Opinion
NO. 3-00-CV-1080-BD
October 28, 2002
MEMORANDUM ORDER
Defendants James Brace and Irby Foster have filed a motion for leave to amend their answer to assert various affirmative defenses and a counterclaim for breach of contract and declaratory relief. For the reasons stated herein, the motion is denied.
I.
This case originated as a breach of contract, tortious interference, and declaratory judgment action brought by Dallas Area Rapid Transit ("DART") against two of its employees, Brace and Foster, and their union, Local 1338 of the Amalgamated Transit Union ("ATU"). DART filed its original complaint on May 22, 2000. Brace and Foster filed an answer on November 29, 2000. Thereafter, the court entered a scheduling order establishing a pleading deadline of May 15, 2001. See SCH. ORDER, 1/22/01 at 1, ¶ 2.
At the request of the parties, an amended scheduling order was entered on August 23, 2001. However, the deadline for amending pleadings and joining additional parties was not extended. See FIRST AM. SCH. ORDER, 8/23/01 at 1, ¶ 2.
On March 4, 2002, the court sanctioned Brace, Foster, and their attorney, Steven E. Rogers, for their failure to answer written discovery. Brace and Foster then discharged Rogers and hired a new lawyer, Kenny R. Kirby. See ORDER SUB. COUNSEL, 4/17/02. On October 25, 2002 — more than seven months after they retained substitute counsel and nearly 18 months after the expiration of the pleading deadline — Brace and Foster filed a motion for leave to amend their answer and to assert a counterclaim. DART opposes the motion as untimely.
Brace and Foster originally filed their motion on June 28, 2002. The motion was unfiled for failure to comply with the Standing Order on Non-Dispositive Motions. See ORDER, 7/1/02, citing STANDING ORDER ON NON-DISPOSITIVE MOTIONS, 5/17/02 at ¶ 3 (opposed motion must be accompanied by joint status report signed by lawyers after face-to-face conference).
II.
A motion for leave to amend filed after the expiration of the pleading deadline must be scrutinized under a two-part test. First, the court must determine whether to modify the scheduling order under Rule 16(b). See American Tourmaline Fields v. International Paper Co., 1998 WL 874825 at *1 (N.D. Tex. Dec. 7, 1998), citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992) and SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1518 (10th Cir. 1990). This rule provides, in pertinent part, that "[a] schedule shall not be modified except upon a showing of good cause . . ." FED. R. Civ. P. 16(b). The "good cause" standard focuses on the diligence of the party seeking a modification of the scheduling order. American Tourmaline Fields, 1998 WL 874825 at *1; see also Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D. W. Va. 1995). Mere inadvertence on the part of the movant and the absence of prejudice to the non-movant are insufficient to establish "good cause." American Tounnaline Fields, 1998 WL 874825 at *1. Instead, the movant must show that "despite his diligence, he could not have reasonably met the scheduling deadline." Id., citing 6A C. WRIGHT A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1522.1 at 231 (2d ed. 1990). If the movant establishes "good cause" to modify the scheduling order, the court must decide whether to grant leave to amend under the more liberal standards of Rule 15(a). Id.
Rule 15(a) of the Federal Rules of Civil Procedure provides that "a party may amend the party's pleading only by leave of court, and leave shall be freely given when justice so requires." FED. R. Civ. P. 15(a).
Brace and Foster filed their motion for leave to amend on October 25, 2002 — nearly 18 months after the expiration of the pleading deadline. The only explanation for this delay is counsel's conclusory statement that the pleadings filed by defendants' former attorney "were insufficient." (Def. Mot. at 2; Jt. Stat. Rep. at 5). However, counsel fails to explain why he waited seven months after entering an appearance in the case to correct any perceived pleading defect. Because Brace and Foster have failed to demonstrate "good cause" for modifying the pleading deadline in the scheduling order, their motion for leave to amend is denied.
SO ORDERED.