The opinion of the court was delivered by: Judge Holschuh
Plaintiffs Andrew and Elizabeth Cooke filed suit against Defendant AT&T Corp. alleging numerous causes of action arising from repeated calls to their home phone number by AT&T employees. This matter is currently before the Court on Plaintiffs' motion for leave to file an amended complaint. The Court also notes that the status of this amended complaint will likely affect the Court's disposition on Defendant's motion for judgment on the pleadings. (R. at 25).
I. BACKGROUND AND PROCEDURAL POSTURE
The relevant background for this motion may be best explained by reviewing its procedural posture. On April 13, 2005, Defendants removed this case to federal court. (R. at 1). The preliminary pretrial order filed on May 20, 2005 set a deadline for amended pleadings on June 15, 2005. Defendant filed a motion for judgment on the pleadings as to counts three (3) and six (6) of Plaintiffs' complaint on March 8, 2006. Plaintiffs did not respond to Defendant's motion for judgment on the pleadings claiming lack of service. (R. at 28). Plaintiffs then filed for leave to amend their complaint on May 17, 2006. (R. at 33). This amended complaint attempted to remedy possible deficiencies of the original complaint that were revealed in Defendant's motion for judgment on the pleadings. Plaintiffs requested, should their leave to amend be denied, that they be given fourteen days to respond to Defendant's motion for judgment on the pleadings.
Plaintiffs argue the Court should grant leave to amend because justice so requires. Defendant counter-argues that undue delay, dilatory motives, and futility preclude Plaintiffs from justifying a grant of leave to amend. Neither party directly addresses the question of whether Fed.R.Civ.P. 16(b) is pertinent to the issue of whether plaintiffs should be allowed to file an amended complaint.
A. After a Scheduling Order Deadline Expires, Motions to Amend Pleadings Must Be First Reviewed Under Rule 16(b) and Then Assessed Under Rule 15(a)
Generally, motions to amend pleadings are governed by Rule 15(a) of the Federal Rules of Civil Procedure. When the court has issued a scheduling order setting a deadline for motions to amend the pleadings, however, a subsequent motion for leave to amend must first be analyzed under Rule 16(b) before determining whether the motion satisfies Rule 15(a). In the Memorandum of the First Pretrial Conference, the deadline for amended pleadings was set for June 15, 2005. (R. at 9).
Rule 16(b)(1), Fed. R. Civ. P., states that the district court "shall...enter a scheduling order that limits the time... to amend the pleadings." Once such a schedule is in place, it may only be modified by a showing of "good cause." The proviso in Rule 15(a) that "leave [to amend] shall be freely given when justice so requires" presupposes that the moving party has complied with any Rule 16 deadline. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417 (11th Cir. 1998)("if we considered only Rule 15(a) without regard to Rule 16(b), we would render scheduling orders meaningless and effectively would read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure"). Rule 16, in other words, prescribes the time by which any motion for leave to amend must be filed; Rule 15 provides guidance to the courts on deciding the merits of timely motions. After a scheduling order has been issued, Rule 16(b) permits the Court to modify that order only upon a "showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension." Fed. R. Civ. P. 16(b), Advisory Committee Notes to 1983 Amendments.
B. Rule 16(b) Requires a Showing of "Good Cause" for Failing to Amend Before the Expiration of the Scheduling Deadline
Under Rule 16(b), "once a scheduling order's deadline passes, a party must first show 'good cause' for the failure to seek leave to amend prior to the expiration of the deadline before a court will consider whether the amendment is proper under Rule 15(a)." Hill v. Banks, 85 Fed. Appx. 432, 433 (6th Cir. 2003). An amendment coming late in discovery should not be denied as a penalty to the moving party when the factual basis for the amendment was not disclosed until late in discovery. See MPT, Inc. v. Marathon Labels, Inc., 2005 U.S. Dist. LEXIS 29278 (N.D. Ohio, Nov. 23, 2005); Discover Bank v. New Vision Financial, LLC, 2005 WL 1865369 (S.D.Ohio, Aug.1, 2005) (allowing leave to amend because a limited discovery extension confirmed suspicions sufficient in fact that new claims could be asserted in good faith). The MPT, Inc. court noted the defendant's admission "the bulk of time and expense spent on discovery related to the issue has been incurred" and also pointed to the "ample time" still available before the court's discovery deadline.
While Defendant does point out that the deadline for amended pleadings has expired, there is no argument on either side regarding "good cause" to determine the disposition of Plaintiffs' motion. (Def. Respon. to Pl.'s Mot. for Leave to Amend, p. 3; R. at 36).
C. Diligence of the Moving Party Often Justifies Modification of the Court's Pre-Trial Schedule and Satisfies a Showing ...