The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KURT BILLIOT et al. CIVIL ACTION
VERSUS NO. 22-2331
BANKERS SPECIALTY INSURANCE CO. SECTION: “G”(4)
ORDER AND REASONS
This litigation arises out of alleged damage to Plaintiffs Kurt Billot and LaDonna Billot’s
(collectively, “Plaintiffs”) property during Hurricane Ida.1 Before the Court is Plaintiffs’ “Motion
for Appeal of R. Doc. No. 38” (the “Motion for Appeal”).2 In the Motion for Appeal, Plaintiffs
object to and seek review of the Magistrate Judge’s February 16, 2023 Order denying Plaintiffs
leave to file an amended complaint.3 Defendant Bankers Specialty Insurance Co. (“Defendant”)
opposes the motion.4 Having considered the motion, the memoranda in support and opposition,
the record, and the applicable law, the Court denies the motion.
I. Background
A. Factual Background
According to the Complaint, Plaintiffs allege that they notified Defendant, their home
insurance provider, of damage to Plaintiffs’ property (the “Property”) on or about August 29,
1 See Rec. Doc. 1.
2 Rec. Doc. 39.
3 See Rec. Doc. 39-1.
4 Rec. Doc. 43.
2021.5 Plaintiffs allege that they provided satisfactory proof of loss after Defendant’s October 21,
2021 inspection.6 Plaintiffs contend that Defendant has failed to pay for all the damage to the
Property, as required by the home insurance policy Plaintiffs purchased from Defendant to cover
the Property (the “Policy”).7 Plaintiffs further contend that, since Hurricane Ida, they and their
minor son, C.M.B., have been living in a garage that is not air conditioned, exposed to
“environmentally hazardous conditions,” “treated at the hospital for breathing issues,” and
“continue to live in a state of disarray which has taken an extreme mental and physical toll.”8
Plaintiffs assert that C.M.B. “suffers from severe depression and anxiety” and has been forced to
live with relatives for lengthy periods of time “due to the distress caused by living in the home.”9
In the Complaint, Plaintiffs bring claims against Defendant for breach of contract, bad faith, and
mental anguish under Louisiana law.10
B. Procedural Background
Plaintiffs filed the Complaint on July 26, 2022.11 On August 26, 2022, the Eastern District
of Louisiana issued Case Management Order No. 1 (the “CMO”) adopting a Streamlined
Settlement Program (“SSP”) for all Hurricane Ida claims.12 The CMO provided the “opportunity
for parties in previously filed cases to opt-in to the SSP by agreement of the parties and consent of
5 Rec. Doc. 1 at 3.
6 Id.
7 Id.
8 Id. at 4–5.
9 Id. at 5.
10 See id. at 6–9.
11 Rec. Doc. 1.
12 See Rec. Doc. 8.
the presiding District Judge.”13 On September 1, 2022, the parties received notice of the
opportunity to opt in to the SSP within fourteen days.14 The parties did not opt in to the SSP. On
September 28, 2022, the Court issued a Scheduling Order, which set an October 28, 2022 deadline
to amend pleadings.15
C. Magistrate Judge’s Decision
On December 19, 2022, Plaintiffs filed a “Motion for Leave to File First Supplemental and
Amended Complaint,” in which they sought to add C.M.B. as a plaintiff and to assert claims for
C.M.B.’s mental and physical anguish.16 In support of the motion, Plaintiffs quoted Federal Rule
of Civil Procedure 15(a)(2) and asserted without further explanation that granting the motion
would serve justice, promote judicial efficiency, and would not result in “undue prejudice, bad
faith, undue delay or futility.”17 Pursuant to Local Rule 72.1, the motion was automatically referred
to the assigned Magistrate Judge for determination.
Defendant opposed the motion for three reasons. First, Defendant argued that Plaintiffs only
cited Federal Rule of Civil Procedure 15(a)(2) as authority to support the motion without
addressing why they have good cause to amend the Scheduling Order or why such amendment
would not prejudice Defendant.18 Second, Defendant argued that expert disclosure deadlines have
passed and so “Defendant cannot now address new claims of mental anguish of parties which were
13 Id. at 10.
14 Rec. Doc. 9.
15 Rec. Doc. 12 at 2.
16 Rec. Doc. 22.
17 Rec. Doc. 22-1 at 2.
18 See Rec. Doc. 24 at 1–2; see also id. at 4.
not previously named.”19 Third, Defendant argued the amendment is frivolous because another
judge in the Eastern District of Louisiana has previously held that claims on behalf of an insured’s
children are not viable.20
In a February 16, 2023 Order denying the motion (the “Order”), the Magistrate Judge stated
that “when a party files an untimely motion for leave to amend and does not address the good cause
standard under Rule 16(b), the Court can deny the motion for that reason alone.”21 Therefore, the
Magistrate Judge was “not persuaded to grant [Plaintiffs] leave to amend their Complaint” because
they “presented no explanation for their untimely filing of their instant motion, nor shown any
good cause in accordance with Rule 16(b) (other than their mere citation to Rule 15).”22 Further,
the Magistrate Judge found that, “[e]ven if Plaintiffs could establish good cause under Rule 16(b),
the claims they wish to include in their complaint on behalf of their minor son are frivolous.”23
Thus, the Magistrate Judge denied Plaintiffs leave to file an amended complaint.24 Plaintiffs then
filed the instant Motion for Appeal of the Magistrate Judge’s Order.25 On February 27, 2023,
Defendant opposed the Motion for Appeal.26
19 Id. at 3.
20 Id. (quoting Gaffney v. State Farm Fire and Cas. Co., No. 07-7581, 2009 WL 1951889, at *2 (E.D. La.
July 2, 2009)).
21 Rec. Doc. 38 at 5 (citing Matias v. Taylors Int’l Servs., Inc., No. 09-3256, 2010 WL 3825402, at *2–3
(E.D. La. Sep. 24, 2010)).
22 Id. at 6.
23 Id. (citing Gaffney, 2009 WL 1951889).
24 Id. at 7.
25 Rec. Doc. 39.
26 Rec. Doc. 43.
II. Parties’ Arguments
A. Plaintiffs’ Motion for Appeal the Magistrate Judge’s Order
Plaintiffs appeal the Order and move the Court to review the decision. First, Plaintiffs argue
that there is good cause to amend the Complaint because: (1) Plaintiffs learned during a December
5, 2022 settlement conference that Defendant “would not settle for a penny more than they had
already paid to this point;” (2) the subject of the amendment, “[t]he health and wellness of a minor
in the household,” is of “utmost importance;” (3) Defendant would not be prejudiced because the
Complaint makes clear “since the inception of this matter that C.M.B. was living in the household
and was suffering due to [Defendant’s] negligence;” and (4) “any potential prejudice could be
cured if this Court postpones the trial and provides the party a limited opportunity to conduct a
limited discovery with a limitation on discovery solely for the new claims asserted.”27
Second, Plaintiffs argue that there is good cause under Rule 15 to amend the Complaint
because: (1) Plaintiffs were “not aware that [Defendant] would take the stance of not at least trying
to settle the claim in good faith” until December 5, 2022; (2) Plaintiffs are not trying to cure any
“continuous deficiencies” in the Complaint; and (3) the amendment is not futile given that “[t]he
Louisiana Civil Code recognizes that a third party beneficiary contract can exist, but provides few
governing rules.”28 Thus, Plaintiffs ask the Court to set aside the Magistrate Judge’s February 16,
2023 Order.29
27 Rec. Doc. 39-1 at 4–6.
28 Id. at 6–9 (citing La. Civ. Code arts. 1978–1982).
29 See id. at 9.
B. Defendant’s Arguments in Opposition to Plaintiffs’ Motion for Appeal
In opposition, Defendant asserts three arguments. First, Defendant argues that Plaintiffs
raise arguments in the Motion for Appeal not raised in the original Motion for Leave to Amend
the Complaint before the Magistrate Judge.30 Defendant asserts that, regardless, Plaintiffs base
good cause on “inadmissible settlement discussions” but “fail[] to explain why a [settlement]
conference in December excuses a failure to meet an October deadline for amendments.”31
Second, Defendant argues that the Magistrate Judge correctly decided that, even if
Plaintiffs could establish good cause to amend the Scheduling Order, the proposed amendments to
the Complaint would be futile.32 Defendant avers that Plaintiffs “make no attempt to produce case
law support for their argument or address the fact that [the Magistrate Judge] applied controlling
legal authority within this District as part of her analysis.”33
Third, Defendant argues that the Magistrate Judge’s decision “was supported by the simple
fact that Plaintiffs made no attempt to show the good faith standard for amendment under [] Rule
16(b).”34 Defendant asserts that Plaintiffs’ counsel “has continued to disregard the scheduling
orders of the [C]ourt,” failed to provide good cause to amend the scheduling order, and failed “to
address the controlling [and highly deferential] legal standard” for this appeal.35 Thus, Defendant
concludes that “there is simply no basis” to overturn the Magistrate Judge’s ruling.36
30 Rec. Doc. 42 at 1.
31 Id. at 2.
32 See id.
33 Id.
34 Id. at 3.
35 Id. at 4–5.
36 Id. at 5.
III. Legal Standard
A. Standard of Review of a Magistrate Judge’s Order
With certain exceptions not applicable here, a district judge “may designate a magistrate
judge to hear and determine any pretrial matter pending before the [district] court.”37 When
objections are raised to non-dispositive pretrial matters, a district court must consider them and
“modify or set aside any part of the order that is clearly erroneous or contrary to law.”38 Under this
highly deferential standard, the court will reverse only when “on the entire evidence [it] is left with
a definite and firm conviction that a mistake has been committed.”39
B. Leave to Amend
Federal Rule of Civil Procedure 16(b) governs the amendment of pleadings after the
scheduling order’s deadline to amend has expired.40 Rule 16(b) provides that once a scheduling
order has been entered, it “may be modified only for good cause and with the judge’s consent.”41
“The good cause standard requires the ‘party seeking relief to show that the deadlines cannot
reasonably be met despite the diligence of the party needing the extension.’”42 As the Fifth Circuit
has explained, the four factors bearing on good cause in the context of untimely motions to amend
pleadings are: (1) the explanation for the failure to timely move for leave to amend; (2) the
importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the
37 28 U.S.C. § 636(b)(1)(A).
38 Fed. R. Civ. P. 72(a).
39 United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
40 Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008); S&W Enters., L.L.C. v. SouthTrust
Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003).
41 Fed. R. Civ. P. 16(b)(4).
42 Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003) (quoting S&W Enters., 315 F.3d at
535; 6A Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990)).
availability of a continuance to cure such prejudice.43 Ultimately, whether to grant leave to amend
is “tempered by the necessary power of a district court to manage a case.”44
IV. Analysis
Plaintiffs appeal the Magistrate Judge’s February 16, 2023 Order denying Plaintiffs’
Motion for Leave to File an Amended Complaint.45 Pursuant to the Court’s Scheduling Order,
“[a]mendments to pleadings, third-party actions, cross claims, and counterclaims shall be filed no
later than October 28, 2022.”46 However, Plaintiffs filed their motion seeking leave to file an
amended complaint on December 19, 2022.47 Federal Rule of Civil Procedure 16(b) controls the
amendment of pleadings after the Scheduling Order’s deadline to amend has expired.48 The
Magistrate Judge denied Plaintiffs leave to amend the Complaint because they “presented no
explanation” for the untimely filing of their instant motion, nor shown any good cause in
accordance with Rule 16(b) (other than their mere citation to Rule 15).”49
The Court agrees with the Magistrate Judge’s description of Plaintiffs’ arguments in
support of their original motion for leave to amend the complaint. Plaintiffs’ briefing was
conclusory and provided no good cause for modifying the Scheduling Order.50 Now, Plaintiffs
43 Sw. Bell Tel. Co., 346 F.3d at 546 (quoting S&W Enters., 315 F.3d at 536)).
44 Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003) (citing Shivangi v. Dean Witter
Reynolds, Inc., 825 F.2d 885, 891 (5th Cir. 1987)) (applying the more deferential Federal Rule of Civil Procedure 15
analysis). See also Lackey v. SDT Waste & Debris Servs., LLC, No. 11-1087, 2014 WL 2861819, at *2 (E.D. La. June
23, 2014) (Milazzo, J.) (reversing Magistrate Judge’s grant of leave to amend).
45 Rec. Doc. 39.
46 Rec. Doc. 12 at 2.
47 Rec. Doc. 22.
48 Fed. R. Civ. P. 16(b).
49 Rec. Doc. 38 at 6.
50 See Rec. Doc. 22-1.
argue that good cause exists to modify the Scheduling Order because they learned on December 5,
2022 that Defendant was unwilling to settle their claims.51 In the instant motion, Plaintiffs also
address the other factors bearing on good cause enumerated by the Fifth Circuit.52 However,
Plaintiffs failed to present these arguments to the Magistrate Judge.53 A court may deny a motion
for leave to amend that does not address the good cause standard under Rule 16(b)(4) “for that
reason alone.”54 Given that Plaintiffs did not address the good cause standard under Rule 16(b)(4)
in their motion before the Magistrate Judge, the Order was not erroneous or contrary to law.55
Therefore, the Court must defer to the Magistrate Judge’s determination.56
Regardless, even if Plaintiffs had raised their arguments in support of the instant motion
to the Magistrate Judge, the Magistrate Judge would not have erred in denying Plaintiffs leave to
amend the Complaint. Plaintiffs argue that good cause exists to amend the Complaint because
Plaintiffs learned during a December 5, 2022 settlement conference that Defendant “would not
settle for a penny more than they had already paid to this point.”57 The Court is not persuaded that
the willingness of Defendant to settle Plaintiffs’ claims has any bearing on Plaintiffs’ desire to add
C.M.B. as an additional plaintiff with independent claims. Further, the Complaint references
51 Rec. Doc. 39-1 at 4–5.
52 Id. at 5–6.
53 See Rec. Doc. 22-1.
54 Matias v. Taylors Int’l Servs., Inc., No. 09-3256, 2010 WL 3825402, at *3 (E.D. La. Sep. 24, 2010) (citing
Wachovia Bank, Nat'l. Assoc. v. Schlegel, No. 09–1322 2010 WL 2671316 (N.D. Tex. June 30, 2010)).
55 Alternatively, the Magistrate Judge found that, even if Plaintiffs could establish good cause, “the claims
they wish to include in their complaint on behalf of their minor son are frivolous.” Rec. Doc. 38 at 6. Although the
Magistrate Judge’s determination appears to have merit, the Court does not reach this issue because Plaintiffs fail to
establish good cause to amend the Scheduling Order. See id. n.1.
56 See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
57 Rec. Doc. 39-1 at 4–6.
C.M.B.’s anguish, which suggests that Plaintiffs were aware of C.M.B.’s claims when initiating
this litigation but failed to add C.M.B. before the deadline to amend pleadings had passed. Thus,
even now, Plaintiffs have failed to provide the Court with good cause to amend the Scheduling
Order.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ “Motion for Appeal of R. Doc. No. 38”°° is
DENIED.
_ 28th
NEW ORLEANS, LOUISIANA, this day of February, 2023
NANNETTE JOLI BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
8 Rec. Doc. 39.
10