United States District Court, N.D. Oklahoma
OPINION AND ORDER
CLAIRE
V. EAGAN UNITED STATES DISTRICT JUDGE
Now
before the Court is Plaintiff's Opposed Motion for Leave
to File First Amended Complaint and Brief in Support (Dkt. #
39). Plaintiff requests leave to file an amended complaint
adding additional claims and clarifying aspects of his
existing claims. He asserts that the amended complaint would
not “materially change the case” and he argues
that the motion to amend is timely. Dkt. # 39, at 1.
Defendant responds that plaintiff is simply advancing claims
that have previously been rejected by the Court, and the
motion to amend is futile and untimely. Dkt. # 40. The Court
notes that this is plaintiff's second motion to amend,
and his first motion to amend was denied. See Dkt. #
38.
On
January 3, 2019, plaintiff filed this case alleging that
defendants placed a surveillance device inside the cab of his
tractor-trailer, and he claims that this caused him severe
emotional distress. Dkt. # 2. Plaintiff alleged claims under
the Electronic Communications Privacy Act, 18 U.S.C. §
2520 (ECPA), and 42 U.S.C. § 1981, and he also alleged
state law claims of invasion of privacy, negligence, and
breach of contract.[1] The negligence claim was based on a theory
of negligence per se, and plaintiff argued that
defendants had a duty under federal regulations to prevent
him from driving if he posed a risk of harm to himself. Dkt.
# 2, at 9-10. The Court entered a scheduling order (Dkt. #
19), inter alia, setting a deadline of May 1, 2019
for parties to file motions seeking leave to join additional
parties or amend pleadings. Defendants filed a motion to
dismiss plaintiff's claims under Fed.R.Civ.P. 12(b)(6).
Dkt. # 9. The Court granted the motion in part and dismissed
plaintiff's § 1981 and negligence claims, but the
Court denied the motion to dismiss as to plaintiff's
remaining claims. Dkt. # 25. Plaintiff filed a motion to
amend (Dkt. # 26) seeking leave to add a negligence claim
under California law, because defendant allegedly failed to
obtain workers' compensation coverage for plaintiff in
the event that he was injured on the job. The Court found
that the issue of whether plaintiff was an employee or an
independent contractor was the subject of another lawsuit
against defendant, and plaintiff's motion to amend was
denied. Dkt. # 38.
Plaintiff
has filed a second motion to amend (Dkt. # 39) seeking to
“clarify” the legal theories under which he seeks
to recover. The proposed amended complaint alleges that
plaintiff advised defendants that he was not fit to drive due
to his anxiety after discovering a surveillance device in his
tractor-trailer, and he claims that he was directed by John
Christner Trucking, LLC (JCT) to return to work. Dkt. # 39,
at 13. Plaintiff cites provisions of a contract between
himself and JCT under which the “contractor”
shall provide a competent driver and the
“carrier” shall have the right to disqualify any
driver who is found to be unfit or unqualified to drive, and
he claims that defendants had a contractual duty to prevent
him from driving if he was mentally unfit. Id. at
14-15. The proposed amended complaint includes the ECPA and
invasion of privacy claims that were not dismissed in the
Court's ruling on defendants' motion to dismiss.
Id. at 15-16. Plaintiff seeks to assert a common law
negligence claim under a theory that defendants had a legal
and a contractual duty to disqualify him from driving if he
posed a risk of harm to himself, and it appears that he is
alleging a breach of contract claim based on his allegations
that he was unfit to drive. Id. at 17-19. Plaintiff
also alleges that defendants committed fraud by placing a
surveillance device in the cab of his tractor-trailer without
advising him that he communications would be recorded.
Id. at 21.
Rule
15(a) provides that “leave [to amend] shall be freely
given when justice so requires.” Minter v. Prime
Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006);
Bradley v. Val-Mejias, 379 F.3d 892, 900 (10th Cir.
2004). “In the absence of any apparent or declared
reason-such as 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 by virtue of allowance . . . the leave sought
should, as the rules require, be ‘freely
given'” Foman v. Davis, 371 U.S. 178, 182
(1962). When considering delay as the basis to deny a motion
to amend, a court must consider the length of the delay and
the reason for the delay to determine if the moving
party's actions constitute “undue” delay.
Smith v. Aztec Well Servicing Co., 462 F.3d 1274,
1285 (10th Cir. 2006). A court may deny leave to amend
“when the party filing the motion has no adequate
explanation for the delay.” Minter, 451 F.3d
at 1206 (quoting Frank v. U.S. West, 3 F.3d 1357,
1365-66 (10th Cir. 1993)). “Untimeliness in itself can
be a sufficient reason to deny leave to amend, particularly
when the movant provides no adequate explanation for the
delay.” Panis v. Mission Hills Bank, N.A., 60
F.3d 1486, 1495 (10th Cir. 1995) (citing Pallottino v.
City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.
1994)).
Plaintiff
seeks leave to amend to add a claim for common law
negligence, to include additional factual allegations
concerning his existing breach of contract claim, and add a
fraud claim. Dkt. # 39. Plaintiff states that this will not
“materially change the case, prejudice the parties, or
cause undue delay” and he is “just ensuring . . .
that he has all of his potential claims for relief fully
articulated in his [c]omplaint.” Id. at 1, 6.
Defendants respond that all of the claims that plaintiff now
seeks to add could have been alleged in his original
complaint, and plaintiff's attempt to
“clarify” his claims is a thinly-veiled attempt
to avoid previous unfavorable rulings. Dkt. # 40, at 3.
The
Court will initially consider whether plaintiff's motion
to amend is timely. The deadline in the amended scheduling
order (Dkt. # 36) to file motions to amend the complaint was
August 2, 2019, and plaintiff's motion (Dkt. # 39) was
filed on August 2, 2019. Even though the motion was timely
under the scheduling order, plaintiff repeatedly acknowledges
that he knew the factual basis for his new claims when the
case was filed, and plaintiff has not offered a plausible
explanation for failing to include these claims in his
original complaint or in his prior motion to amend.
See Dkt. # 39, at 6; Dkt. # 41, at 3 The substance
of the proposed amendments and the lack of a plausible
explanation for the delay in filing the motion created a
strong appearance that plaintiff is seeking leave to amend to
avoid the effect of unfavorable rulings on a motion to
dismiss and a prior motion to amend. Plaintiff states that he
is merely attempting to “clarify” the legal basis
for his claims. Dkt. # 39, at 1. However, he is attempting to
add new claims that would effectively substitute for the
negligence claim that was dismissed in the Court's ruling
on defendant's motion to dismiss. All of the claims in
plaintiff's proposed amended complaint could have been
asserted when the case was originally filed, and the Court
finds that plaintiff has not offered a plausible explanation
for failing to include the new claims in his original
complaint.
Even if
plaintiff's motion were timely, defendants argue that
plaintiff's proposed negligence claims is futile and
plaintiff is merely attempting to revive a claim that has
already been dismissed. The factual basis for plaintiff's
proposed negligence and breach of contract claims would be
that defendants should be held liable for allowing plaintiff
to drive when he advised defendants that he was not fit to
drive. Dkt. # 39, at 17. However, plaintiff testified at his
deposition that he was not forced to resume driving after he
discovered the alleged surveillance device and that told
defendants that he was ready to return to work. Dkt. # 40-1,
at 6-7. Plaintiff may have been involved in a single-vehicle
accident after he returned to work, but his deposition
testimony shows that he did not advise defendants that he was
unfit to drive. When asked who was responsible for the
accident, plaintiff claimed that it was the “road's
fault” and that he bore no responsibility for the
accident. Id. at 8-9. Plaintiff acknowledges that he
gave these responses in his deposition, and he argues that
these questions show that defendants were on notice that he
intended to pursue a negligence claim. However, his
deposition testimony also wholly undercuts the factual basis
for his proposed negligence claim, and it is not clear why
plaintiff's counsel filed this second motion to amend
when they were aware of plaintiff's deposition testimony.
The Court finds that plaintiff's proposed negligence
claim would be futile based on his own deposition testimony
that would contradict the allegations of the proposed amended
complaint. The lack of a factual basis for his negligence
claim also renders his proposed breach of contract claim
based on the parties' contract futile, because there is
no factual basis that would support allegations that
defendants should have been on notice that plaintiff was
unfit to drive.
The
Court finds that plaintiffs second motion to amend (Dkt. #
39) should be denied. Plaintiff could have included all of
the claims alleged in his proposed amended complaint when he
filed the original complaint, and plaintiff has offered no
plausible explanation for failing to include the new claims
in his original complaint. Plaintiff also previously filed a
motion to amend, and did not seek to add any of the claims
alleged in his proposed amended complaint. The Court
previously dismissed the negligence claim alleged in
plaintiffs original complaint, and plaintiffs motions to
amend (Dkt. ## 29, 39) create an appearance that he is
seeking to avoid this ruling by re-casting the same claim
under different legal theories. Plaintiff suggests that he is
merely seeking to “clarify” his claims, but this
would be more plausible if he were not attempting to add
wholly new claims for relief that would materially change the
nature of his lawsuit. Plaintiff should have included the new
claims in his original complaint or his prior motion to
amend, and the Court finds that plaintiffs second motion to
amend (Dkt. # 39) is untimely.
IT
IS THEREFORE ORDERED that Plaintiffs Opposed Motion
for Leave to File First Amended Complaint and Brief in
Support (Dkt. # 39) is denied.
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Notes:
[1] The breach of contract claims in
plaintiff's complaint (counts five and six) concern an
escrow fund and the proceeds of a property damage insurance
policy covering plaintiff's tractor-trailer, and these
claims are distinct from the new breach of contract ...