Hruska's Grocery Company v. Hruska's Inc et al

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
HRUSKA’S GROCERY COMPANY,
Plaintiff,
v.
HRUSKA’S INC. d/b/a HRUSKA’S
KOLACHES; HRUSKA’S WEST JORDAN,
LLC; HRUSKA’S SUGARHOUSE, LLC;
HRUSKA’S PROVO, LLC; HRUSKA’S
OREM, LLC; HRUSKA’S MANAGEMENT
GROUP, INC.; and HRUSKA’S
AMERICAN FORK, LLC,
Defendants.
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT
(DOC. NO. 80)
Case No. 2:24-cv-00769
Chief District Judge Jill N. Parrish
Magistrate Judge Daphne A. Oberg
Hruska’s Grocery Company brought this trademark action against seven
companies, originally claiming they infringed both its registered word marks and its
design marks.1 Later, Hruska’s Grocery amended its complaint to remove claims
relating to its design marks.2 Now, Hruska’s Grocery moves for leave to file a second
amended complaint to add new claims under Utah statutes and common law.3 The
motion is denied. The motion is untimely, Hruska’s Grocery fails to show good cause
1 (See Compl., Doc. No. 1.)
2 (First Am. Compl., Doc. No. 64.)
3 (Pl.’s Mot. for Leave to File Second Am. Compl. (Mot.), Doc. No. 80.)
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for the delay in filing it, and allowing the proposed amendment at this stage would
unduly prejudice Defendants.
BACKGROUND
Hruska’s Grocery filed this action in October 2024, asserting federal claims under
the Lanham Act4 for trademark infringement and unfair competition, and an unjust
enrichment claim under Utah common law.5 In its original complaint, Hruska’s Grocery
alleged infringement of both word marks and design marks.6
Under the scheduling order, the deadline to file a motion to amend pleadings was
May 5, 2025.7 Approximately two weeks before that deadline, Hruska’s Grocery moved
for leave to file its first amended complaint, seeking to remove its design mark claims.8
The court granted the motion on August 12,9 and Hruska’s Grocery filed its first
amended complaint the same day.10 On August 22, at the parties’ joint request, the
4 15 U.S.C. §§ 1114, 1125(a).
5 (Compl. ¶¶ 31–46, Doc. No. 1.)
6 (Id. ¶¶ 19, 24–25.)
7 (Scheduling Order, Doc. No. 36.) This scheduling order has since been amended as
to other deadlines, but not as to the deadline to move to amend pleadings. (See Doc.
Nos. 59 & 81.)
8 (Pl.’s Mot. [for] Leave to File First Am. Compl., Doc. No. 40.)
9 (Mem. Decision & Order Granting Pl.’s Mot. for Leave to File First Am. Compl., Doc.
No. 61.)
10 (First Am. Compl., Doc. No. 64.)
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court stayed the case for forty-five days to permit settlement discussions.11 During the
stay, in mid-September, three new attorneys entered appearances for Hruska’s
Grocery.12 Hruska’s Grocery’s prior counsel also remained on the case.
Hruska’s Grocery filed the instant motion for leave to file a second amended
complaint on October 6, the day the stay expired.13 With its proposed complaint,
Hruska’s Grocery seeks to add new claims for common law trademark infringement,
common law unfair competition, and unfair competition under Utah Code §§ 13-5a-101–
103.14 The proposed amended pleading also adds new allegations in support of the
existing claims,15 as well as requests for injunctive relief and punitive damages.16
11 (Order Granting Stip. Mot. to Stay All Case Deadlines for 45 Days, Doc. No. 71.) This
order stayed deadlines in the first amended scheduling order entered July 31, 2025,
(Doc. No. 59), and other deadlines not at issue here. But as noted, the first amended
scheduling order did not alter the deadline to move to amend pleadings, which had
already expired on May 5, 2025. (See Scheduling Order, Doc. No. 36.)
12 (See Doc. Nos. 75–77.)
13 (Mot., Doc. No. 80.)
14 (Ex. 2 to Mot., Redlined Proposed Second Am. Compl., Doc. No. 80-2 at 34–37.)
Citations to this document refer to the CM/ECF pagination.
15 (See, e.g., id. at 11–12 (new allegations that Hruska’s Grocery intended to resume
kolache sales after discontinuing those sales); id. at 24 (new allegations that
Defendants knew of Hruska’s Grocery’s use of the mark before they used the mark).)
16 (Id. at 37–39.)
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The same day, the parties filed a stipulated motion to amend the scheduling
order, seeking an extension of fact discovery and subsequent deadlines.17 The court
granted the motion, setting a new fact discovery deadline of March 13, 2026.18
LEGAL STANDARDS
Under Rule 15 of the Federal Rules of Civil Procedure, unless an amendment is
allowed as a matter of course, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.”19 Rule 15 instructs courts to “freely give
leave when justice so requires.”20 The purpose of this rule is “to provide litigants the
maximum opportunity for each claim to be decided on its merits rather than on
procedural niceties.”21 “Refusing leave to amend is generally only justified upon a
showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory
motive, failure to cure deficiencies by amendments previously allowed, or futility of
amendment.”22 Prejudice to the opposing party is the “most important” factor in
deciding whether to permit amendment.23
17 (Doc. No. 79.)
18 (Second Am. Scheduling Order, Doc. No. 81.)
19 Fed. R. Civ. P. 15(a)(2).
20 Id.
21 Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotation
marks omitted).
22 Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (citation omitted).
23 Minter, 451 F.3d at 1207.
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In addition to satisfying the Rule 15(a) standard, a party seeking leave to amend
pleadings after the deadline has passed must also demonstrate good cause to modify
the scheduling order under Rule 16(b)(4) of the Federal Rules of Civil Procedure.24
This requires the movant to show the “scheduling deadlines cannot be met despite [the
movant’s] diligent efforts.”25 The movant must “provide an adequate explanation for any
delay.”26 “[G]ood cause is likely to be found when the moving party has been generally
diligent, the need for more time was neither foreseeable nor its fault, and refusing to
grant the continuance would create a substantial risk of unfairness to that party.”27 The
good cause requirement may be satisfied, for example, “if a plaintiff learns new
information through discovery or if the underlying law has changed.”28 But new claims
are barred if the plaintiff “knew of the underlying conduct but simply failed to raise” the
claims.29
24 Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240–41 (10th
Cir. 2014); see also Fed. R. Civ. P. 16(b)(4) (providing that a scheduling order “may be
modified only for good cause and with the judge’s consent”).
25 Gorsuch, Ltd., B.C., 771 F.3d at 1240 (alteration in original) (citation omitted).
26 Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 988 (10th Cir. 2019) (citation
omitted).
27 Id. (citation modified).
28 Gorsuch, Ltd., B.C., 771 F.3d at 1240.
29 Id.
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ANALYSIS
Because Hruska’s Grocery filed its motion to amend after the deadline for such
motions, Rule 16’s “good cause” requirement is addressed first. The Rule 15 factors
are addressed next.
Rule 16
Hruska’s Grocery has not shown good cause to move to amend its complaint five
months after the deadline in the scheduling order. It offers no reason why the new
allegations and claims could not have been raised in the original complaint (or first
amended complaint). Indeed, Hruska’s Grocery acknowledges the “new allegations and
claims are all based on the same factual situation as in Hruska’s original and First
Amended Complaints.”30 This suggests Hruska’s Grocery knew of the underlying
conduct but simply failed to raise the claims—meaning the new claims are barred.31
Hruska’s Grocery does not assert in its motion that the proposed amendments
are based on a change of law or on new information learned in discovery. For the first
time, in its reply, Hruska’s Grocery argues it based certain proposed amended
allegations on new information. Specifically, Hruska’s Grocery asserts Defendants’
“activities are continuing to create [consumer] confusion, including confusion that
Hruska’s first became aware of after the filing of the First Amended Complaint.”32 And it
30 (Mot. 5, Doc. No. 80.)
31 See Gorsuch, Ltd., B.C., 771 F.3d at 1240.
32 (Reply 7, Doc. No. 87 (emphasis omitted).)
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describes several incidents of consumer confusion “evidenced in Defendants’
production of their communications with customers.”33 But Hruska’s Grocery already
alleged consumer confusion in prior iterations of the complaint,34 and new allegations of
consumer confusion make up only a small portion of the proposed amendments.
Hruska’s Grocery does not demonstrate it based any of the proposed new claims—or
any other new allegations—on recently discovered information. The fact that discovery
may have revealed additional discrete instances of consumer confusion does not justify
the filing of a second amended complaint with new claims.
Hruska’s Grocery argues good cause exists for the untimely motion because
Hruska’s Grocery filed it only “ten days of active litigation” after the filing of the first
amended complaint and immediately after the stay for settlement negotiations expired.35
Hruska’s Grocery suggests the court’s reasons for allowing the first amendment apply
equally to this second proposed amendment—including the fact that there is time left in
the discovery period.36 But the timing and circumstances of the two amendments
fundamentally differ. Crucially, Hruska’s Grocery timely filed its first motion to amend
before the deadline for such motions expired, meaning it was not required to show
“good cause” under Rule 16 for an untimely motion. Further, as the court noted in
33 (Id. at 3–4.)
34 (See, e.g., First Am. Compl. ¶¶ 28–29, 35, 40, 45, Doc. No. 64.)
35 (Mot. 5, Doc. No. 80.)
36 (See id. at 6.)
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granting the prior motion, the first amended complaint narrowed the claims in this case
based on information Hruska’s Grocery learned in discovery.37 By contrast, the
proposed second amended complaint adds new state-law claims based on conduct
Hruska’s Grocery knew about from the beginning of the case, rather than newly
discovered information. As explained below, where the parties have already conducted
substantial discovery, adding claims is prejudicial to Defendants. Under these
circumstances, the fact that Hruska’s Grocery filed the instant motion to amend only ten
“active litigation” days after the first amended complaint does not support a finding of
good cause. Hruska’s Grocery does not explain why it could not have brought these
claims before the amendment deadline expired—or even at the outset of the case.
According to Hruska’s Grocery, the proposed amendments were prompted by
new counsel (retained during the stay), who “promptly reviewed the Complaint and
identified areas for amendment.”38 But retention of new counsel does not justify the
untimely amendment here. Hruska’s Grocery relies on Mackey v. Watson,39 an
unpublished decision in which a district court found good cause for an untimely
amendment based, in part, on a change in counsel. But Mackey is distinguishable. In
Mackey, the defendants sought to correct an inaccurate admission in their answer,
37 (See Mem. Decision and Order Granting Pl.’s Mot. for Leave to File First Am.
Compl. 4, Doc. No. 61.)
38 (Mot. 5–6, Doc. No. 80.)
39 No. 17-cv-01341, 2019 U.S. Dist. LEXIS 130435 (D. Colo. Aug. 5, 2019)
(unpublished).
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which new counsel identified when he was retained after the amendment deadline
expired.40 The court found good cause under Rule 16, where prior counsel mistakenly
made the admission without consulting the defendants, and new counsel promptly
identified the error and moved to correct it.41 But here, Hruska’s Grocery does not
argue the proposed amendment is necessary to correct an inaccuracy. Moreover,
Hruska’s Grocery did not change counsel; it merely added new attorneys to assist
counsel who have represented it from the outset. Under these circumstances, the
addition of new counsel does not justify the untimely amendment.
For all these reasons, Hruska’s Grocery has not shown good cause under
Rule 16 to permit a second amended complaint after the amendment deadline.
Rule 15
Leave to amend must also be denied based on the Rule 15 factors. First,
Hruska’s Grocery unduly delayed bringing its motion. Undue delay is present when “the
party filing the motion has no adequate explanation for the delay.”42 As noted above,
Hruska’s Grocery does not explain why it could not have brought the proposed new
allegations and claims at the outset of this case.
40 See id. at *16–18.
41 See id. at *16–18, 27–29.
42 Minter, 451 F.3d at 1206 (citation omitted); see also id. at 1205 n.4 (noting the “rough
similarity between the ‘good cause’ standard of Rule 16(b) and [the] ‘undue delay’
analysis under Rule 15”).
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Second, permitting the proposed amendment at this stage would unduly
prejudice Defendants. Hruska’s Grocery asserts Defendants will not suffer prejudice
because the new allegations and claims are based on the same factual situation as the
prior claims—namely, Defendants’ infringing use of the HRUSKA’s trademark.43
Hruska’s Grocery argues all prior discovery relates to both the new and existing claims,
and the current schedule leaves ample time for any additional discovery Defendants
may need.44 But Defendants point out the new claims have different elements and
remedies than the original claims.45 And Hruska’s Grocery does not dispute this,
despite characterizing the new state-law claims as “analogous” and “highly similar” to
the federal infringement and unfair competition claims.46 Defendants also note they
have already taken a key witness deposition and used all their allotted written
discovery.47 While Hruska’s Grocery indicates it is amenable to reopening the
deposition and permitting additional written discovery,48 this would not eliminate the
prejudice. Defendants have shown they conducted substantial discovery in reliance on
the existing pleadings. It would be unduly prejudicial to require them to retake
43 (Mot. 4–5, Doc. No. 80.)
44 (Id.)
45 (Defs.’ Mem. in Opp’n to Pl.’s Mot. for Leave to File Second Am. Compl. (Opp’n) 9,
Doc. No. 84.)
46 (See Reply 4–5, Doc. No. 87.)
47 (Opp’n 8–9, Doc. No. 84.)
48 (See Reply 5–6, Doc. No. 87.)
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depositions and pursue additional written discovery at this stage to defend against
claims which could have been brought at the outset of the case.
Because the proposed amendments are unduly delayed and prejudicial at this
stage, the court need not address Defendants’ argument that they are futile. Likewise, it
is immaterial that the other factors justifying denial of amendment are not present.49
Leave to amend must be denied based on undue delay and undue prejudice—and
Hruska’s Grocery’s failure to show good cause under Rule 16.
CONCLUSION
Because the motion is untimely and amendment at this stage would be unduly
prejudicial, Hruska’s Grocery’s motion for leave to amend50 is denied.
DATED this 7th day of January, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
49 There is no evidence of bad faith or dilatory motive, and Hruska’s Grocery has not
failed to cure deficiencies by amendments previously allowed.
50 (Doc. No. 80.)
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