Zoss v. Protsch et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
FREDERICK M.ZOSS,
Plaintiff 4:20-cv-4211
vs. MEMORANDUM
AND ORDER
GREG PROTSCH AND MUMFORD
and PROTSCH,LLP,
Defendants
Pending before the Court is Plaintiffs motion to amend his complaint to add
a claim for negligent infliction of emotional distress. (Doc. 31). Defendants
oppose the motion.(Doc. 44). Plaintiff has replied. (Doc. 50).
Background
The factual background of this case has been summarized by the Court in
two previous Orders(Doc. 13, Doc. 62). The claim is for legal malpractice and
breach of fiduciary duty. (Doc. 1). Plaintiff alleges Defendant Protsch committed
malpractice in his representation of Plaintiff in connection with the sale of cattle.
Defendant asserts that Plaintiff caused his own losses by entering into an ill-
advised sale before contacting an attorney for legal advice and assistance.
The procedural background ofthe case is as follows. After the Court denied
Defendants' motion to dismiss on April 8, 2021,(Doc. 13), the parties proceeded
with discovery. The initial scheduling order of June 18, 2021,(Doc. 17), was
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amended at the request ofthe parties(Doc. 19, 20). A second amended scheduling
order was granted at the request ofthe parties on May 9, 2022,(Doc. 25), as was a
third amended scheduling order which was granted on August 3, 2022.(Doc. 28).
The latter moved the trial date from October 24, 2022, to August 15, 2023. This
followed the parties' unsuccessful mediation in July 2022, and yielded the cross-
motions for partial summary judgment(Doc. 30, 37)granted in Defendants' favor
(Doc. 62). A fourth amended scheduling order was jointly requested and filed on
November 8, 2022, extending deadlines for discovery and motions, but
maintaining the August 2023 trial date.(Doc. 48). The deadline of July 1, 2021,to
amend pleadings remained unchanged from the first scheduling order.(Doc. 17).
Meanwhile, Plaintiff filed his motion to amend the complaint(Doc. 31)on October
7, 2022, as a result of discussions at the mediation.(Doc. 32, 50).
Legal Standard
A party who moves to amend the pleadings prior to trial may amend with
leave of court, and the court "should freely give leave when justice so requires."
Fed. R. Civ. P. 15(a)(2). Rivera v. Bank ofAmerica, 993 F. 3d 1046, 1051 (8th
Cir. 2021)(quoting standard); Roeman v. United States, 2021 WL 2351684, *2
(D.S.D. 2021). In the Eighth Circuit, however, if a party seeks to amend a
pleading and is outside the scheduling order's deadline for amendment,the party
must comply with the standard ofFed. R. Civ. P. 16, which provides as follows:
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"Modifying a Schedule. A schedule may be modified only for good cause and
with the judge's consent." Fed. R. Civ. Pro. 16(b)(4). As the court explained in
Sherman v. Winco Fireworks, Inc.,"the party must show cause to modify the
schedule" and meeting the good cause standard "is not optional." 532 F.3d 709,
716 (8th Cir. 2008)(citing Popoalii v. Corr. Med. Servs., 512 F. 3d 488,497(8th
Cir. 2008)). The Sherman court further explained that the "primary measure of
good cause is the movant's diligence in attempting to meet the [scheduling] order's
requirements." Id.(quoting Rahn v. Hawkins,464 F. 3d 813, 822(8th Cir. 2006)
(overruled on other grounds)). See also Albright as Next Friend ofDoe v.
Mountain Home School District, 926 F.3d 942, 951 (8th Cir. 2019)(discussing
requirement to comply with deadlines).
Apart from potential disruption ofthe scheduling order, courts have
examined additional factors that should inform the decision whether to grant leave
to amend. As the Eighth Circuit has explained,"The classic 'good reasons' for
rejecting an amendment are: '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....'" Popp Telcom v. American
Sharecom, Inc., 210 F.3d 928,943(8th Cir 2000)(quoting Thompson-El v.
Jones, 876 F.2d 66,67(8th Cir.1989)(citing Fomon v. Davis, 371 U.S. 178, 182
(1962)). See also Bell v. Allstate Life Ins. Co., 160 F.2d 452,454(8th Cir.1998);
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Yankton Sioux Tribe v. U.S. Army Corps ofEngineers, 497 F.Supp.2d 985,987
(D.S.D. 2007).
Analysis
1. Good cause
Plaintiff argues he satisfies the good cause standard, which Defendants
dispute. The Court notes that Plaintiff and Defendants have been diligent in
complying with all scheduling orders other than the possible amendment under
consideration. Plaintiff has made joint motions with Defendants to amend the
scheduling orders and the court is unaware of any tactics involved in discovery that
either party has employed to disrupt the process. Plaintiff has joined with
Defendants in an effort to mediate their dispute. Thus,Plaintiff appears to satisfy
the concerns revolving around scheduling orders articulated by Sherman.
The motion to amend was made 15 months after the time to amend expired.
The Court recognizes that although this is a significant delay, the schedule for trial
is unaffected. As the Eighth Circuit has stated,"Delay alone is not enough to deny
a motion to amend; prejudice to the nonmovant must also be shown." Bediako v.
Stein Mart, 354 F.3d 835, 841 (8th Cir. 2004)(quoting Bell, 160 F.3d at 454). See
also Dennis v. DillardDept. Stores, Inc., 207 F.3d 523,525 (8th Cir. 2000);
Yankton Sioux Tribe, 497 F.Supp.2d at 988. For example, in Thompson-El,the
motion to amend was filed two weeks before trial was to start, and added claims.
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defendants, and damages, making it impossible to proceed without additional
discovery and a minimum two-month trial delay. 876 F.2d at 68.
Plaintiff endeavors to add a cause of action which in his view, more
accurately describes the issues at bar. Plaintiff asserts that Defendants have had
notice ofthe essence ofthe claim based on the complaint and answer to
Defendants' Interrogatory #18.(Doc. 50,PgID 528). The Court disagrees with
Plaintiffs assertion that Defendants essentially conceded that Plaintiff could plead
a negligent infliction of emotional distress claim (Doc. 50,PgID 529, citing Doc.
30-1,PgID 161). Nevertheless,the Court finds the accurate determination ofthe
issues in the case satisfies the good cause standard and proceeds to address the
additional factors that would warrant denial ofthe motion to amend, including
possible bad faith or dilatory motive, futility ofthe amendment, prejudice to the
opponent, failure to cure deficiencies, or other germane factors. Popp, 210 F.3d at
943.
2. Additional factors
a. Bad faith or effort to delay
There is no evidence that Plaintiff is pursuing the amendment in bad faith or
is attempting to delay trial. Plaintiffs position is that the timing ofthe amendment
and any resulting discovery will be such that trial can proceed as scheduled.(Doc.
50,PgID 535). Plaintiff has identified the experts for Plaintiffs claims alleging
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negligent infliction ofemotional distress as the treating physicians,(id., PgID 530),
so there should be little difficulty in arranging for depositions and any relevant
discovery. To date, the documents produced to support Plaintiffs claim are
minimal, thus avoiding issues of complexity or volume. There is no indication
Plaintiff considered filing the motion earlier and purposely delayed. Cheval
International V. SmartpakEquine, LLC,2017 WL 1025801, *4(D.S.D. 2017).
b. Futility
The test for futility is whether the claim offered by way of amendment can
survive a motion under Fed. R. Civ. P.12(b)(6). Plaintiff must plead "enough facts
to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S.
662,678(2009)(quoting Re// Corp. v. Twombly, 550 U.S. 544, 570(2007)).
The Court must assume all facts alleged in the complaint are true. Coleman v.
Watt, 40 F.3d 255,258 (8th Cir. 1994). See also Yankton Sioux Tribe v. U.S. Dept.
ofHealth & Human Services, 496 F. Supp. 2d 1044(D.S.D. 2007); Broin and
Associates, Inc. v. Genencor Intern., Inc., 232 F.R.D. 335,338(D.S.D. 2005). It
should be dismissed only if"it asserts clearly frivolous claims or defenses."
Roemen,2021 WL 2351684, *7(quoting Becker v. Univ. ofNeb. at Omaha, 191
F.3d 904,908 (8th Cir. 1999)).
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At this stage, Plaintiff is not required to prove his case by a preponderance
and is required only to plead enough to survive the Fed. R. Civ. P. 12(b)(6)
standard. Plaintiff has met that burden.
c. Prejudice
Factors that can establish prejudice in the context of a motion to amend
include "re-opening discovery with additional costs, a significant postponement of
the trial, and a likely major alteration in trial tactics and strategy." Roemen, 2021
WL 2351684, *6(quoting ifoz/ov v. Assoc. Wholesale Grocers, Inc., 818 F.3d 380,
395 (8th Cir. 2016)). In this case, there may be limited re-opening of discovery to
address the treating physicians who support Plaintiffs amended claim.
Postponement oftrial is not anticipated, as indicated above. Trial strategy is
unlikely to be altered significantly. There is no indication from Defendants of
specific harm to their case, as might be the situation if witnesses or evidence would
become unavailable.
d. Other considerations
The case before the Court is unlike cases where denial of the motion to
amend has been deemed appropriate. Thus, Plaintiff has not previously failed to
cure any deficiencies, as none have been the subject of an order from this Court.
Popp,210 F.3d at 983. Plaintiff has not attempted to amend claims that have been
dismissed. Yankton Sioux Tribe, 497 F.Supp.2d at 988. Plaintiff has endeavored
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to provide a rationale for his motion to amend and has provided a proposed
complaint. Rivera, 993 F.3d at 1051 (citing Misischia v. St. John's Mercy Health
Sys., 457 F.3d 800, 805 (8th Cir. 2006)). This is not a post-judgment effort to
obtain relieffrom judgment. Peterson v. The Travelers Indemnity Company,867
F.3d992,997(8th Cir. 2017).
Conclusion
The Court has determined that Plaintiff meets the standard of good cause to
amend the complaint. It is not anticipated that amendment will disrupt the existing
schedule, and there is no indication of bad faith or dilatory tactics on Plaintiffs
part. The amendment does not appear futile. Defendants will not be unfairly
prejudiced if the amendment is permitted.
Accordingly,IT IS ORDERED that
1. Plaintiffs motion for leave to amend the Complaint is granted;
2. That the amended complaint will be filed one week after entry of this Order.
Dated this day of January, 2023.
BY THE COURT:
(J2i
iscrw/rence L. Piersol
United States District Judge
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ATTEST:
MATTHEW W.THELEN,CLERK
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