United States District Court, E.D. Missouri, Eastern Division
LEVINE HAT CO., on behalf of itself and all other similarly situated, Plaintiff,
INNATE INTELLIGENCE, LLC, et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE.
filed this action on July 13, 2016 against two defendants and
alleged violations of the Telephone Consumer Protection Act,
47 U.S.C. § 227 (“TCPA”). On January 3,
2017, plaintiff amended the complaint to add an additional
nine defendants, including defendant Profax, Inc. That same
date was the deadline for amended pleadings under this
case's Case Management Order. Profax filed its Answer and
Affirmative Defenses on February 24, 2017. This Court
certified a class on February 9, 2018 and then entered a
Phase II CMO on March 16, 2018. Profax substituted new
counsel on May 22, 2018. On June 13, 2018, Profax moved for
leave to file an Amended Answer and Affirmative Defenses to
plaintiff's First Amended Class Action Complaint. (#130.)
Plaintiff opposes the motion.
Rule of Civil Procedure 16(b)(4) requires that a party
seeking to amend the pleadings after the scheduling deadline
for doing so must show good cause. If good cause is shown,
the Court must then consider whether leave should be granted
under Rule 15(a)(2).
Court must consider defendant's diligence in attempting
to meet the scheduling order's requirements, taking into
consideration, for example, changes in the law, newly
discovered facts, or other changed circumstances. Sherman
v. Winco Fireworks, Inc., 532 F.3d 709, 718 (8th Cir.
points out that it was never given an opportunity to amend
its pleading in the time allowed by the CMO because it was
added as a party on the last permissible day under the CMO.
Profax adds that discovery will not close until August 31,
2018, and Profax's Rule 30(b)(6) deposition had not at
that time taken place.
seeks to assert lack of jurisdiction over the
non-Missouri-resident class members under a line of cases
that have evolved since the United States Supreme Court's
decision in Bristol-Myers Squibb Co. v. Superior Court of
California, San Francisco City, 137 S.Ct. 1773, 1781
(2017) (“BMS”). In BMS, the
Supreme Court held that California courts did not have
specific jurisdiction over a non-resident defendant with
respect to non-resident plaintiffs' claims because the
defendant did not have sufficient contacts with California.
Id. Some district courts have held that BMS
also applies to putative class actions. See DeBernardis
v. NBTY, Inc., No. 17-C-6125, 2018 WL 461228, at *1-*2
(N.D. Ill. Jan. 18, 2018); Practice Mgmt. Support Servs.,
Inc. v. Cirque du Soleil, Inc., ___ F.Supp.3d___, No. 14
C 2032, 2018 WL 1255021 (N.D. Ill. Mar. 12, 2018); Webb
v. Dr Pepper Snapple Group, Inc., 4:17-00624-CV-RK, 2018
WL 1990509, at *1 (W.D. Mo. Apr. 26, 2018). But see In Re
Morning Song Bird Food Litig., No. 12CV01592 JAH-AGS,
2018 WL 1382746, at *5 (S.D. Cal. Mar. 19, 2018) (finding
BMS inapplicable to class actions).
also seeks to amend its affirmative defense of lack of
standing --- a defense that it raised in its original Answer
without actually using the word “standing.”
Profax similarly seeks to add detail to its affirmative
defense pertaining to Profax's argument that plaintiff
has not met the requirements of Rule 23. Although Profax
acknowledges that the class has already been certified,
Profax states that its amendment is pertinent to a class
Profax adds constitutional defenses to its affirmative
defenses, a laches defense, prior business relationship and
consent defenses, unclean hands and waiver/estoppel defenses.
district court may deny a motion to amend if “there are
compelling reasons such as 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 the amendment.”
Sherman, 532 F.3d at 715. Here, there are no such
indications. Although some of Profax's defenses have been
unsuccessful in other cases, ultimately there is no prejudice
to plaintiff in light of the fact that discovery remains open
--- and Profax had not yet been deposed at the time of
amendment. There remains plenty of time until trial, as well,
allowing for an extension of deadlines to the extent more
discovery time is required. Notably, plaintiff does not
articulate what additional discovery it would require as a
result of the amendment, and “an adverse party's
burden of undertaking discovery, standing alone, does not
suffice to warrant denial of a motion to amend a
pleading.” Dennis v. Dillard Dept. Stores,
Inc., 207 F.3d 523, 526 (8th Cir. 2000) (internal
quotation omitted). See also Painters Dist. Council No.
58 v. RDB Universal Services, LLC, 414CV01812ERW, 2015
WL 4389978, at *3 (E.D. Mo. July 15, 2015) (allowing
amendment of answer where discovery was still open, four
months remained until the dispositive motion deadline, and
eight months remained until trial).
IT IS HEREBY ORDERED that Profax's
motion for leave to file an Amended Answer and Affirmative
Defenses to plaintiff's First ...