United States District Court, D. Minnesota
Jeffrey L. Bailey and Marlon E. Carter, Plaintiff,
Metropolitan Council, First Transit, Inc., Tim Ogren, Patricia Vold, Don Johnson, Troy D. Gustafson, Teamsters Local 120, and Dean Vinge, Defendants,
Jeffrey L. Bailey, and Marlon E. Carter (pro se Plaintiffs);
Hentosz, Littler Mendelson, and Holly M. Robbins, Littler
Mendelson, (for Defendants Metropolitan Council, First
Transit, Inc., Ogren, Vold, and Vinge); and
Katrina E. Joseph, (for Defendants Gustafson and Teamsters
N. Leung United States Magistrate Judge
matter is before the Court on Plaintiffs’ 2nd Motion to
Amend Amended Complaint. (ECF No. 89) and Defendants’
Motion to Extend Time to Respond to Plaintiffs’ Second
Motion to Amend Amended Complaint (ECF No. 104). For the
reasons set forth below, the Court will grant both motions.
filed suit on April 12, 2019. They amended their complaint on
June 11, 2019. (ECF No. 5). Approximately one month later,
all Defendants but Johnson, who had not yet been served,
moved to dismiss the amended complaint. (ECF Nos. 11 &
17). Plaintiffs subsequently served Johnson. He moved to
dismiss the complaint on August 22, 2019. (ECF No. 79).
then moved to amend their complaint. (ECF No. 89). They state
that leave to amend should be granted because they noticed
that “correction needed to be made” after they
reviewed their first amended complaint. (ECF No. 89, p. 2).
Plaintiffs further contend that leave to amend should be
granted because this case “is still in the early
stage[.]” (ECF No. 89, p. 2).
after Plaintiffs moved for leave to amend, the Court issued
an order denying Plaintiffs’ motion to deny pro hac
vice admission to one of Defendants’ attorneys. (ECF
No. 102). On page one of that order, the Court said it would
set a briefing schedule on the motion to amend. On the last
page of the order, the Court set that briefing schedule by
directing that briefing “occur pursuant to the
District’s local rules.” (ECF No. 102, p. 3).
Because the local rules provide a party seven days to respond
to a non-dispositive motion, see D. Minn. LR
7.1(b)(2), Defendants’ response to the motion to amend
would be due on or before September 17, 2019.
did not respond until September 18, 2019. At that time, all
Defendants but Troy Gustafson and Teamsters Local 120
(“Union Defendants”) moved for an extension of
time to respond to the motion to amend. (ECF No. 104) The
moving Defendants indicate they misunderstood the
Court’s previous order and assumed the Court would set
a separate briefing schedule on the motion to amend. Both
sets of Defendants then filed responses opposing the motions
to amend. (ECF Nos. 107, 109). The Court took the matter
under advisement without a hearing.
first question the Court must resolve is whether to consider
the arguments Defendants made in opposition to the motion to
amend, since Defendants did not timely file their responses.
The District’s local rules permit the Court, among
other things, to take any action the Court “considers
appropriate” when a party fails to timely file and
serve a memorandum of law. D. Minn. LR 7.1(g)(6). Were the
Court to strike those responses from the record,
Plaintiffs’ motion would be unopposed. The Court would
be likely be left with no choice but to grant it.
drastic step would be warranted. The Court has repeatedly
emphasized the importance of compliance with the local rules
in this case. Just a few months ago, the Court rejected a
previous motion to amend that Plaintiffs filed, without even
receiving briefing from the other side, because Plaintiffs
had not complied with the local rules when they filed their
motion. (ECF No. 45, p. 7). And recently after that, the
Court issued an order reminding Plaintiffs that they needed
to comply with the District’s Electronic Device Policy.
(ECF No. 102). The Court expects the same level of compliance
from experienced counsel on the other side of this case.
not necessary, however, for the Court to take such a drastic
step here. Even considering the arguments Defendants make,
there is no reason to deny the motion to amend. Once 21 days
have passed after service of a responsive pleading, a party
“may amend its pleading only with the opposing
party’s written consent or the court’s
leave.” Fed.R.Civ.P. 15(a)(2). “Although leave to
amend ‘shall be freely given when justice so requires,
’ see Fed. R. Civ. P. 15(a), plaintiffs do not
have an absolute or automatic right to amend.”
United States ex rel. Lee v. Fairview Health Sys.,
413 F.3d 748, 749 (8th Cir. 2005) (citing Meehan v.
United Consumers Club Franchising Corp., 312 F.3d 909,
913 (8th Cir. 2002)). The Court may deny a party’s
request for leave to amend only “if there are
compelling reasons 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.”
Reuter v. Jax Ltd., Inc., 711 F.3d 918, 922 (8th
Cir. 2013) (quoting Sherman v. Winco Fireworks,
Inc., 532 F.3d 709, 715 (8th Cir. 2008)). ...