United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants Kingstar Holdings,
LLC, Carsure LLC, and CS VSC, LLC's motion for
reconsideration of the Court's February 28, 2018 order
granting Plaintiff leave to file its second amended
complaint. (ECF No. 69). Plaintiff NRRM, LLC opposes
Defendants' motion for reconsideration. (ECF No. 75).
Factual and Procedural Background
original complaint, Plaintiff alleged that Plaintiff markets
and sells vehicle service contracts under the marks CARSHIELD
and CARSHIELD.COM. (ECF No. 33 at ¶ 3). Defendants, also
in the business of marketing and selling vehicle service
contracts, do so under the name CARSURE. (Id. at
¶ 4). According to Plaintiff, Defendants' vehicle
service contracts “directly compete with those sold by
[Plaintiff]” and Defendants' marks are
“confusingly similar” to Plaintiff's and
therefore “likely to cause confusion amongst
consumers[.]” (Id. at ¶¶ 35-36).
Plaintiff's original complaint alleged the following
three counts: (1) trademark infringement under the Lanham
Trademark Act of 1986 (“Lanham Act”), 15 U.S.C.
§ 1114; (2) trademark infringement and unfair
competition under the Lanham Act, 15 U.S.C. § 1125(a);
and (3) trademark infringement and unfair competition under
Mo. Rev. Stat. §§ 417.005-417.066 and Missouri
common law. (Id.).
Court entered a case management order on October 5, 2017,
setting the deadline for motions for joinder of additional
parties or amendment of pleadings on December 1, 2017. (ECF
No. 23). On November 13, 2017, Plaintiff moved for leave to
file a first amended complaint. (ECF No. 31). Plaintiff
explained that Defendants Kingstar Holdings and CarSure, LLC
recently informed Plaintiff that “an owner of the
allegedly infringing trademarks has changed, and that a
defendant assigned ownership to a company named in this
lawsuit, namely CS VSC, LLC.” The Court granted
Plaintiff's motion, and Plaintiff filed a first amended
complaint adding CS VSC, LLC as a defendant. (ECF Nos. 32
January 30, 2018, the parties filed a joint motion to amend
the case management order “to provide all Parties
sufficient time to finalize discovery and to prepare their
claims and defenses.” (ECF No. 52). Among other
changes, the parties proposed March 1, 2018 as the amended
deadline for “motions to join other parties or to amend
the pleading, absent a showing of good cause[.]” (ECF
No. 52-1). The Court entered an amended case management order
designating February 1, 2018 as the deadline for such motions
and August 7, 2018 as the deadline for completing discovery.
(ECF No. 54).
filed a motion for leave to file a second amended complaint
on February 27, 2018. (ECF No. 65). In its motion, Plaintiff
stated that, while “conducting independent research
concerning Defendants' use of the CARSURE trademarks,
” it discovered Defendants' alleged false
advertising activities. (Id.). Plaintiff sought to
amend the complaint to add a claim for false advertising in
violation of the Lanham Act, 15 U.S.C. § 1125(a),
alleging that Defendants falsely advertised their vehicle
service contracts as “extended warranty
coverages” on www.carsure.com. (ECF No. 65-2). In
support of its motion for leave to file a second amended
complaint, Plaintiff averred that permitting it to file the
second amended complaint would not cause prejudice to
Defendants “as this litigation is still in its early
stages, ” “the new Defendant was only added three
months ago, ” and “Defendants have ample time
left to develop their defenses to Count 4 [false advertising]
because discovery does not close until August 7, 2018.”
(Id.). The Court granted Plaintiff's motion for
leave to file a second amended complaint on February 28,
2018. (ECF No. 67).
move for reconsideration of the Court's February 28, 2018
order, requesting the Court vacate the order and deny
Plaintiff's motion for leave to file its second amended
complaint. (ECF No. 69). Defendants argue that Plaintiff did
not demonstrate good cause under Rule 16(b) for seeking leave
to amend the complaint beyond the February 1, 2018 deadline
for amendment of pleadings. Defendants further assert that
the untimely-filed second amended complaint “will
result in undue prejudice to Defendants” and therefore
does not satisfy the more liberal Rule 15(a) standard for
leave to amend. Plaintiff opposes Defendants' motion for
reconsideration, arguing that it diligently amended the
claims “as soon as it discovered new facts that gave
rise to the claim for false advertising” and the
amendments will not cause Defendants undue prejudice. (ECF
15(a) provides that a “court should freely give leave
[to amend a pleading] when justice so requires.”
Fed.R.Civ.P. 15(a)(2). “Under the liberal amendment
policy of Federal Rule of Civil Procedure 15(a), a district
court's denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad
faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the non-moving party can be
demonstrated.” Roberson v. Hayti Police Dept.,
241 F.3d 992, 995 (8th Cir. 2001) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
when a party seeks to amend a pleading after the deadline in
the applicable case management order, Rule 16(b) requires
“a showing of good cause.” Kmak v. American
Century Cos., Inc., 873 F.3d 1030, 1034 (8th Cir. 2017)
(quoting Williams v. TESCO Servs., Inc., 719 F.3d
968, 977 (8th Cir. 2013)). Good cause requires a change in
circumstance, law, or newly discovered facts. Peterka v.
City of Maplewood, No. 4:14-CV-823 ERW, 2015 WL 2145342,
at *2 (E.D.Mo. May 7, 2015). “The primary measure of
good cause is the movant's diligence.”
Kmak, 873 F.3d at 1034 (quoting Harris v. FedEx
Nat'l LTL, Inc., 760 F.3d 780, 786 (8th Cir. 2014)).
as here, a party seeks leave to amend the pleadings outside
the case management order deadline, a court first considers
whether good cause exists under Rule 16(b)(4). Nestle
Purina Petcare Co. v. The Blue Buffalo Co., Ltd., No.
4:14-CV-859 RWS, 2016 WL 4272241, at *2 (E.D.Mo. Aug. 12,
2016). If good cause is established, a court will consider
whether amendment is proper under Rule 15(a). Id.
(citing Sherman v. Winco Fireworks, Inc., 532 F.3d
709, 716 (8th Cir. 2008)).
instant case, the original case management order set the
deadline for joinder of additional parties or amendment of
pleadings on December 1, 2017. (ECF No. 23). Plaintiff filed
its first amended complaint adding as a defendant CS VSC, LLC
on November 14, 2017 and, on January 11, 2018, it informed
Defendants' counsel during a teleconference that it had
recently discovered facts supporting a false advertising
claim. (ECF Nos. 33, 70, 75). On January 30, 2018, the
parties jointly moved to amend the case management order,
proposing March 1, 2018 as an alternative deadline for
amendment of pleadings, but the Court only extended the
deadline for amendment of pleadings until February 1, 2018.
(ECF Nos. 52, 52-1, 54). Plaintiff filed its motion for leave
to file a second amended complaint on February 27, 2018,
twenty-six days after the February 1, 2018 deadline set forth
in the amended case management order but two days prior to
the parties' jointly proposed deadline of March 1, 2018.
oppose Plaintiff's motion on the ground that the facts
supporting Plaintiff's false advertising claim were
available to Plaintiff when it filed its original complaint
in June 2017 and when it filed its first amended complaint in
November 2017. (ECF No. 70). Defendants argue that the
“factual allegations in support of Plaintiff's
false advertising claim are based off Defendants'
advertisements found on the publicly available CarSure
website, ” which Plaintiff referenced in ...