United States District Court, D. Maine
ORDER ON MOTION FOR LEAVE TO AMEND
JOHN C. NIVISON, Magistrate Judge.
In this action, Plaintiff Terrance Wyman seeks to recover in negligence and in strict liability for injuries allegedly resulting from his use of a planer manufactured by Defendant Yates-American Machine Company, and sold by Defendant DK-Spec Inc. The matter is before the Court on Defendant Yates-American's Motion for Leave to Amend its answer to Plaintiff's complaint. Through its motion, Defendant Yates-American requests permission to assert the affirmative defense of lack of personal jurisdiction. (Motion for Leave to Amend, ECF No. 21).
As explained below, following a review of the pleadings, and consideration of the parties' arguments, the Court denies the motion.
Yates-American removed this action from state court on August 6, 2013, and filed its answer to Plaintiff's Complaint on August 12, 2013. In the Complaint, Plaintiff alleges that sometime prior to May 17, 2007, Defendant Yates-American sold, to an unknown customer, a planer/matcher machine identified as a "Yates-American A-20 or A-20-12" and thereby placed the machine in the stream of commerce. (Complaint ¶ 5, ECF No. 1-1.) In its answer to Wyman's complaint, Yates-American admitted "that it sold planers prior to May 17, 2007, " but otherwise represented that it lacked knowledge or information sufficient to admit or deny the allegation. (Yates-American Answer ¶ 5, ECF No. 5.)
On September 9, 2013, the Court amended its Scheduling Order to establish the deadline for amendment of the pleadings as November 15, 2013. (See ECF Nos. 11/12.) Although the Court subsequently amended the Scheduling Order, the Court did not alter the date by which the parties were required to seek to amend the pleadings.
Yates-American filed the pending Motion for Leave to Amend on March 26, 2014. Yates-American's principal purpose in requesting the amendment is to assert the affirmative defense of lack of personal jurisdiction. ( Id. at 4.) Yates-American also seeks to assert "that it sold an A-20-12 planer/matcher, serial number B-28984, to Cecil Hodges Lumber Company in Sandersville, GA in November, 1972" and to deny that the planer that allegedly caused Wyman's injuries was in the same condition as it was in 1972. (Yates-American Amended Answer ¶ 5, ECF No. 21-1.)
A. Motion to Amend Standard
Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a litigant to amend a pleading "once as a matter of course, " subject to certain time constraints. In the case of an answer, freedom to amend without leave of court is permitted within 21 days of the date on which the answer was filed. Fed.R.Civ.P. 15(a)(1)(A). Thereafter, leave of court is required, though leave should be granted "freely... when justice so requires." Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The standard is elevated, however, when the motion seeking leave to amend is filed after the deadline for amendment of the pleadings found in the Court's scheduling order. A motion to amend that is filed beyond the scheduling order deadline requires an amendment of the scheduling order. To obtain an amendment of the scheduling order, a party must demonstrate "good cause." Johnson v. Spencer Press of Maine, Inc., 211 F.R.D. 27, 30 (D. Me. 2002); El-Hajj v. Fortis Benefits Ins. Co., 156 F.Supp.2d 27, 34 (D. Me. 2001); Fed.R.Civ.P. 16(b)(4). A court's decision on good cause "focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party-opponent." Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004). "Particularly disfavored are motions to amend whose timing prejudices the opposing party by requiring a re-opening of discovery with additional costs, a significant postponement of the trial, and a likely major alteration in trial tactics and strategy.'" Id. (quoting Acosta-Mestre v. Hilton Int'l of P.R., Inc., 156 F.3d 49, 52 (1st Cir. 1998)). It falls to the court's discretion whether to grant a late motion to amend, and that discretion should be exercised on the basis of the particular facts and circumstances of the case. Id.
Even if a party demonstrates good cause to file a late motion to amend, the Court can deny the motion if the Court determines that the proposed amendment of the pleading in question would be futile. Chiang v. Skeirik, 582 F.3d 238, 244 (1st Cir. 2009). Here, if Yates-American would likely be unsuccessful in the prosecution of its contention that the Court lacks personal jurisdiction over Yates-American, denial of the motion is appropriate. See id.
Finally, because of the nature of certain defenses, by Rule, the defenses are deemed waived when a defendant fails to present them, at the latest, in an amended answer that can be filed "as a matter of course." Fed.R.Civ.P. 12(h)(1)(B)(ii). See also Fed.R.Civ.P. 12 advisory committee notes to 1966 amendments (stating, with respect to Rule 12(h)(1): "The specified defenses are of such a character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading.").
B. The Evidentiary Record
In support of its Motion for Leave to Amend, Yates-American filed exhibits demonstrating that it is an out-of-state corporation (Exhibits A & B); that it sold the planer in question to a Georgia company in 1972 (Exhibit C); that the planer was thereafter sold repeatedly by other entities before Stratton Lumber acquired it (Exhibits D, E & F); that, as of the deadline to answer, no personnel at Yates-American ever inspected or otherwise observed the subject planer at Stratton Lumber, but that the president of Yates-American was able to do so on November 22, 2013, (Exhibit D); that the subject planer was substantially modified by other parties ( Id. ); and that Yates-American is not registered to conduct ...