Opinion
Case No. C2-99-1182 C2-99-1250.
September 2, 2004
ORDER
These consolidated cases are currently before the Court to consider plaintiffs' motion for leave to amend the complaint. The motion is opposed only in part. Understandably, defendants do not object to the plaintiffs' desire to eliminate certain allegations from the complaint or to "harmonize" certain allegations which currently differ in the complaints filed by the intervenors and the original plaintiffs. However, they object to the proposal to add a number of additional projects to the scope of this lawsuit. For the following reasons, the Court agrees with defendants that it would not be in the interest of justice to permit those latter amendments. Consequently, the motion for leave to amend will be granted in part and denied in part, as follows.
I.
From the outset of this case, based upon the original pleadings and information exchanged during discovery, the parties have focused their litigation efforts on a finite number of modifications performed at the eleven power plants at issue over the last 20 years. According to plaintiffs, however, as early as September 30, 2002, the defendants were notified that the furnace wall replacement project at Muskingum Unit No. 3 might be added to the projects about which the parties were litigating. Almost a year later, defendants were notified that the replacement of the feed water heaters at Cardinal Unit No. 2 might also be added. In February of this year, plaintiffs proposed stipulations about several projects at the Amos plant which had not previously been considered to be part of the case. Five additional projects were identified on March 19, 2004, and, once certain records were made available in March of 2004, plaintiffs proposed to add more projects which occurred after the filing of the original complaint. Thus, technically, in order to include all of these projects, plaintiffs would need leave both to amend the complaint to include pre-1999 projects and to supplement the complaint to include the ones which occurred later. Plaintiffs have included an analysis of some or all of these projects in the expert reports which they have produced, but little or no discovery has been done with respect to the specific projects pending the Court's resolution of the instant motion.
These are not the only facts which are germane to the motion. In deciding whether to permit these amendments and supplements to the complaint, the Court must also take into account the history of this litigation, including the history of discovery, the parties' efforts to prepare, implement, and adhere to a case schedule, and the likely impact that such amendments and supplements would have on the existing schedule. Having been extensively involved in discussions about all of these matters, the Court is in a unique position to assess that impact, and, in the Court's view, that impact is dispositive of the plaintiffs' motion.
II.
Fed.R.Civ.P. 15(a) states that when a party is required to seek leave of court in order to file an amended pleading, "leave shall be freely given when justice so requires." The United States Court of Appeals for the Sixth Circuit has spoken extensively on this standard, relying upon the decisions of the United States Supreme Court in Foman v. Davis, 371 U.S. 178 (1962) and Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971), decisions which give substantial meaning to the "when justice so requires." In Foman, the Court indicated that the rule is to be interpreted liberally, and that in the absence of undue delay, bad faith, or dilatory motive on the part of the party proposing an amendment, leave should be granted. In Zenith Radio Corp., the Court indicated that mere delay, of itself, is not a reason to deny leave to amend, but delay coupled with demonstrable prejudice either to the interests of the opposing party or of the Court can justify such denial.
Expanding upon these decisions, the Court of Appeals has noted that:
[i]n determining what constitutes prejudice, the court considers whether the assertion of the new claim or defense would: require the opponent to expend significant additional resources to conduct discovery and prepare for trial; significantly delay the resolution of the dispute; or prevent the plaintiff from bringing a timely action in another jurisdiction.Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citing Tokio Marine Fire Insurance Co. v. Employers Insurance of Wausau, 786 F.2d 101, 103 (2d Cir. 1986)). See also Moore v. City of Paducah, 790 F.2d 557 (6th Cir. 1986); Tefft v. Seward, 689 F.2d 637 (6th Cir. 1982). Stated differently, deciding if any prejudice to the opposing party is "undue" requires the Court to focus on, among other things, whether an amendment at any stage of the litigation would make the case unduly complex and confusing, see Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986) (per curiam), and to ask if the defending party would have conducted the defense in a substantially different manner had the amendment been tendered previously.General Electric Co. v. Sargent and Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990); see also Davis v. Therm-O-Disc, Inc., 791 F. Supp. 693 (N.D. Ohio, 1992).
The Court of Appeals has also identified a number of additional factors which the District Court must take into account in determining whether to grant a motion for leave to file an amended pleading. They include whether there has been a repeated failure to cure deficiencies in the pleading, and whether the amendment itself would be an exercise in futility. Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th Cir. 1990);Head v. Jellico Housing Authority, 870 F.2d 1117 (6th Cir. 1989). The Court may also consider whether the matters contained in the amended complaint could have been advanced previously so that the disposition of the case would not have been disrupted by a later, untimely amendment. Id. It is with these standards in mind that the instant motion to amend will be decided.
III.
Plaintiffs' argument in favor of the amendments and supplements to the complaint consist of the following. They assert, first, that if the Court does not allow them to proceed as they request, additional litigation will be filed over these projects, leading to "piecemeal litigation" and inefficient use of the parties' and the Court's resources. Second, they assert that the original complaints contained language indicating that other unnamed projects might also be the subject of litigation, and that the defendants should have so anticipated. Third, they note that there is still a short period of time within which to complete discovery, and they assert that discovery about these projects could be accomplished in that timeframe. Fourth, they note that their experts have already addressed the nine pre-1999 projects, so that substantial progress has been made toward completing proceedings with respect to those projects. Fifth, they note that including these projects would not involve new legal theories and that the parties are well-prepared to address the existing legal theories presented by the original complaint. Finally, they assert that they did not unduly delay in bringing this motion, and that it was based both upon the progress of discovery and the need to issue violation notices before requesting leave to litigate the matters.
Defendants rejoin that at least five of the projects which plaintiffs seek to include in the amended complaint were disclosed in pre-litigation document productions and that plaintiffs offered no justification for waiting until this late date to include them. They assert that by the year 2000, plaintiffs were aware of all of the projects, and that there is similarly no explanation for the delay in attempting to make those part of the case. Further, they note that there is only a short period of time left for the preparation of their expert reports, and they contend that the existing discovery and trial schedule either cannot accommodate these new projects, or would require a significant retooling of the defendants' efforts if the shape and direction of the case were to change so dramatically at this late date.
There is some degree of merit in both parties' arguments. The discretion afforded to the Court under Rule 15(a) (which is equally applicable to requests to amend and to supplement complaints) requires a balancing of competing interests, and a judgment to be made about which of those interests predominates. In this case, the Court concludes that the interests of justice are best served by continuing this case on its present track, which, if nothing else untoward occurs, will permit the Court to decide the liability issues raised by the original complaint slightly less than six years after the case was filed. To jeopardize that schedule at this point, and to postpone that liability ruling even longer, is not in the public interest nor in the interests of any of the litigants to this case. Because the Court believes that, notwithstanding the parties' intentions and best efforts, the case will likely not remain on that track if additional projects are added to its scope, the Court will not permit that to occur.
With respect to the projects described in the original complaint, discovery has been almost overwhelming. Defendants correctly note that each project at each unit essentially stands on its own terms, and that a determination of whether any particular project was either a major modification or routine maintenance and repair is a very fact-intensive inquiry. The Court simply does not believe that sufficient details about these additional projects can be uncovered in time to permit either defendants' expert witnesses to present full and fair opinions about the projects by the existing expert witness disclosure date, or to allow the parties to complete discovery about these projects by the existing discovery cut-off date.
Even if a significant amount of information has been produced about these projects, it was produced in conjunction with litigation which did not specifically involve them. Every time the Court has faced a situation where a party has been required to go back to a prior document production and to look for additional documents or organize documents in some different way, it has taken weeks, if not months, to accomplish. It is unlikely that the parties would be able to accomplish that type of refocusing of efforts between now and either December of this year or January of next year. To require them to attempt to do so, while at the same time maintaining a litigation schedule with respect to the projects which will be litigated, is simply unrealistic.
Moreover, the Court is not persuaded that the denial of the motion will necessarily result in piecemeal litigation. It has been discussed at some length in this case whether a trial of a representative number of projects, but less than the total described in the complaint, would permit the parties to reach resolution with respect to other projects. The same discussion may occur with respect to the projects which plaintiffs propose to add. Assuming that they are similar to projects already being litigated, the Court's decision with respect to the projects currently at issue could provide a template for resolution of any issues arising out of the other projects. Moreover, it may be that any remedy the Court would impose would be the same even if these additional projects are characterized as major modifications. Consequently, the parties might well conclude that there is no benefit to be gained from litigating about these projects at all, and the prospect of piecemeal litigation raised by the plaintiffs may never occur. Even if it does, however, the Court concludes that forcing the parties to engage in some additional litigation is necessary in order to maintain the current litigation schedule for the projects already at issue.
Given the number of years during which the issues involved in this case have been unsettled and during which the parties have engaged in cooperative but laborious discovery, it is not wise to create even the potential that those efforts would again be extended, or that the defendants would view their ability to defend against these new allegations to have been compromised by the Court's decision to hold to the existing schedule. Consequently, balancing all of the relevant factors, and taking into the account the Court's experience with this litigation to date, the Court concludes that the motion to amend must be denied insofar as plaintiffs are requesting to add more projects to the scope of this litigation. The other amendments were not opposed, however, and plaintiffs will be permitted to amend the complaint to effect their intent with respect to those issues.
IV.
Based upon the foregoing, plaintiffs' motion to amend (file doc. #246) is granted in part and denied in part. Within ten days, plaintiffs shall present an amended complaint which does not include additional projects but which does make the other changes requested by plaintiffs. The Court notes that file docs. #247, #248 and #249 also appear on the docket as motions, but are, in fact, a supporting memorandum, a proposed order and a certificate of service relating to #246. They shall also be eliminated from the Court's pending motions list.
Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.