United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF DISMISSAL
L. WHITE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Bankers Standard
Insurance Company's Motion to Amend Scheduling Order and
for Leave to Add a New Count to Plaintiffs Complaint or, in
the Alternative, Motion for Leave to Dismiss without
Prejudice (ECF No. 31). Defendant BrassCraft Manufacturing
Company has filed a response in opposition. Plaintiff did not
file a reply to Defendant's response, and the time for
doing so has expired.
March 31, 2016, Plaintiff filed a Petition for Damages in the
Circuit Court of St. Louis County, Missouri. Defendant
removed the Petition to federal court on May 18, 2016. On
July 31, 2017, less than two months before the September 18,
2017 trial date, Plaintiff filed the instant motion. (ECF No.
31) On August 7, 2017, Defendant filed a response in
opposition, asserting that Plaintiff failed to amend the
Complaint within the time frame set forth in the Case
Management Order ("CMO") and is unable to
demonstrate good cause for amending the Complaint at this
late stage. (ECF No. 36) Defendant further contends that the
Court should deny Plaintiffs motion to dismiss, as the motion
is an attempt to evade the Court's jurisdiction and add a
new claim in state court. However, Defendant argues that,
should Plaintiffs motion to dismiss be granted, the Court
should impose the condition that Plaintiff pay
Defendant's reasonable attorney's fees and costs.
Plaintiff has not replied to Defendant's response.
regard to Plaintiffs Motion to Amend Scheduling Order and Add
a New Count to the Complaint, the Court notes that the CMO
set forth the deadline to amend pleadings as September 15,
2016. (ECF No. 11) The CMO states that "the following
schedule shall apply in this case, and will be modified only
upon a showing of exceptional circumstances[.]"
Defendants contend that Plaintiff has failed to show the
requisite exceptional circumstances in this case.
Rule 15(a)(2) of the Federal Rules of Civil Procedure, the
court should freely grant leave to amend a pleading when
justice so requires. "[T]he court has broad discretion
and will only deny leave to amend in order to avoid undue
delay, where there has been bad faith on the part of the
plaintiff, when amendment would be futile or when amendment
would result in unfair prejudice to the defendants."
Swider v. Hologic, Inc., Civil No. 12-1547
(DSD/AJB), 2012 WL 6015558, at *2 (D. Minn. Dec. 3, 2012)
(citation omitted). However, "[w]here a party seeks
leave to amend a complaint after the deadline in the
applicable case management order has passed, the [Federal
Rule of Civil Procedure] 16(b) good-cause standard applies
first, then the 'when justice so requires' standard
of Rule 15(a) applies." Jo Ann Howard & Assoc,
P.C. v. Cassity, No. 4:09-CV-01252-ER, 2014 WL 6607077,
at *4 (E.D. Mo. Nov. 19, 2014). "Good cause requires a
change in circumstances, law, or newly discovered
facts." Id. (citing Hartis v. Chicago Title
Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012)).
the Court finds that Plaintiff is unable to demonstrate good
cause such that amendment of the Complaint is not warranted.
Plaintiff filed its motion nearly one year past the deadline
for amendment of pleadings and less than two months before
trial. Plaintiff provides no reasons for the delay other than
Defendant's expert testified that the water supply
line's failure resulted from corrosion from chlorine
based products and that the expert was not aware of any
warnings to that effect. The motion offers no further
justification for moving to file an Amended Complaint at this
late juncture, and Plaintiff provides no explanation as to
why it failed to amend the Complaint within the deadline set
forth in the CMO or why it could not have alleged a failure
to warn claim earlier. See Freeman v. Busch, 349
F.3d 582, 589 (8th Cir. 2003) (finding district court
properly denied the motion to amend complaint where it was
filed ten months after the court entered the scheduling order
and seven weeks before the close of discovery and where
plaintiff failed to provide a reason why punitive damages
could not have been alleged earlier). Therefore, the Court
will deny Plaintiffs motion to amend the CMO and add a new
count to the Complaint.
alternatively moves to dismiss its law suit without
prejudice. Under Rule 41 of the Federal Rules of Civil
Procedure, "an action may be dismissed at the plaintiffs
request only by court order, on terms that the court
considers proper." Fed.R.Civ.P. 41(a)(2).
"Voluntary dismissals pursuant to Federal Rule of Civil
Procedure 41(a)(2), and the terms of such dismissals, are
addressed to the discretion of the district courts."
Garner v. Union Pac. R.R. Co., No. 4.-15CV00733 AGF,
2016 WL 612765, at *2 (E.D. Mo. Feb. 16, 2016) (citation
omitted). When considering a motion for voluntary dismissal,
"whether the party has presented a proper explanation
for its desire to dismiss; whether a dismissal would result
in a waste of judicial time and effort; and whether a
dismissal will prejudice the defendants. Likewise, a party is
not permitted to dismiss merely to escape an adverse decision
nor to seek a more favorable forum."
Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212,
1213-14 (8th Cir. 2011) (quoting Hamm v. Rhone-Poulenc
Rorer Pharm., Inc., 187 F.3d 941, 950 (8th Cir. 1999)).
Plaintiff sets forth its reason in the motion for leave to
dismiss, asserting that the failure to warn claim was
discovered through the deposition of Defendant's expert.
Plaintiff requests that the Court dismiss the action without
prejudice to allow Plaintiff to re-file in state court under
the $75, 000 limit for federal jurisdiction. (ECF No. 31) The
Court finds that the cause of action should be dismissed, as
the Court has not yet addressed the pending motion for
summary judgment, and diversity jurisdiction may be lacking.
However, the Court also finds that the imposition of fees and
costs as a condition of dismissal is appropriate, as
Plaintiff intends to pursue the same case with a new count in
state court, causing hardship to Defendant.
granting a voluntary dismissal, a court may, in its
discretion, award costs to the defendant that were incurred
in defending the action prior to the voluntary
dismissal." Johnson v. Int'l Bhd. Of Elec.
Workers, Local I, No. 4:10CV2111 CDP, 2012 WL 368713, at
*2 (E.D. Mo. Feb. 3, 2012) (citing Sequa Corp. v.
Cooper, 245 F.3d 1036, 1038 (8th Cir. 2011)). This
includes imposing the condition that the plaintiff pays
reasonable attorney's fees incurred by defendant in
defending the suit. Id. (citation omitted). The
Eighth Circuit "has held that under certain
circumstances, it is an abuse of discretion for a district
court not to condition a voluntary dismissal upon plaintiffs
payment of costs and attorney's fees if the case is
refiled." Belle-Midwest, Inc. v. Missouri Prop.
& Cas. Ins. Guar. Ass 'n, 56 F.3d 977, 978 (8th
Cir. 1995) (citation omitted). "However, the district
court may deduct from such an award 'any expenses [the
defendant] incurred in the instant action for work that can
be reused in the subsequent litigation.'" Garner
v. Union Pac. R.R. Co., No. 4T5CV00733 AGF, 2016 WL
612765, at *3 (E.D. Mo. Feb. 16, 2016) (quoting
Pruiett v. Doe, No. 4T2-CV-1813-SPM, 2013 WL
1342369, at*3(E.D. Mo. Apr. 3, 2013)).
the Court finds that an award of costs and attorney's
fees is warranted. The case has been pending for over a year,
and substantial discovery has been conducted. After failed
mediation and a Court Order directing Plaintiff to respond to
Defendant's Supplemental Statement of Uncontroverted
Facts, Plaintiff filed the present motion to amend or to
dismiss. Defendant incurred costs in defending this action
before Plaintiff filed the motion for voluntary dismissal. In
the event Plaintiff refiles this or a similar action, the
Court will award Defendant its costs and attorney's fees,
less any expenses incurred for work that can be reused in the
subsequent litigation, as a condition of dismissal. Sequa
Corp., 245 F.3d at 1038; Garner, 2016 WL
612765, at *3.
IT IS HEREBY ORDERED that Plaintiffs Motion
to Amend Scheduling Order and for Leave to Add a New Count to
Plaintiffs Complaint or, in the Alternative, Motion for Leave
to Dismiss without Prejudice (ECF No. 31) is
DENIED as to the Motion to Amend and
GRANTED as to the Motion to Dismiss without
IS FURTHER ORDERED that as condition of dismissal
Defendant shall submit a bill of costs and an itemization of
attorney's fees consistent with this Order within ten
(10) days of ...