Opinion
Civil Action No: 04-0685 Section: "K" (4).
January 18, 2005
On December 21, 2004, the defendant, Taylor Energy Company ("Taylor"), filed an Opposed Motion for Leave to File First Supplemental and Amending Answer (doc.#8), seeking an order from the Court allowing it to assert the additional affirmative defense of statutory immunity from tort liability based upon the borrowed servant defense. A hearing on this motion, with oral argument, was held on January 5, 2005. The plaintiff, Darius Vidrine, timely opposed this motion on the bases that the proposed amendment is untimely, will delay the trial date, and will force him to incur additional expenditures related to depositions and other discovery. (doc.#9).
I. Background
The plaintiff, Darius Vidrine ("Vidrine") filed this personal injury action on March 9, 2004, for damages as a result of an injury that occurred on June 7, 2003 while working as a cook aboard a platform owned and operated by Taylor Energy Company ("Taylor"). On June 10, 2004, a preliminary conference was held before the Court, and the following pertinent deadlines were established: July 15, 2004 — amendments to pleadings due; February 22, 2005 — depositions and completion of discovery; April 11, 2005 — jury trial (doc.#4). Both parties exchanged discovery responses and requests and based on a Minute Entry dated November 5, 2004, it appears that discovery was proceeding without problems (doc.#7). After the plaintiff's deposition on December 10, 2004, Taylor claimed that the borrowed servant defense then became apparent and Taylor then contacted Vidrine regarding its proposed assertion of this defense. Vidrine then filed an opposition to this motion for leave to amend (doc.#9).
II. Standard of Review
Federal Rule of Civil Procedure 15(a), which governs the amendment of pleadings, provides that leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.Proc. 15(a). This, and other federal rules "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48 (1957). Thus, Rule 15(a) evinces a liberal amendment policy and a motion to amend should not be denied absent a substantial reason to do so. See Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998). This `policy' is strongest when the motion challenged is the first motion to amend." Thompson v. New York Life Ins. Co., 644 F.2d 439, 444 (5th Cir. 1981).
Further, Federal Rule of Civil Procedure 15(d) provides that a party may be permitted to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. Id.
However, leave to amend is by no means automatic. Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). The decision to grant or deny a motion for leave to amend lies within the sound discretion of the trial court. Id. In exercising its discretion, the trial court may consider such factors as "undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of the amendment." Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). Leave to amend should be denied when doing so is required for fairness to the party opposing the motion for leave to amend. Zenith Radio Corporation v. Hazeltime Research, Inc., 401 U.S. 321 (1971). Additionally, a motion for leave to file amended pleadings "should not be denied unless there is a substantial reason to do so." Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
III. Analysis
In the instant case, Taylor claims that based on the plaintiff's deposition taken on December 10, 2004, Taylor wished to additionally assert that it is statutorily immune from tort liability based upon the borrowed servant defense. According to Taylor, while its employees provided all of the plaintiff's work instructions and the work performed was in support of Taylor's operations, the plaintiff was paid by his nominal employer, John Soileau, Inc. ("Soileau") for his services. Further, Taylor contends that allowing the amendment would not retard the progress of the case.
In particular, Taylor seeks to insert the following language as its Eleventh Defense to its Answer: ELEVENTH DEFENSE
In the alternative, plaintiff was the borrowed servant and/or borrowed employee of Taylor Energy. Therefore, Taylor Energy Company is statutory immune from tort liability.
Vidrine contends that Taylor should not be allowed to amend its Answer because it is dilatory in its attempt to now do so as the deadline for amending pleadings was July 15, 2004. Specifically, Vidrine claims that the proposed amendment is untimely, would force him to expend funds on depositions and other discovery to respond to this defense, would delay the trial date, and that to do so would violate Federal Rule of Civil Procedure I which states that the rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."
One potential source of prejudice to the plaintiff is undue delay. However, undue delay refers to a delay in the proceedings, not to a delay in amending the pleadings. See, e.g., Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 939 (3d Cir. 1984). Moreover, unexcused delay unaccompanied by real detriment to the defendant or the judiciary does not constitute undue delay. E D. Pennsylvania v. Shisler, 190 F.R.D. 341, 343 (E.D. Penn. 1999). Thus, a motion for leave to file amended pleadings "should not be denied unless there is a substantial reason to do so." Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)). In the instant case, the undue delay to the plaintiff is a prejudice that must be considered.
However, this Court has held that the mere failure to meet a deadline specified in the Court's scheduling order is an insufficient basis for denying leave. See Barrett v. R.J. Reynolds Tobacco, Co., 1999 WL 893571 (E.D. Oct. 15, La. 1999) (party's failure to amend within the date specified in the Court's scheduling order does not in and of itself constitute a substantial reason for denying leave). Rather, the potential for undue prejudice to the nonmoving party is the touchstone for the denial of leave to amend. Lowrey v. Texas A M Univ. System, 117 F.3d 242, 246 (5th Cir. 1997); Coventry v. United States Steel Corp., 856 F.2d 514, 519 (3d Cir. 1988).
The Court noted that the discovery deadline in this matter is February 22, 2005 and that trial is scheduled to commence on April 11, 2005. During oral argument, Vidrine claimed that it would be necessary to re-depose two Taylor employees, Chad Barrilleaux and Louis Larche, and that the deposition of a Soileau representative would be necessary. Based on this information and in light of the aforementioned deadlines, the Court suggested that the three proposed depositions could be accomplished within the confines of these deadlines. To avoid any further delays, the parties agreed that the two Taylor employees' depositions would be limited to the issues regarding the borrowed servant doctrine and the determination of the defendant's control over the plaintiff. Moreover, Taylor agreed to present these employees for deposition at the plaintiff's counsel's office and that it could do so prior to the February 22, 2005 discovery deadline if the plaintiff provides reasonable notice.
Pursuant to this Court's Order, Taylor would be responsible for the court reporter expenses for the Taylor employees' depositions. Further, both parties agreed that they would schedule and complete the deposition of a Soileau representative, and the Taylor employees' depositions, prior to the discovery deadline so as not to disturb the trial date. The Court further instructed the parties to fax a letter to the Court, once the deposition dates have been secured, reflecting the scheduling of these depositions within the discovery deadline.
Further, the Court has recognized that while allowing the amendment of the Answer does not comport with the scheduling order in this case, according to the Fifth Circuit decision in the Barrett case, the Court is afforded great latitude in allowing amendments outside the confines of the Court's scheduling order. In further support, this Court is persuaded by the Fifth Circuit's rationale in the Jacobsen and Thompson cases, which affords this Court great latitude in adopting a liberal amendment policy absent a substantial reason to do so, particularly when the motion challenged is the first motion to amend. The Court notes that the plaintiff will suffer no undue prejudice if the amendment is allowed. Additionally, Federal Rule of Civil Procedure 15(d) contemplates that pleadings may be amended upon the discovery of further information and even if the original pleading is defective in its claims for relief or defenses.
Therefore, pursuant to Federal Rule of Civil Procedure 15(a) and (d), the fact that no prior amendments have been requested, and the absence of evidence that the proposed amendment is a result of dilatory conduct on the party of the defendant, the proposed amendment should be allowed. Additionally, both parties agree that they can accomplish the necessary deposition scheduling in a manner that will not affect the discovery deadline in this case, and therefore, the trial of this matter will not be delayed. Further, Taylor has agreed to cover the court reporter expense for its employees' depositions. Therefore, the plaintiff will not be unduly prejudiced in preparing for trial.
Accordingly,
IT IS THEREFORE ORDERED that defendant's. Taylor Energy Company's, Opposed Motion for Leave to File First Supplemental and Amending Answer (doc. #8) is GRANTED as follows:
1) GRANTED to the extent that defendant seeks to amend the original Complaint by adding its Eleventh Defense as proposed in its motion.
2) Defendant must produce the two previously deposed Taylor employees, Chad Barrilleaux and Louis Larche, for deposition and pay for the court reporter expenses related to these depositions.
3) The deposition of the appropriate Soileau representative shall be scheduled and completed prior to the February 22, 2005 discovery deadline.
4) Both parties must submit a faxed letter to the court no later than Friday, January 21, 2005, evidencing the scheduling of the Taylor and Soileau depositions within the February 22, 2005 discovery deadline.