United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE.
Angela Mauer has filed an Amended Motion for Leave to File
Amended Petition. See Dkt. No. 45. In her Amended
Motion for Leave to File Amended Petition, Mauer explains
that, “[t]hough Plaintiff's First Amended Petition
pled claims sounding in premises liability, general
negligence and gross negligence, there appears to be
confusion on Defendants' part as to the nature of
Plaintiff's claims. Thus, Plaintiff prays leave of the
Court to Amend her Petition to conform her pleadings to
provide additional language and clarity with regard to her
negligence and gross negligence claims.” Id.
Wal-Mart Stores, Inc., Wal-Mart Stores East, Inc., d/b/a
Wal-Mart #1055, and Wal-Mart Real Est Business (collectively,
“Wal-Mart”) have filed a response, see
Dkt. No. 46, and Mauer filed a reply, see Dkt. No.
Court explained in its briefing order, the following
standards governing Mauer's motion, which is filed after
the June 1, 2017 deadline for motions for leave to amend
pleadings set by the Court's Initial Scheduling Order
[Dkt. No. 20]:
Because the standards by which the Court evaluates a motion
for leave to amend the pleadings vary according to whether
the motion was filed before or after the deadline established
in the scheduling order, the Court must determine, as an
initial matter, whether the motion was filed before or after
the deadline. See, e.g ., Orthoflex, Inc. v.
Thermotek, Inc., Nos. 3:11-cv-08700-D &
3:10-cv-2618-D, 2011 WL 4398279, at *1 (N.D. Tex. Sept. 21,
2011) (“Motions for leave to amend are typically
governed by [Federal Rule of Civil Procedure] 15(a)(2), or,
if the time to seek leave to amend has expired, by [Federal
Rule of Civil Procedure] 16(b)(4) and then by Rule
When the deadline for seeking leave to amend pleadings has
expired, the Court must first determine whether to modify the
scheduling order under the Federal Rule of Civil Procedure
16(b)(4) good cause standard. See S&W Enters., L.L.C.
v. SouthTrust Bank of Ala., N.A., 315 F.3d 533, 536 (5th
Cir. 2003). The Court's scheduling order “may be
modified only for good cause and with the judge's
consent.” Fed.R.Civ.P. 16(b)(4). To meet the good cause
standard, the party must show that, despite her diligence,
she could not reasonably have met the scheduling order
deadline. See S&W, 315 F.3d at 535. The Court
assesses four factors when deciding whether to grant an
untimely amendment under Rule 16(b)(4): “‘(1) the
explanation for the failure to timely move for leave to
amend; (2) the importance of the amendment; (3) potential
prejudice in allowing the amendment; and (4) the availability
of a continuance to cure such prejudice.'”
Id. at 536 (quoting Reliance Ins. Co. v. La.
Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.
In the related context of deciding whether to exclude an
untimely expert designation, the United States Court of
Appeals for the Fifth Circuit, looking to the same four
factors, has explained that, if “the first and third
factors militate against permitting the testimony, the trial
court was not obligated to continue the trial, ” where,
“[o]therwise, the failure to satisfy the rules would
never result in exclusion, but only in a continuance, ”
and, “[b]ecause of a trial court's need to control
its docket, a party's violation of the court's
scheduling order should not routinely justify a
continuance.” Hamburger v. State Farm Mut. Auto.
Ins. Co., 361 F.3d 875, 883-84 (5th Cir.
2004); see also Reliance Ins., 110 F.3d at 258
(“District judges have the power to control their
dockets by refusing to give ineffective litigants a second
chance to develop their case.”).
Moreover, courts “more carefully scrutinize a
party's attempt to raise new theories of recovery by
amendment when the opposing party has filed a motion for
summary judgment.” Parish v. Frazier, 195 F.3d
761, 764 (5th Cir. 1999) (citations omitted). And,
“[w]hen leave to amend is sought after a summary
judgment motion has been filed, courts routinely decline to
permit the moving party to amend.” Hunsinger v. Sko
Brenner American, Inc., No. 3:13-cv-988-D, 2014 WL
1462443, at *14 (N.D. Tex. Apr. 15, 2014). As the Fifth
Circuit has recognized, “[t]o grant ... leave to amend
is potentially to undermine [the non-amending party's]
right to prevail on a motion that necessarily was prepared
without reference to an unanticipated amended complaint.... A
party should not, without adequate grounds, be permitted to
avoid summary judgment by the expedient of amending [his]
complaint.” Overseas Inns S.A. P.A. v. United
States, 911 F.2d 1146, 1151 (5th Cir. 1990) (internal
quotation marks omitted).
The Fifth Circuit recently invoked this standard in affirming
a district court's denial of an untimely amendment to add
a new claim, explaining:
Finally, Squyres sought leave to amend his complaint on
August 22, 2013. By that time, the December 31, 2012 deadline
to amend pleadings had long since passed. Therefore, because
Squyres sought to amend his pleadings after the deadline set
in the scheduling order, Squyres had to satisfy Rule
16(b)' s standard and again demonstrate that he could not
reasonably have met this deadline despite exercising
diligence. Citing both Rule 16 and Rule 15, the district
court denied Squyres's motion, concluding that Squyres
had failed “to show that a third amended complaint
should be permitted at this stage in the litigation.”
Squyres fails to show good cause for his delay.
Squyres's only reason for failing to amend his complaint
sooner is that he did not have the basis to allege a fraud
claim until after he had deposed Frediani in mid-August 2013.
Squyres, however, had informed the district court back in
September 2012 that there was a possibility he would amend
his complaint to include a fraudulent misrepresentation
claim. Despite this knowledge, Squyres then waited almost a
year to seek leave to amend his complaint. See E.E.O.C.
v. Serv. Temps Inc., 679 F.3d 323, 334 (5th Cir. 2012)
(affirming that the district court had acted within its
discretion in denying leave to amend because the
plaintiff's “reasonable suspicion” of a
potential claim “accent[ed] [the plaintiff's]
inability to explain the delay” in asking for leave to
amend). Even assuming that it was reasonable for Squyres to
delay amending his complaint until after he had deposed
Frediani, his delay in scheduling Frediani's deposition
was self-imposed, as discussed above. See Lozano v. Ocwen
Fed. Bank, FSB, 489 F.3d 636, 644 (5th Cir. 2007)
(affirming the district court's denial of leave to amend
under Rule 15 because the plaintiffs “had been aware of
the factual underpinnings of the [new] fraud claim for some
time, and ... they had not been diligent in pursuing the
In addition to failing to explain his delay (both in seeking
leave to amend and in scheduling Frediani's deposition),
Squyres also fails to demonstrate that the amendment would
have caused no prejudice to Appellees. Because Appellees had
sought no discovery related to Squyres's fraud claim,
allowing amendment would have imposed additional discovery
costs. Moreover, Appellees had already filed their summary
judgment motion by the time Squyres sought leave to amend.
Thus, not only would the district court have needed to reopen
discovery, but it also would have needed to allow another
round of dispositive motions. See Parish v. Frazier,
195 F.3d 761, 764 (5th Cir. 1999) (per curiam) (noting that
this court, even under the more liberal Rule 15 standard,
“more carefully scrutinize[s] a party's attempt to
raise new theories of recovery by amendment when the opposing
party has filed a motion for summary judgment”).
Squyres's final argument is that the district court
abused its discretion because it ignored his quid pro quo
agreement with Appellees. This argument does not help
Squyres. For one, the district court was not bound by the
parties' agreement and instead had “broad
discretion to preserve the integrity and purpose of the
pretrial order.” S & W Enters., L.L.C.
v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th
Cir. 2003) (internal quotation marks and citation omitted);
see also Fed. R. Civ. P. 16(b)(4) (stating that a
scheduling order “may be modified only for good cause
and with the judge's consent ” (emphasis added)).
Next, it was also not an abuse of discretion for the district
court to grant Appellees' motion to amend their answer,
but to deny Squyres's motion to amend his complaint.
Although the deadline to amend the pleadings had also already
passed when Appellees filed their motion for leave to amend,
Appellees had not yet filed their summary judgment motion and
discovery had not yet closed under the new July 21 deadline.
Squyres, on the other hand, did not file his motion until the
end of August, after discovery had ...