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. The motion will be granted for the
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 argue that 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).
31, 2019, the Court issued a Memorandum and Order instructing
defendants that their motion for leave to amend answer out of
time was filed pursuant to the incorrect standard. (Doc. 58
at 2-3) (“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)”). The
Court permitted defendants to file a supplement to their
motion for leave to amend answer out of time pursuant to the
correct standard. Defendants timely filed their supplement.
(Doc. 59). Plaintiff did not file a response within the time
permitted by the Memorandum and Order.
Rule 16(b)(4), a 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.
argue that only after reviewing discovery, including
interrogatories, requests for admissions, and plaintiff's
deposition testimony, did defendants determine that the
affirmative defense of qualified immunity applied in the
to defendants' supplement is the partial transcript of
plaintiff's deposition, taken on March 11, 2019, and
plaintiff's answers to three requests for admissions,
received by defendants on March 21, 2019. Plaintiff testified
at deposition that he remembered kicking a corrections
officer and admitted that the officers' response
“could have been” the result of his
non-compliance with orders. (Doc. 59-1). Additionally,
plaintiff responded with “True” to the following
two requests for admissions:
REQUEST NO. 8: Admit that you were escorted to and secured in
the HU-2A restraint bench in an effort to maintain control of
the situation as a direct result of your fighting with MDOC
REQUEST NO. 9: Admit that your persistent combative behavior
and noncompliance necessitated the use by MDOC personnel ...