United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the motion for leave to amend
answer out of time filed by defendants Jason Davis, Cindy
Griffith, and Alan Earls. (Doc. 49). Pro se plaintiff Andrew
Arman opposes the motion.
September 1, 2017, plaintiff filed this civil rights action
against three corrections officers, Jason Davis, Cindy
Griffith, and Alan Earls (collectively
“defendants”), pursuant to 42 U.S.C. § 1983.
Plaintiff filed a first amended complaint on October 16,
2017. (Doc. 10). Defendants filed a timely answer, which did
not include the affirmative defense of qualified immunity.
(Doc. 20). On October 5, 2018, defendants filed a motion for
substitution of counsel, which the Court granted. (Docs. 30,
instant motion, defendants request leave to amend their
answer pursuant to Federal Rule of Civil Procedure 15(a)(2)
to include the affirmative defense of qualified immunity.
Defendants support their motion with two arguments: (1)
“[o]nly after reviewing [the] record of discovery and
upon preparing dispositive motions did [defendants'
counsel] realize that previous counsel to [d]efendants did
not raise the affirmative defense of qualified
immunity” and (2) after reviewing discovery,
“including Interrogatories, Requests for Admissions,
and a deposition of the [p]laintiff on March 11, 2019,
” defendants' counsel “determined that the
discovered facts would lead to the application of the
affirmative defense of qualified immunity.” (Doc. 49).
Defendants subsequently filed a motion for summary judgment,
partially supported by the affirmative defense of qualified
immunity. (Doc. 53).
15(a) allows a defendant to amend his answer once as a matter
of right at any time within twenty days after it is served.
If twenty days has passed since the filing of the answer, the
defendant may amend “only by leave of court or by
written consent of the adverse party.” Fed.R.Civ.P.
15(a)(2). “Leave shall be freely given [by the court]
when justice so requires.” Id. “Unless
there is a good reason for denial, 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, leave to amend should be granted.”
Bediako v. Stein Mart, Inc., 354 F.3d 835, 840-41
(8th Cir. 2004). “Delay alone is not enough to deny a
motion to amend; prejudice to the nonmovant must also be
shown.” Id. at 841.
answer, like any pleading, may be amended to incorporate
affirmative defenses which are inadvertently omitted. See
Groninger v. Davison, 364 F.2d 638 (8th Cir. 1966);
see also Joseph v. Allen, 712 F.3d 1222, 1226 n.3
(8th Cir. 2013) (district court did not err in granting
defendants leave to amend their answer to assert a defense of
qualified immunity, even though the motion for leave to amend
was not filed until after the plaintiff filed a motion for
summary judgment) (citing Chesnut v. St. Louis County,
Mo., 656 F.2d 343, 349 (8th Cir. 1981))
(“Amendments should be allowed with liberality, and
when justice so requires, even after defendant has served the
moving party with a motion for summary judgment.”
(internal citation omitted)). The decision whether to allow
such an amendment lies in the sound discretion of the trial
court. Groninger, 364 F.2d at 640.
other recent Eighth Circuit decisions instruct that where a
party seeks leave to amend its pleadings after the deadline
in the case management order has passed, Fed.R.Civ.P.
16(b)'s good-cause standard applies, not the more liberal
standard of Rule 15(a). Under Rule 16(b)(4), the party must
show good cause in order to be granted leave to amend.
Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948
(8th Cir. 2012); Sherman v.Winco Fireworks, Inc.,
532 F.3d 709, 716 (8th Cir. 2008); Popoalii v.
Correctional Med. Servs., 512 F.3d 488, 497 (8th Cir.
2008). “‘The primary measure of good cause is the
movant's diligence in attempting to meet the [case
management] order's requirements.'”
Hartis, 694 F.3d at 948 (quoting Rahn v.
Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)). Instead of
evaluating prejudice to the nonmovant, the Court should
“‘focus in the first instance (and usually
solely) on the diligence of the party who sought modification
of the order.'” Id. Where there has been
“‘no change in the law, no newly discovered
facts, or any other changed circumstance . . . after the
scheduling deadline for amending pleadings,' then [the
Court] may conclude that the moving party has failed to show
good cause.” Id.
defendants filed the instant motion to amend almost six
months after the Amended Case Management Order's deadline
of November 19, 2018 to amend pleadings. (Doc. 33). The Court
will analyze defendants' motion under the heightened Rule
16(b) good cause standard, following the weight of recent
Eighth Circuit precedent.
first argument, that “[o]nly after reviewing [the]
record of discovery and upon preparing dispositive motions
did [defendants' counsel] realize that previous counsel
to [d]efendants did not raise the affirmative defense of
qualified immunity, ” does not rise to the level of
good cause. “‘The primary measure of good cause
is the movant's diligence in attempting to meet
the order's requirements.'” Hartis,
694 F.3d at 948 (emphasis added) (quoting Rahn, 464
F.3d at 822). On October 9, 2018, more than a month before
the deadline to file motions to amend pleadings, the Court
granted defendants' motion to substitute counsel. (Doc.
32). New defense counsel had a responsibility to fully review
the pleadings and timely file a motion to amend by the
deadline in the Case Management Order. Counsel's failure
to notice that a particular affirmative defense was not pled
shows a lack of diligence to meet this Court's
second argument, however, may have merit. Defendants argue
that only after reviewing discovery, including
interrogatories, requests for admissions, and plaintiff's
deposition, defendants' counsel determined that the
discovered facts would lead to the application of the
affirmative defense of qualified immunity. The deadline for
the close of discovery was April 15, 2019 (Doc. 44), and the
instant motion was filed one month after the close of
discovery. While the discovery of new facts is sufficient
grounds for granting a motion for leave to amend under Rule
16(b)(4)'s good cause standard, Hartis, 694 F.3d
at 948, defendants fail to state what facts were discovered
and when were those new facts were discovered. It is also not
clear from defendants' motion whether plaintiff's
deposition was taken or reviewed on March 11, 2019. Without
this information, the Court cannot properly analyze
defendants' diligence in attempting to meet the Case
Management Order's requirement. Because defendants'
motion for leave to amend should have been filed pursuant to
Rule 16(b), and not Rule 15(a)(2), the Court will permit
defendants to supplement their motion to show “good
cause” to amend under the appropriate standard of
IT IS HEREBY ORDERED that defendants Jason
Davis, Cindy Griffith, and Alan Earls shall file a supplement
to their motion for leave to amend answer out of time (Doc.
49) pursuant to Federal Rule of Civil Procedure 16(b), no
later than June 10, 2019. Failure to file a
timely supplement will result in the denial of
defendants' motion for leave to amend answer out of time.
IS FURTHER ORDERED that pro se plaintiff Andrew
Arman shall have until June 21, 2019 to file