• October 19, 2016

map-525349_1280Most lay people and many novice litigators do not know what “pleadings” are. I did not know when I started practicing in the year of the first flip phone, the Motorola StarTAC, and 20 years B.T. (before the reign of Emperor Trump the Terrible).

When I started working as a lawyer, the firms where I worked kept “pleadings” in a “pleadings folder” or a “pleadings spindle,” and the law firms included every document connected to a case that included the case caption in these “pleadings files” (complaint, answer, scheduling order, interrogatories, document requests, motions, and so on). Naturally, I assumed these were all pleadings.

These are not all “pleadings.”

“Pleadings” are “the formal statements of the cause of action or defense.” They are critical to our legal system. They are complaints, answers, counterclaims, cross-claims, third-party claims and responses thereto. They are the metes and bounds, i.e., the boundaries of the litigation, identifying who, exactly, is suing, who is being sued, and for what. The pleadings also include what the defenses to the claims are.

It is tricky for courts to decide when a litigant is allowed to amend a pleading. High stakes might ride on the decision. At times, amendment of a pleading can turn a case upside down, adding months or even years to the case. At other times, denying a litigant the right to amend a pleading can destroy the litigant’s case by foreclosing the chance for the litigant to correct an error, to add a party, a claim, or a defense.

Courts must strike a balance.

Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

I am sympathetic to the unfortunate plaintiffs’ lawyers in Harris et al. v. Chipotle Mexican Grill, Inc., a Fair Labor Standards Act (FLSA) overtime collective action, a claim under federal law, pending before U.S. District Court Judge Susan R. Nelson (D. Minn.).

Somewhere along the line, after the deadline in the case for amendment of pleadings, it seems that one or more of the many plaintiffs’ lawyers noted a hole in their legal theories and thought up a patch for the hole — new claims under particular state laws.

They sought to amend their complaint to apply the patch, arguing that the new theory would not require any further discovery and, therefore, would not prejudice the defendant.

It seems that Plaintiffs’ counsels’ points are valid. Nevertheless, Judge Nelson essentially ruled that the lawyers’ excuse — “We just realized we need to apply a legal patch”  — reflected a “lack of diligence” on their part and did not rise to the level of “good cause,” which is a required showing for amending pleadings after the time set in the court’s scheduling order. Judge Nelson also did not agree that Plaintiffs’ amendment would not require additional discovery. (See p. 7, ftn. 2.)

I think Judge Nelson’s decision, regrettably, might be correct. Eighth Circuit precedent is a little mealy-mouthed:

While the prejudice to the nonmovant resulting from modification of the scheduling order may also be a relevant factor, generally, we will not consider prejudice if the movant has not been diligent in meeting the scheduling order’s deadlines.

The 8th Circuit appears to “generally” (whatever this word means) require that one establish “good cause” BEFORE one analyzes prejudice to the other side.

So, in this case, even if Plaintiffs’ counsel is correct that the amendment would be in the nature of a legal patch requiring no additional discovery, and therefore incur no delay and no prejudice to Defendant Chipotle, they still lose.

I think good cause and prejudice should be considered at the same time, with less emphasis on the requirement of “good cause” when there is little to no prejudice to the adversary.


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