United States District Court, E.D. Missouri, Eastern Division
ORDER AND MEMORANDUM
W. SIPPEL UNITED STATES DISTRICT JUDGE
matter is before me on Diversified Ingredients'
(Diversified) Motion for Leave to Amend Its Complaint .
I address Blue Buffalo's Motion for Leave to Amend Its
Complaint  in a separate Order.
moves for leave to amend its complaint in order to
incorporate facts it alleges it has learned during the course
of discovery, to add new counts of negligence, negligent
misrepresentation, and breach of contract against Blue
Buffalo, and to plead new damages against Wilbur-Ellis and
Custom Ag. After fully considering the parties'
submissions and arguments on Diversified's motion on
January 9, 2019, and for the reasons below, I will deny
Diversified's motion as it pertains to the counterclaims
against Blue Buffalo, and I will grant it in part as it
pertains to the addition of damages allegations to its
cross-claims against Wilbur-Ellis and third party claims
against Custom Ag.
first became a party to this lawsuit when Blue Buffalo
alleged cross-claims against it in May 2015. Since that time,
a complicated set of dispositive motions, discovery disputes,
and criminal investigations have kept this case from moving
to trial. The case is currently stayed, pursuant to an Order
I entered on March 9, 2017 so the United States' Attorney
for the Eastern District of Missouri could pursue potential
criminal charges against the defendants and several of their
time since I ordered the stay, Diversified and Wilbur-Ellis
have both pleaded guilty to federal misdemeanor charges and
the parties have largely paused discovery (especially that
which requires them to submit answers under oath). See
USA v. Rychlik et al, 4:17-CR-100-NAB [hereinafter
“Rychlik”], Nos. 86, 110; July 19, 2018
Order, ECF No. 1293 (permitting the parties in this case to
exchange written discovery that does not involve submitting
answers under oath).
I issued the stay, Diversified was preparing to ask for leave
to amend its pleadings. It did not do so before the stay went
into effect. Diversified now asks that I grant leave so that
it can amend its pleadings.
general rule, leave to amend a party's pleadings should
be freely given when justice so requires. See
Fed.R.Civ.P. 15(a). However, on April 21, 2016, I ordered
further requests to amend pleadings in this case must satisfy
the requirements of Fed.R.Civ.P. 16(b)(4). [See
April 21, 2016 Order, ECF Doc. No. 768, at 2] None of the
Parties objected to that Order. Accordingly, Rule 16(b)(4)
applies to Diversified's motion for leave to amend its
as here, a party seeks leave to amend the pleadings after the
case management deadline to do so has passed, courts must
first determine whether good cause exists under Rule
16(b)(4)'s good cause standard. See Popoalii v. Corr.
Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008). Then, if
the movant establishes good cause, courts will consider
whether amendment is proper under Rule 15(a). See Sherman
v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir.
2008) (citing Leary v. Daeschner, 349 F.3d 888, 909
primary consideration when courts apply the good cause
standard is the movant's “diligence in attempting
to meet the [case management] order's
requirements.” Sherman 532 F.3d at 716. Next,
because a party seeking to amend its pleadings must also
satisfy the requirements of Rule 15(a), prejudice to the
nonmovant resulting from the amendment “may also be a
relevant factor.” Id. at 717; see also
Foman v. Davis, 371 U.S. 178, 182 (1962). “The
burden is on the party opposing the amendment to show such
prejudice.” Beeck v. Aquaslide “N” Dive
Corp., 562 F.2d 537, 540 (8th Cir. 1977). Courts
generally “will not consider prejudice if the movant
has not been diligent in meeting the scheduling order's
deadlines.” Sherman, F.3d at 717 (citing
Bradford v. DANA Corp., 249 F.3d 807, 809 (8th
courts will not grant leave to amend a complaint when the
proposed amendment is futile, meaning “the amended
claim could not withstand a motion to dismiss under Rule
12(b)(6).” Hillesheim v. Myron's Cards &
Gifts, Inc., 897 F.3d 953, 955 (8th Cir. 2018). This
means that, in assessing whether an amendment is futile, I
must accept as true all factual allegations in the Proposed
Amended Pleadings [ECF Doc. No. 1339-1] (“PAP”).
Fed.R.Civ.P. 12(b)(6); Erickson v. Pardus, 551 U.S.
89, 94 (2007). This requirement remains in effect “even
if it strikes a savvy judge that actual proof of those facts
is improbable.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (citing
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1
(2002)); Neitzke v. Williams, 490 U.S. 319, 327
(1989) (“Rule 12(b)(6) does not countenance . . .
dismissals based on a judge's disbelief of a
complaint's factual allegations.”). The issue is
not whether the plaintiff will ultimately prevail, but
whether the plaintiff is entitled to present evidence in
support of her claim. Id.
proposed amendments seek to allege negligence claims or, in
the alternative, a breach of contract claim against Blue
Buffalo. Additionally, Diversified seeks to allege ...