United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PLAINTIFF'S MOTION TO AMEND THE
COMPLAINT AND EXTEND DISCOVERY AND MOTION DEADLINES
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
case arises from an unsolicited fax message that Defendant J.
Associates, Inc. (d/b/a/ Reckner Healthcare) sent to
Plaintiff Brian Lyngaas, D.D.S. Plaintiff claims the fax
violated the Telephone Consumer Protection Act, 47 U.S.C.
§ 227 and regulations issued by the Federal
Communications Commission (“FCC”). Plaintiff now
wishes to amend his Complaint to add a new defendant,
Calcivis, Ltd. See ECF No. 39. Plaintiff says he
learned for the first time in February 2019 that Calcivis had
hired defendant Reckner Healthcare to send the faxes that are
at the heart of this litigation. Additionally, Plaintiff
requests an extension of deadlines in the Scheduling Order to
allow time for discovery related to Calcivis. The Court will
grant Plaintiff's motion, which is unopposed.
Rule 15(a)(1), “[a] party may amend its pleading once
as a matter of course within” 21 days after serving it
or, “if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule
12(b), (e), or (f) motion, whichever is earlier.”
Otherwise, a party may amend its pleading only with written
consent of the opposing party or leave of the Court.
Fed.R.Civ.P. 15(a)(2). “The court should freely give
leave when justice so requires.” Id.
exercising its discretion as to whether to allow an
amendment, “the court should consider the delay in
filing, the lack of notice to the opposing party, bad faith
by the moving party, repeated failure to cure deficiencies by
previous amendments, undue prejudice to the opposing party,
and futility of the amendment.” Perkins v. Am.
Elec. Power Fuel Supply, Inc., 246 F.3d 594, 605 (6th
Cir. 2001). Though the standard for granting a motion to
amend a complaint is liberal, the Sixth Circuit has held that
a court should deny amendment if the proposed amended
complaint would not survive a motion to dismiss.
Neighborhood Dev. Corp. v. Advisory Council on Historic
Pres., 632 F.2d 21, 23 (6th Cir. 1980).
facts before it, the Court finds justice requires permitting
Plaintiff to amend his complaint. Defendant Reckner
Healthcare disclosed, for the first time, in supplemental
discovery responses dated February 8, 2019, that it had been
hired by Calcivis to send the faxes at issue in this case.
ECF No. 39 PageID.578. Then, on February 12, 2019,
“Plaintiff took the deposition of the Defendant
[Reckner Healthcare] and confirmed that Calcivis, Ltd hired
Reckner to send the subject faxes.” Id. The
Court has no reason to believe that any bad faith or lack of
diligence on the part of Plaintiff caused delay in the
decision to add Calcivis to the suit. Further, permitting
Plaintiff to amend his complaint at this time will not cause
any undue prejudice to Defendant Reckner Healthcare, which
did not oppose Plaintiff's motion to amend. Finally,
there is no reason to believe that this amendment would be
futile or that the amended complaint would be unable to
survive a motion to dismiss. For these reasons, the Court
concludes that justice requires both granting Plaintiff's
motion to amend its pleading and extending the deadlines
contained in the existing Scheduling Order.
foregoing reasons, Plaintiff Brian Lyngaas's motion to
amend his complaint (ECF No. 39) is GRANTED.
As requested by Plaintiff, the Court will also extend the
deadlines in the existing Scheduling Order to allow time to
conduct discovery related to newly added Defendant Calcivis,
Ltd. The new discovery cutoff will be July 12, 2019 and the
new deadline to file a motion for class certification will be
July 26, 2019. Dispositive motions must be filed within 35
days of this Court's ruling on the anticipated motion for
class certification. Additional deadlines will be set as
hereby certify that this Order was electronically submitted
on April 16, 2019, using the CM/ECF system, which will send
notification to all parties.
 Motions to amend pleadings are often
subject to the dates established in a scheduling order issued
under Rule 16(b) of the Federal Rules of Civil Procedure.
That rule allows that deadlines for amending pleadings in
such a scheduling order “shall not be modified except
upon a showing of good cause and by leave of the district
judge.” Here, however, the Scheduling ...