United States District Court, N.D. Indiana, Hammond Division
KENNETH L. PAGE, Plaintiff,
GRAND TRUNK WESTERN RAILROAD COMPANY, a corporation, Defendant.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Motion for Leave to File
First Amended Complaint and Jury Demand [DE 25] filed by the
plaintiff, Kenneth L. Page, on August 16, 2018. For the
following reasons, the motion is DENIED.
November 10, 2017 the plaintiff, Kenneth L. Page, initiated
this matter against the defendant, Grand Trunk Western
Railroad Company. Page has alleged in the complaint that on
January 13, 2015, while employed as a conductor for GTW, he
sustained injuries to his back when he attempted to couple
the airhoses of two railcars together. Page claimed that the
airhose on one of the railcars was out of alignment, and as a
result, he was unable to couple the airhoses in the proper
manner. Thus, Page asserts that GTW violated the Federal
Employers' Liability Act (FELA), 49 U.S.C. §51
et seq., and the Federal Safety Appliance Act
(FSAA), 49 U.S.C. §20302, by failing to inspect and
maintain its railcars and by failing to maintain a reasonably
safe work environment.
January 26, 2018, the court held the Rule 16 Preliminary
Pretrial Conference. At the conference, the court set March
15, 2018 as the deadline for Page to join additional parties
or to amend the pleadings. On July 24, 2018, at the
parties' request the court extended the discovery
deadline to January 2, 2019.
discovery, GTW has produced photographs and inspection
reports of the involved rail equipment. Moreover, on August
9, 2018 Page was deposed. Page contends that the documents
produced by GTW and his testimony indicate that the railcar
with the misaligned airhose was a locomotive. Therefore, Page
has requested leave to amend his complaint to add an
allegation that GTW violated the Federal Locomotive
Inspection Act, 49 U.S.C. §20701, et seq.,
(LIA). GTW filed a response in opposition on August 30, 2018,
and Page filed a reply on September 6, 2018.
Rule of Civil Procedure 15(a) provides that a party
may amend the party's pleading only by leave of court or
by written consent of the adverse party and that leave shall
be freely given when justice so requires. Because pleadings
merely serve to put the opposing side on notice, they should
be amended freely as the case develops, as long as amendments
do not unfairly surprise or prejudice the opposing party.
Rule 15(a); Jackson v. Rockford Housing Authority,
213 F.3d 389, 390 (7th Cir. 2000). The decision to deny leave
to amend a pleading is an abuse of discretion only if no
reasonable person could agree with the decision. Winters
v. FruBCon, Inc., 498 F.3d 734, 741 (7th Cir. 2007)
(quoting Butts v. Aurora Health Care, Inc., 387 F.3d
921, 925 (7th Cir. 2004)); Ajayi v. Aramark Business
Services, 336 F.3d 520, 530 (7th Cir. 2003).
to amend properly may be denied at the district court's
discretion for “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 of the
amendment, futility of amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d
222 (1962); Gandhi v. Sitara Capital Management, 721
F.3d 865, 868-869 (7th Cir. 2013). A motion to amend is more
likely to be denied if it takes place at a relatively late
stage in the proceedings. Aldridge v. Forest River,
Inc., 635 F.3d 870, 876 (7th Cir. 2011).
that courts should “freely give leave” to amend.
However, a different standard provided by Federal Rule of
Civil Procedure 16(b)(4) applies once the scheduled deadline
passes. See Tschantz v. McCann, 160 F.R.D. 568, 571
(N.D. Ind. 1995). Thus, “[t]o amend a pleading after
the expiration of the trial court's Scheduling Order
deadline to amend pleadings, the moving party must show
‘good cause'” to modify the schedule.
Trustmark Ins. Co. v. General & Cologne Life Re of
Am., 424 F.3d 542, 553 (7th Cir. 2005) (citing Federal
Rule of Civil Procedure 16(b)). In order to demonstrate good
cause, the plaintiff must show that despite his diligence he
could not have met the earlier deadline. See
Tschantz, 160 F.R.D. at 571.
deadline for Page to amend his pleadings was March 15, 2018.
Therefore, since Page has requested leave to amend the
complaint after the deadline, he first must establish
“good cause” for the untimely amendment. Page has
indicated that through discovery and his deposition testimony
it has been established that the vehicle with the attached
airhose, which he has alleged was not properly aligned for
coupling, was a locomotive. Therefore, Page asserts that the
LIA is applicable to this cause of action. Page also asserts
in the reply brief that “[f]rom the outset of this
matter, Defendant has been aware that Plaintiff's claim
concerned a misaligned train brake airhose and that both a
locomotive and a railcar were the involved equipment.”
GTW has argued that Page has failed to demonstrate good cause
under Rule 16. GTW asserts that Page has failed to explain
why he did not know that the locomotive had the misaligned
airhose from the date of the injury. Moreover, the proposed
amended complaint, attached to the instant motion as Exhibit
1, alleges the coupling of hoses between two railcars caused
his injury. Therefore, GTW contends that the LIA claim must
be referencing a completely separate incident.
has not demonstrated good cause for failing to include
allegations that he was aware of or should have been aware of
at the time the complaint was filed. The Seventh Circuit has
held that the court does not abuse its discretion denying
leave to amend when a party has failed to show good cause for
its failure to amend its complaint in a timely manner,
finding that the party was, or should have been, aware of the
facts underlying its claim. See Trustmark Ins. Co. v.
General & Cologne Life Re of America, 424 F.3d 542,
553 (7th Cir. 2005). Page's contention that he recently
became aware of the involved locomotive is unconvincing. Page
indicated that GTW has been aware from the outset of this
matter that his claim involved a locomotive and a railcar.
However, he has failed to indicate how at the time the
initial complaint was filed he was unaware that the
misaligned hose was attached to a locomotive. Moreover, Page
has not shown that despite his diligence he could not have
met the earlier deadline.
the only difference between the initial complaint and the
amended complaint is that in paragraph 17 Page has added the
following allegation: “n) In failing to comply with the
Federal Locomotive Inspection Act, 49 U.S.C. §20701,
et seq.” However, Page has not alleged any
factual allegations in the proposed amended complaint that
the locomotive had a misaligned airhose. Rather, the proposed
amended complaint retains the allegations from the initial
complaint that Page was injured while attempting to couple
airhoses between two railcars. “A court may deny leave
to amend where the proposed amendment fails to allege facts
which would support a valid theory of liability, . . . or
where the party moving to amend has not shown that ...