United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO
AMEND COMPLAINT (DKT. 23) AND DENYING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT (DKT. 14) WITHOUT PREJUDICE
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
Overview and Procedural History
Powell alleges that he slipped and fell in a Wal-Mart store
and injured himself. His lawyer now asks the Court to allow
him to amend the complaint even though Walmart has already
filed a motion for summary judgment. Plaintiff's attorney
waited until after discovery closed before he got an expert
involved, and waited until after Walmart had filed a summary
judgment motion to ask to amend the complaint to include
claims based on the expert's re-port. So Plaintiff now
moves to amend the Complaint. (Dkt. 23). On April 25, 2017
Defendant filed a Response objecting to this motion. (Dkt.
24). On May 15, 2017 the parties' attorneys appeared
before the Court via telephone, on the record, to discuss
Plaintiff's motion. (Dkt. 23).
closed in this case on December 8, 2016. (Dkt. 12). On
February 9, 2017, Defendant timely filed a Motion for Summary
Judgment. (Dkt. 14). Plaintiff's counsel failed to timely
respond to this motion and, accordingly, on March 14, 2017
the Court ordered him to show cause regarding his lack of
response. (Dkt. 19). On March 17, 2017, Plaintiff filed a
late Response to Defendant's Motion for Summary Judgment.
(Dkt. 20). Currently, a hearing on Defendant's Motion for
Summary Judgment is set for June 26, 2017. (Dkt. 21).
Plaintiff's Motion to Amend the Complaint (Dkt. 23)
than four months after the close of discovery, and over two
months after the cut-off date for the filing of dispositive
motions, Plaintiff's counsel filed a motion seeking leave
to amend the complaint. (Dkt. 23). The original complaint
contained only one count of premises liability against
Wal-Mart. (Dkt. 1 at 11). Plaintiff's proposed amended
complaint alleges a second count-based on the findings in a
March 4, 2017 report from expert witness Jef- frey E. Bartrem
(Dkt. 20, Ex. 5)-for violation of Michigan Common Law,
Statutes, Ordinance, and Building Code (essentially, a claim
for negligence per se). (Dkt. 23 at 381).
Civ. P. 15(a)(2) instructs the Court that leave to amend
should be freely given when justice so requires. “The
thrust of Rule 15 is . . . that cases should be tried on
their merits rather than the technicalities of
pleadings.” United States ex rel. Harper v.
Muskingum Watershed Conservancy District, 842 F.3d 430,
439 (6th. Cir 2016). But the right to amend is not automatic.
“Factors that may affect [the] determination include
undue delay in filing, lack of notice to the opposing party,
bad faith by the moving party, repeated failure to cure
deficiencies…, undue prejudice to the opposing party,
and futility of amendment.” Seals v. General Motors
Corp. 546 F.3d 766, 771 (6th Cir. 2008). A court may
deny a motion to amend a complaint if it is filed after the
close of discovery, as this delay may prejudice the opposing
party. See, e.g., Miller v. Administrative Office of
Courts, 448 F.3d 887, 898 (6th Cir. 2006) (citing
Duggins v. Steak N' Shake, Inc., 195 F.3d 828,
834 (6th Cir. 1999)).
the May 15, 2017 telephonic conference call with parties and
the Court, Plaintiff's counsel, Mr. David K. Whipple,
stated that his delay in filing Plaintiff's motion to
amend was due to defense counsel's uncooperativeness
during discovery. This uncoop-erativeness, Mr. Whipple said,
delayed the production of Mr. Bar-trem's expert
report-which was the basis for the amended com-plaint-until
March 4, 2017. Defense counsel, however, denied being
uncooperative during discovery, and further claimed that
Plaintiff's counsel: (1) failed to substantiate his
allegations that defense counsel was obstructive, (2) failed
to explain why he waited until April 11, 2017 to file
Plaintiff's motion to amend even though he received Mr.
Bartrem's expert report on March 4, 2017, and (3) failed
to explain why, if it were the case that defense counsel was
obstructing discovery, this matter was not brought to the
Court's attention sooner.
Court finds no support for the allegation that Defense
Counsel failed to comply with its discovery obligations. On
this record, Plaintiff's counsel has failed to articulate
any adequate explanation for the delay. The Court therefore
concludes that, by waiting until after dispositive motions
were filed in this case, Plaintiff's counsel unduly
delayed the filing of Plaintiff's Motion to Amend the
during the Court's May 15, 2017 call with the parties,
Defense counsel contended that her client would suffer
prejudice should the Court grant Plaintiff's untimely
motion to amend. Defense counsel stated that it would
inconvenience, and impose an unforeseen cost on, her client
to have to defend against an additional count, which at this
point in the litigation would require reopening discovery and
Defendant to supplement and refile its motion for summary
Court recognizes that there is some merit in Defendant's
position; granting Plaintiff's untimely motion to amend
will require reopening discovery and cause Defendant to
supplement and refile its motion for summary judgment.
Although this is a burden, it is not the kind of prejudice
that should bar a Plaintiff from being permitted access to
the courts on a claim that, although late, may be entitled to
redress. Consequently, and somewhat reluctantly, the Court
will grant Plaintiff's Motion to Amend the Complaint
(Dkt. 23), and deny without prejudice Defendant's Motion
for Summary Judgment. (Dkt. 14).
thrust of Rule 15 is that cases should be tried on their
merits. And neither the inconvenience nor the unforeseen cost
imposed on Defendant will be great: on the May 15, 2017 call,
the parties agreed that the only additional discovery
necessary will be Defendant's deposition of Mr. Bartrem,
and in any re-filed motion for summary judgment, Defendant
will only have to address one additional count. Moreover, to
minimize any unforeseen cost imposed on Defendant, Plaintiffs
counsel is hereby ORDERED to pay all reasonable expenses and
attorney's fees incurred by Defendant in taking Mr.
Bartrem's deposition, which Plaintiffs counsel caused to
be taken at such a late stage in this litigation.
Fed.R.Civ.P. 30(d)(2) (“The court may ...