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Al-Anazi v. Bill Thompson Transport, Inc.

United States District Court, E.D. Michigan, Southern Division

June 7, 2017

Abdallah Al-Anazi and Sadaqa National, Inc., Plaintiffs,
v.
Frederick-Thompson Company d/b/a FTI, and Bill Thompson Transport, Inc., Defendants.

          R. Steven Whalen Mag. Judge

          OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO AMEND COMPLAINT [64], TERMINATING MOTION TO CERTIFY CLASS [48], AND DENYING WITHOUT PREJUDICE MOTION TO STRIKE AFFIDAVIT OF WADE THOMPSON [63]

          Judith E. Levy United States District Judge

         On August 11, 2016, the Court set a scheduling order establishing September 12, 2016 as the deadline for plaintiff Abdallah Al-Anazi to amend the complaint. (Dkt. 33.) On September 6, 2016, plaintiff filed an amended complaint, adding his company, Sadaqa National, Inc., as a plaintiff. (Dkt. 36.) On February 17, 2017, plaintiffs filed a combined motion to certify a class and amend the complaint to add new class representatives. (Dkt. 48.)

         That motion had two flaws. First, it was procedurally improper, because it failed to attach a copy of the amended complaint. E.D. Mich. Local R. 15.1. Second, it was substantively deficient, because it sought to add class representatives without identifying them. (See Dkt. 48 at 21-22.) On March 27, 2017, the Court held a telephonic hearing concerning, in part, plaintiffs' combined motion. During that hearing, the Court and the parties discussed the issues with plaintiffs' combined motion. The Court granted plaintiffs leave to file a proper and separate motion for leave to amend the complaint, and because of the additional time required to file the brief, suspended the remaining dates on the scheduling order pending a decision on the motion to amend. (Dkt. 61.)

         Plaintiffs filed their motion for leave to amend the complaint on April 2, 2017, (Dkt. 64), and it is now fully briefed and ready for adjudication.

         Plaintiffs seek leave to add two named class representatives to their complaint: Anthony Coleman and Ralph Ross. (Dkt. 64 at 9.) Coleman was disclosed to plaintiffs in a discovery production provided on August 10, 2016. (Dkt. 67 at 4.) Ross was disclosed to plaintiffs in a discovery production containing information relating to numerous potential class representatives, issued on January 4, 2017. (Dkt. 64 at 12.) Plaintiffs did not file a motion identifying either person as a potential class member until April 2, 2017.

         Fed. R. Civ. P. 15(a)(2) states that after an initial period permitting a plaintiff to amend once as a matter of course, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” However, Fed.R.Civ.P. 16(b)(3) requires the Court to set a scheduling order limiting the time to, among other things, “amend the pleadings.” After a scheduling order is set, it “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4).

         These two provisions may seem facially contradictory, with one creating a liberal amendment standard and the other limiting the ability to amend the complaint pending a showing of good cause by a plaintiff. However, the purpose of Rule 16 is to “ensure that ‘at some point both the parties and the pleadings will be fixed.'” Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (citing Fed R. Civ. P. 16, 1983 advisory notes). The “good cause” requirement ensures the movant's “diligence in attempting to meet the case management order's requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002).

         Here, plaintiffs filed a motion for leave to amend their complaint to add new class representatives nearly seven months after the deadline to amend the complaint set in the Court's scheduling order. Plaintiffs argue that this case has no scheduling order, because the Court suspended “[a]ll scheduling order dates” pending a ruling on this motion. (Dkt. 61 at 1.) Because there is no scheduling order, plaintiffs contend, Rule 16 cannot apply, and they are bound only by Rule 15's liberal amendment standard.

         In suspending the remaining scheduling order dates pending a ruling on this motion to amend the complaint, the Court modified the scheduling order pursuant to Rule 16(b)(4). The Court had good cause to do so, given that the numerous extensions for plaintiffs' class certification motion, coupled with the need to have plaintiffs refile their deficient motion to amend, would have let plaintiffs alter the complaint after discovery closed on May 1, 2017. (See Dkt. 33.) Modification of a scheduling order, even when the dates remain undetermined pending a decision on a motion that may increase the amount and type of discovery needed, does not abolish the scheduling order. Additionally, the date set for amending the complaint has remained constant, and no subsequent modification has retroactively eliminated or amended that date.

         Plaintiffs also argue that the Court, having set a new deadline to file a compliant motion for leave to amend, “granted leave to allow for Plaintiffs to file their Second Amended Complaint in compliance with the local court rules.” (Dkt. 69 at 2 (citing Dkt. 61) (emphasis in original).) This is inaccurate. The Court set a date for plaintiffs to correct the deficiencies in their combined motion seeking leave to file an amended complaint. The Court did not set a new date for plaintiffs to amend the complaint, and no amendment was permitted in the Court's March 30, 2017 order.

         There are many reasons a plaintiff might have to wait to file a motion to amend a complaint to add new named class representatives, particularly in a case involving truck drivers, whose lives are less fixed than people in most other lines of employment. This is doubly so where numerous potential class representatives were identified on January 4, 2017, and plaintiffs needed to contact those people to determine whether they were suitable and willing to serve as class representatives.

         Without a showing of good cause, a delay of roughly two months after an amendment deadline is sufficient to deny a motion for leave to amend a complaint. See Johnson v. Metro. Gov't of Nashville and Davidson Cnty., Tenn., 502 F. App'x 523, 541 (6th Cir. 2012) (upholding denial of a motion for leave to amend filed “over two months” after a scheduling order deadline). Plaintiffs do not articulate the good cause for their delay, but do establish the timeline of discovery and filings that led to their current motion to amend.

         Despite plaintiffs' failure to articulate their explanation as good cause, such cause is apparent from the timeline of events provided by plaintiffs. The earliest plaintiffs could have filed a motion to amend was at some reasonable point after January 4, 2017, following an opportunity to contact the list of potential class representatives that defendants provided. They filed that motion on February 17, 2017, but did not identify the potential class representatives. On March 27, 2017, the Court instructed plaintiffs to refile the motion properly, and they did so six days later. To the extent there was an ...


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