is within the court's discretion and depends on the "particular circumstances involved." Id.
The 1983 Amendments to the Federal Rules of Civil Procedure created overlap between the "freely given" standard of Fed.R.Civ.P. 15(a) and Fed.R.Civ.P. 16(b)'s scheduling order deadline for amending pleadings. Rule 16(b) states in part: "the district judge . . . shall, after receiving the report from the parties under Rule 26(f) . . . enter a scheduling order that limits the time . . . to join other parties and to amend the pleadings. . . ." Fed.R.Civ.P. 16(b). After a scheduling order is entered on the record, "the court may modify [the order] on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension." Fed.R.Civ.P. 16(b), 1983 Advisory Committee's Notes (emphasis added).
The Sixth Circuit dealt directly with this overlap of standards in Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003). The court held that when a scheduling order's deadline passes, a party must first show good cause under Rule 16(b) before a court will consider whether amendment is proper under Rule 15(a). Leary, 349 F.3d.at 909. A party's diligence in meeting the case management order's deadline is the primary measure of good cause found in Fed.R.Civ.P. 16(b). Leary, 349 F.3d at 906. Possible prejudice to a defendant is also relevant, but it is not an "express component" of the standard. Id.
In this case, the case management conference order established April 30, 2004, as the cut-off date for amending the pleadings. Rankin filed his motion for leave to amend nearly eight months after the deadline. To meet his burden of showing good cause for his delay, Rankin states that the factual basis for a negligence claim only became apparent during discovery.
1. Good Cause
Good cause is primarily measured by a party's due diligence in attempting to meet the case management conference deadlines. Id. at 906. Rankin maintains that a cause of action for negligence was not apparent until after discovery was completed during the late Summer and early Fall of 2004. At the October 25, 2004 pretrial, the parties notified this court that discovery was ongoing, and most importantly, that an analysis of the Elmore Police video tape had not been completed. Rankin insists that a supportable negligence claim against Kaylor became apparent only after late summer depositions had been taken and review of the police video tape had been completed.
In response to Rankin's claim of ignorance about the viability of negligence as the basis for his personal injury claim, Auto-Owners points out that Rankin's original counterclaim included a claim for negligent infliction of emotional distress. If Rankin had sufficient reason to believe that one actionable negligence count existed prior to the management conference deadline, Auto-Owners argues, all negligence counts should have been added at that time. This argument is not persuasive.
According to Rankin, the facts known to him as of April 2004 supported claims for 1) assault to recover for his physical injuries, and 2) negligent infliction of emotional distress for emotional injuries caused by Kaylor's obstruction and intimidation before the physical encounter. He argues that only the depositions and analysis of the video tape provided a basis for a negligence claim for his personal injuries. Information and understanding developed during the course of discovery could logically have led to the conclusion that those injuries resulted from negligence, rather than from an intent to cause harm.
Auto-Owners argues that even if good cause exists, leave to amend should be denied because it will be prejudiced because its declaratory judgment complaint and motion for summary judgment are based on the assertion of an intentional tort in Rankin's original counter-complaint. While possible prejudice to a defendant is relevant, it is not an "express component" of the good cause standard. Id. Here I am not persuaded that allowing the amendment causes undue prejudice.
2. Freely Given
Auto-Owners, citing Leary, argues that Fed.R.Civ.P. 15(a) does not apply to a motion for leave to amend filed after the deadline set in the case management order. Auto-Owners, however, fails to recognize that Leary still applies Fed.R.Civ.P. 15(a) to these situations, but only after good cause has been established under Fed.R.Civ.P. 16(b).
On a finding of good cause, leave to amend should be "freely given where justice so requires." Leary, 349 F.3d at 909. This rule is to be construed liberally, with a presumption in favor of the moving party. Forman, 371 U.S. at 182. A court may, however, consider undue delay in filing an amendment, bad faith or dilatory motives, failure to cure deficiencies through previous amendments, and undue prejudice. Taylor, 765 F. Supp. at 416.
Auto-Owners fails to provide this court with any evidence of bad faith or dilatory motive on Rankin's part or any evidence of undue delay in Rankin's filing of the motion for leave to amend. Furthermore, as stated above, Auto-Owners' claim of undue prejudice is insufficient. Taylor, 765 F. Supp. at 416.
CONCLUSION
In light of the foregoing, it isORDERED THAT defendant's motion for leave to file an amended counterclaim be, and the same hereby is, granted.
So ordered.