United States District Court, D. South Dakota, Western Division
THE ESTATE OF ROBERT BEAR SHIELD; JERRY BEAR SHIELD, SR., JERRY BEAR SHIELD, JR., JAYDEE SPOTTED ELK, AMERICAN ZURICH INSURANCE COMPANY, BROUGHT IN FROM 19-5044 WHEN CASES WERE CONSOLIDATED; AND HEAVY CONSTRUCTORS INC., BROUGHT IN FROM 19-5044 WHEN CASES WERE CONSOLIDATED; Plaintiffs,
KUMHO TIRE U.S.A., INC., KUMHO TIRE MERGER SUBSIDIARY, INC., KUMHO TIRE CO. INC., KUMHO TIRE VIETNAM CO., LTD., BROUGHT IN FROM 19-5044 WHEN CASES WERE CONSOLIDATED; Defendants.
ORDER DENYING THE BEAR SHIELD PLAINTIFFS' MOTION
TO AMEND DOCKET NO. 42
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
matter represents the consolidation of two separate civil
cases involving products liability-related claims arising out
of the same automobile accident, allegedly caused by the
malfunction of a truck tire. Now pending is a motion to amend
their complaint by plaintiffs Brigitte Jahner, as personal
representative of the estate of Robert Bear Shield; Jerry
Bear Shield, Sr.; Jerry Bear Shield, Jr.; and Jaydee Spotted
Elk (collectively “the Bear Shield plaintiffs”).
See Docket No. 42. This matter was referred to this
magistrate judge for determination pursuant to 28 U.S.C.
§ 636(b)(1)(A) and the October 16, 2014, standing order
of the Honorable Jeffrey L. Viken, then-Chief United States
District Judge. See Docket No. 43.
case represents two consolidated cases arising out of the
same automobile accident due to an allegedly defective tire.
In civil number 18-5036 the Bear Shield plaintiffs sought
damages in their original complaint on theories of
negligence, strict products liability, breach of warranty,
wrongful death, and negligent and intentional infliction of
emotional distress. See Docket No. 1. These
individual plaintiffs originally sued only Kumho Tire U.S.A.,
Inc. and Kumho Tire Merger Subsidiary, Inc. as defendants.
plaintiffs filed their original complaint on June 1, 2018.
Kumho Tire U.S.A., Inc. filed an answer on July 20, 2018
(Docket No. 6), after which a scheduling order was issued by
the district court (Docket No. 16). Defendant Kumho Tire
Merger Subsidiary, Inc. filed an answer the next day on
August 28, 2018. See Docket No. 18.
a year later, individual plaintiffs simply filed an
“amended complaint” without a motion, stipulation
by the parties, or leave of the court. See Docket
No. 21. The individual plaintiffs' amended complaint
purported to add “Kumho Tire, Company, Inc., a South
Korean Corporation” (hereinafter “KTCI”),
as a new defendant. Id. KTCI moved to dismiss the
Bear Shield plaintiffs' amended complaint because the
Bear Shield plaintiffs never made a motion to amend their
complaint as required by Fed.R.Civ.P. 15(a)(2). This court
recommended granting KTCI's motion to dismiss and no
party has objected to that recommendation. See
Docket No. 37.
Bear Shield plaintiffs then filed a motion to amend their
complaint. See Docket No. 42. The motion reads in
its entirety as follows: “COMES NOW [Bear Shield
plaintiffs] and hereby moves the Court for leave to file
Plaintiff's [sic] Second Amended Complaint, pursuant to
Fed.R.Civ.P. 15 and DSD L.R. 15.1. A copy of Plaintiffs'
proposed Second Amended Complaint is attached hereto.”
See Docket No. 42 at p. 1. The Bear Shield
plaintiffs attached a copy of their proposed amended
complaint. See Docket No. 42-1. No. memorandum of
law in support of the motion was filed.
Kumho Tire USA, Inc. and Kumho Tire Merger Subsidiary, Inc.
respond in opposition to the Bear Shield plaintiffs'
motion to amend. See Docket No. 51. These defendants
point out, among other arguments, that a brief in support of
any substantive motion is required by local rules and the
Bear Shield plaintiffs' motion does not comply with local
rules in this regard. Id.
of the Federal Rules of Civil Procedure governs amendments to
plaintiffs' complaint. That rule provides in pertinent
part as follows:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course.
A party may amend its pleading once as a matter of course