United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR UNITED STATES MAGISTRATE JUDGE.
lawsuit seeks damages resulting from an automobile accident
that occurred in St. Tammany Parish, Louisiana. Record Doc.
No. 1. The district judge previously issued a Rule 16
scheduling order in this matter setting October 29, 2018, as
the deadline for amendment of pleadings. Record Doc. No. 11.
Defendants were previously granted leave to amend their
answer on October 19, 2018, before the amendment deadline
expired. Record Doc. Nos. 18, 20, 21.
Motion for Leave of Court to File Second Supplemental and
Amended Answer to Complaint, Record Doc. No. 36, is now
before me. Defendants seek to amend their answer to add an
additional affirmative defense under Louisiana Revised
Statutes § 9:2798.4. The statute states, in pertinent
part, that no person shall be liable for damages sustained by
the operator of a motor vehicle if that operator was
operating the vehicle under the influence of a controlled
dangerous substance. La. R.S. § 9:2798.4. Defendants
state that their proposed amendment is prompted by
information learned in March and April 2019, from
plaintiff's deposition testimony regarding her marijuana
use in the days preceding the subject accident and
defendants' receipt and review of certified medical
records containing plaintiff's drug screening results
from the date of the accident. Record Doc. No. 36-1 at pp.
filed a timely opposition memorandum. Record Doc. No. 37.
Defendant was permitted to file a reply brief. Record Doc.
Nos. 42, 43. Oral argument on this motion was conducted on
May 1, 2019. Having considered all of the submitted materials
and the oral argument of counsel, defendants' motion is
GRANTED for the following reasons.
the court has entered a scheduling order setting a deadline
for the amendment of pleadings, the schedule “may be
modified only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4) (emphasis
added). “Rule 16(b) governs amendment of pleadings
after a scheduling order deadline has expired. Only upon
the movant's demonstration of good cause to modify the
scheduling order will the more liberal standard of Rule
15(a) apply to the district court's decision to grant or
deny leave.” S&W Enters., L.L.C. v. SouthTrust
Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003)
(emphasis added). “In determining good cause, we
consider four factors: ‘(1) the explanation for the
failure to timely move for leave to amend; (2) the importance
of the amendment; (3) potential prejudice in allowing the
amendment; and (4) the availability of a continuance to cure
such prejudice.'” Sw. Bell Tel. Co. v. City of
El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (citing
Fed.R.Civ.P. 16(b)) (quoting S & W Enters., 315
F.3d at 535); accord Fahim v. Marriott Hotel Servs.,
Inc., 551 F.3d 344, 348 (5th Cir. 2008); Nunez v.
U.S. Postal Serv., 298 Fed.Appx. 316, 319 (5th Cir.
2008); In re Int'l Marine, LLC, 2009 WL 498372,
at *1-2 (E.D. La. Feb. 26, 2009).
16(b) good cause is established, Rule 15(a) is liberal in
favor of permitting amendment of pleadings. Leffall v.
Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.
1994); Martin's Herend Imports, Inc. v. Diamond &
Gem Trading U.S. Am. Co., 195 F.3d 765, 770 (5th Cir.
1999); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d
594, 597-98 (5th Cir. 1981). Thus, “[t]he court should
freely give leave when justice so requires, ”
Fed.R.Civ.P. 15(a)(2), but such leave “is by
no means automatic.” Wimm v. Jack Eckerd
Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation
omitted). Relevant factors to consider include “undue
delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party,
and futility of amendment.” Id.
noted above, the scheduling order deadline for amendment of
pleadings expired on October 29, 2018. This deadline lapsed
without being extended. Thus, Rule 16(b) governs amendment of
pleadings in this matter, and defendants must establish
"good cause" for their untimely amendment
before the liberal Rule 15(a) standard might apply.
their explanation for seeking amendment after expiration of
the amendment deadline, defendants state that the information
supporting the proposed affirmative defense was not learned
by defendants until March and April 2019, during discovery.
Specifically, defendants state that on March 14, 2019, they
received medical records certified on March 9, 2019,
containing the results of plaintiff's drug screening at
University Medical Center ("UMC") on the date of
the subject accident. Record Doc. No. 36-1 at p. 2. These
results confirmed the presence of tetrahydrocannibinol
("THC"), the active ingredient in marijuana, in
plaintiff's urine on the day of the accident. Record Doc.
No. 36-2 at p. 2. Defendants also assert that plaintiff
testified during her April 10, 2019 deposition that she
ingested marijuana before the subject accident. Record Doc.
No. 36-1 at p. 2. Plaintiff confirms this testimony in her
opposition memorandum, stating that "she had consumed
marijuana in the two or three days before [the]
accident." Record Doc. No. 37 at pp. 2-3.
Plaintiff's opposition memorandum argues that defendants
possessed the drug screening results since October 22, 2018,
when plaintiff provided her initial disclosures to
defendants. Record Doc. No. 37 at p. 2. However, that
document, Record Doc. No. 39-2, indicates that the presence
of drugs in plaintiff's hospital drug screening was
either "not detected" or "not confirmed."
Defendants' reply asserts that confirmed drug screening
results were not included in plaintiff's initial
disclosures and references email correspondence between
opposing counsel suggesting that UMC provided additional
certified medical records in March 2019 that were not
included in plaintiff's initial disclosures. Record Doc.
Nos. 38-3, 38-4 at p. 1. The drug screening results were
certified by UMC's custodian of medical records on March
9, 2019. Record Doc. No. 36-2 at p. 1. I find that
defendants' explanation is persuasive and favors
importance, amendment is crucial to defendants because, if
defendants prevail on the affirmative defense supplied by La.
R.S. § 9:2798.4, they will have no liability for
plaintiff's damages sustained in the subject accident.
This factor weighs heavily in favor of finding good cause for
prejudice to plaintiff may occur in allowing defendants to
plead their proposed affirmative defense in that plaintiff
must necessarily address the allegation that she was under
the influence of a controlled dangerous substance on the date
of the subject accident. However, plaintiff testified at her
deposition as to her own ingestion of marijuana in the days
preceding the accident and participated in a drug screening
on the day of the accident that reflected the possible
presence of THC in her urine. It should come as no surprise
to plaintiff that defendants would seek plaintiff's
medical records in discovery, depose plaintiff on her status
before the accident and attempt to assert affirmative
defenses arising from their discovery concerning
plaintiff's physical status. I find that any prejudice to
plaintiff resulting from this late amendment would not be
undue because ample time remains before trial for plaintiff
adequately to prepare for and address this defense.
in this matter is currently set for January 13, 2020, more
than seven (7) months from today. Record Doc. No. 11. While
an extension of the discovery deadline may be necessary and
should be available, a trial continuance should not be
necessary. This factor favors a good cause finding. The