United States District Court, D. South Dakota, Western Division
AMENDED ORDER DENYING MOTION TO AMEND COMPLAINT (DOC.
WOLLMANN UNITED STATES MAGISTRATE JUDGE
a diversity action arising out of a collision between a semi
tractor-trailer and a farm tractor on February 16, 2015, on
South Dakota Highway 73 in Perkins County. Plaintiffs Rodney
Giesler and Mary Giesler filed a Motion to Amend the
Complaint (Doc. 12) requesting leave to add a claim for
punitive damages against Defendants Earl Hirchert and Kraft
LLC. United States District Court Judge Jeffrey L. Viken,
Chief Judge, referred Plaintiffs' Motion to this
magistrate judge for determination. (Doc. 24).
relevant facts as alleged in the proposed Amended Complaint
are as follows. Defendant Earl Hirchert operated a semi
tractor-trailer unit for his employer, Defendant Kraft LLC.
(Doc. 12-1 at p. 2). On February 16, 2015, Mr. Hirchert was
traveling north on South Dakota Highway 73 when he saw an
oncoming gas truck in the southbound lane at a distance.
After driving over a dip in the highway, Mr. Hirchert then
saw plaintiff Rodney Giesler's farm tractor traveling in
the northbound lane, about a quarter-mile ahead of him. The
highway was snowy and slippery; nevertheless, Mr. Hirchert
waited to apply his brakes, and realized he was approaching
the farm tractor too quickly to slow down. Mr. Hirchert
decided to try to pass the farm tractor, even though he was
in a no-passing zone and he knew the gas truck was
approaching in the southbound lane. (Doc. 12-1 at p. 3).
While passing the farm tractor, Mr. Hirchert engaged his
brakes, which caused the rear of the semi-trailer to slide
sideways and impact the farm tractor. The impact broke the
farm tractor's axle housing and the tractor spun and
rolled into the ditch, pinning Mr. Giesler and causing him to
suffer a variety of serious injuries. (Doc. 12-1 at p. 3-4).
Following the accident, Kraft LLC was cited for violating the
Federal Motor Carrier Safety Regulations: the tractor-trailer
involved in the accident was equipped with inadequate brake
linings, violated the minimum tire tread depth requirements,
and its brakes were out of adjustment on two of the three
trailer axles. (Doc. 12-1 at p. 5-6).
proposed Amended Complaint alleges that inadequate inspection
and maintenance caused the cited deficiencies. (Doc. 12-1 at
p. 5). Kraft LLC knew that the cited deficiencies could cause
unequal braking, pulling, and difficulties controlling the
semi-truck in an emergency stop. (Id.). Kraft LLC
was aware that the Federal Motor Carrier Safety Regulations
require drivers prepare and sign daily written reports on
each operated vehicle, including on the vehicle's tires
and brakes; nevertheless, Kraft LLC had its drivers report
deficiencies on a dry-erase board, and no written record or
report was ever prepared or certified. (Doc. 12-1 at p. 6).
support of their proposed claim for punitive damages,
Plaintiffs allege that Mr. Hirchert and Kraft LLC failed to
properly inspect and report deficient tires and brakes on the
semi-truck, and failed to prepare written reports regarding
necessary repairs and maintenance, thereby acting in reckless
indifference to important safety rules regarding inspection,
maintenance, and commercial vehicle operation. (Doc. 12-1 at
p. 10-12). Plaintiffs further allege that Mr. Hirchert failed
to operate the semi-truck with extreme caution in hazardous
conditions, in violation of Section 392.14 of the Federal
Motor Carrier Safety Regulations; violated state law by
attempting to pass in a no-passing zone; violated state law
by operating the semi-truck at a greater-than-reasonable
speed in hazardous conditions; and acted in reckless
indifference for the safety of other highway users.
move to amend the Complaint to add a claim for punitive
damages. (Doc. 12). Defendants argue that Plaintiffs fail to
show good cause to amend the Complaint outside the
court's scheduling order. Even if Plaintiffs show good
cause, Defendants argue that the proposed amendment is
Whether Plaintiffs Show Good Cause to Amend
Rule of Civil Procedure 15 requires that “leave to
amend a complaint ‘shall be freely given when justice
so requires, ' but the granting of such a motion is left
to the discretion of the district court.” Kaufmann
v. Sheehan, 707 F.2d 355, 357 (8th Cir. 1983) (quoting
Fed.R.Civ.P. 15(a)). “[A]bsent a good reason for
denial-undue delay, bad faith or dilatory motive, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility
of amendment-leave to amend should be granted.”
Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir.
Rule 15(a) does not apply when, as here, the “district
court has established a deadline for amended pleadings under
FRCP 16(b).” Kozlov v. Assoc. Wholesale Grocers,
Inc., 818 F.3d 380, 395 (8th Cir. 2016) (internal
quotations omitted). The January 19, 2017, scheduling order
established an amendment deadline of March 17, 2017. (Doc.
11). Thus, “the liberal policy favoring amendments no
longer applie[d]” when Plaintiffs filed their motion to
amend on August 15, 2017. Kozlov, 818 F.3d at 395.
Rather, Plaintiffs must now make “a showing of good
cause” to amend their complaint. Id.;
Fed.R.Civ.P. 16(b)(4) (“A schedule may be modified only
for good cause and with the judge's consent.”).
primary measure of good cause for an amended complaint is the
movant's diligence in attempting to meet the scheduling
order's requirements. Morrison Enters., LLC v. Dravo
Corp., 638 F.3d 594, 610 (8th Cir. 2011) (internal
citations omitted). “Motions that would prejudice the
nonmoving party by requiring a re-opening of discovery with
additional costs, a significant postponement of the trial,
and a likely major alteration in trial tactics and strategy
are particularly disfavored.” Kozlov, 818 F.3d
at 395 (internal quotations omitted) (affirming district
court's denial of motion to amend where movant waited
three years after obtaining relevant evidence before adding
negligent hiring claim); see also Harris v. FedEx Nat.
LTL, Inc., 760 F.3d 780, 786-87 (8th Cir. 2014)
(affirming district court's denial of motion to amend
where movant sought to amend complaint 17 months after
deadline and attempted to add an entirely new theory of
recovery); Hartis v. Chicago Title Ins. Co., 694
F.3d 935, 948-89 (8th Cir. 2012) (finding plaintiffs did not
act diligently by waiting to amend their complaint until two
years after deadline; plaintiffs' delay was deliberately
intended to prevent class certification denial); Sherman
v. Winco Fireworks, Inc., 532 F.3d 709, 717-718 (8th
Cir. 2008) (reversing district court and finding movant
failed to show diligence in amending complaint; movant
attempted to add affirmative defense eighteen months after
deadline for amending pleadings, and eight months after
becoming aware of defense's applicability).
Nationwide Mut. Ins. Co. v. Korzan, 15-CV-4124-KES,
2016 WL 4148242 (D.S.D. Aug. 4, 2016), this court addressed
the issue of good cause, where defendants moved to amend
their complaint four months after receiving relevant evidence
and two months after the deadline to amend. The court found
that the delay “fail[ed] to compare to situations where
courts have not found good cause.” Id. at *3
(contrasting cases where movants delayed amendments for
between one and three years). No evidence existed that
defendants deliberately delayed their motion to amend;
furthermore, defendants did not miss any other scheduling
deadlines. Id. The court accordingly found that the
defendants' delay was relatively brief, and good cause
existed. Id.; compare Lee v. Driscoll, No.
14-CV-4146-LLP, 2016 WL 1337248, at *3-4 (D.S.D. Mar. ...