Rover Pipeline LLC v. Zwick

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROVER PIPELINE LLC,

Case No. 2:19-cv-4698

Plaintiff, Chief Judge Algenon L. Marbley

Magistrate Judge Kimberly A. Jolson

v.

AMY M. ZWICK, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion for Leave to File Second Amended

Complaint. (Doc. 73). For the following reasons, Plaintiff’s Motion is GRANTED, and the

Clerk is DIRECTED to docket Doc. 73-1 as the Second Amended Complaint. The stay on

briefing for the parties’ respective Motions for Summary Judgment (Docs. 68, 69) is hereby

LIFTED, and the parties are ORDERED to file their respective reply briefs fourteen (14) days

from the date of this Order.

I. BACKGROUND

The Court previously summarized the factual and procedural background of this case:

This case is the latest in an ongoing dispute between the parties over Plaintiff’s

pipeline construction in Monroe County. Plaintiff is an interstate natural gas

pipeline company with a permit to construct a pipeline through, among other

counties, Monroe County. (Doc. 30, ¶ 7). Defendants are Monroe County’s

Engineering and Sheriff’s Department, and several County officials and

employees. (Id., ¶¶ 10–16). The parties previously litigated a related dispute in

this Court, resulting in the issuance of a Temporary Restraining Order. See Rover

Pipeline LLC v. Zwick, et al, 2:17-cv-00988, Doc. 37 (S.D. Ohio Oct. 31, 2019).

Relevant here, the parties entered into a Road Use Agreement and Maintenance

Agreement (“RUMA”) that is at the center of this dispute. (Id., ¶ 22). Plaintiff

alleges that, after it constructed the pipeline, Defendants prevented it from

completing final remediation activities in Monroe County. (Id., ¶¶ 30–33, 42–44).

Specifically, Plaintiffs allege, Defendants removed Plaintiff and its agents from its

private property in Monroe County and barred them from returning to that

property or using the County’s public roads. (Id., ¶¶ 42–43). After a significant

delay that caused Plaintiff to incur more than $500,000 in alleged damages,

Defendants permitted Plaintiff to return to their property and complete the project.

(Id., ¶¶ 55–56).

(Doc. 29 at 1–2).

On December 23, 2019, Defendants filed a Motion to Dismiss arguing, among other

things, that Plaintiff’s Complaint “fails on the merits.” (Doc. 10 at 4). While that Motion was

being briefed, the parties filed their Rule 26(f) Report and agreed that “any motion to amend the

pleadings or to join additional parties shall be filed by May 27, 2020.” (Doc. 20). The Court

adopted the proposed deadlines and issued a scheduling order. (Doc. 21). Shortly thereafter,

Plaintiff moved to amend its complaint, seeking to add several additional parties and claims.

(See generally Doc. 25). Defendants indicated their opposition to Plaintiff’s Motion, and the

Court ordered expedited briefing. (Doc. 26). Ultimately, the Court granted Plaintiff’s Motion

and directed the Clerk to docket the attached First Amended Complaint. (See Docs. 29, 30).

Defendants filed their Answer to the First Amended Complaint on July 13, 2020. (Doc. 31).

“‘Because the original complaint ha[d] been superseded and nullified’” the Court denied

Defendants’ Motion to Dismiss without prejudice as moot. (See Doc. 33 (quoting Glass v. The

Kellogg Co., 252 F.R.D. 367, 368 (W.D. Mich. 2008)).

While the parties pursued mediation in February of 2021, those discussion proved

unsuccessful. (Doc. 41). The Court then directed the parties to file a joint status report

summarizing any remaining discovery and setting forth a proposed revised case schedule. (Doc.

43). While the Court adopted that proposed revised schedule (see Doc. 51), those deadlines were

further amended as the case progressed. (See Docs. 47, 51, 52, 56). Notably, however, the

previously set amendment deadline was never changed. On April 23, 2021, the parties filed

competing Motions for Summary Judgment. (See Docs. 68, 69). While those Motions were

being briefed, Plaintiff filed the instant Motion for Leave to File Second Amended Complaint.

(Doc. 73). The Court expedited briefing on Plaintiff’s Motion and stayed briefing on the parties’

respective Motions for Summary Judgment. (Doc. 75). Defendants responded to Plaintiff’s

Motion on May 24, 2021, (Doc. 76), and Plaintiff filed its reply on May 27, 2021 (Doc. 77). The

Motion is now ripe for review.

II. STANDARD

Two federal rules govern Plaintiff’s Motion. Rule 15(a)(2) of the Federal Rules of Civil

Procedure provides that when a party seeks leave of court to file an amended pleading, “[t]he

court should freely give leave when justice so requires.” This rule, which allows a liberal policy

in favor of granting amendments, “reinforce[s] the principle that cases ‘should be tried on their

merits rather than the technicalities of pleadings.’” Inge v. Rock Fin. Corp., 388 F.3d 930, 936

(6th Cir. 2004) (quoting Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986)). Thus,

the trial court enjoys broad discretion in deciding motions for leave to amend. See Gen. Elec.

Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). In exercising its discretion, the

trial court may consider such factors as “undue delay, bad faith or dilatory motive on the part of

a movant, repeated failures to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of the

amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).

But because Plaintiff moved to amend after the Court’s March 27, 2020, amendment

deadline, it “must meet the higher threshold for modifying a scheduling order found in Rule

16(b).” Shane v. Bunzl Distrib. USA, Inc., 275 F. App’x 535, 536 (6th Cir. 2008). This means

Plaintiff must “show good cause under Rule 16(b) for the failure to seek leave to amend prior to

the expiration of the deadline before [the Court] will consider whether the amendment is proper

under Rule 15(a).” Hill v. Banks, 85 F. App’x 432, 433 (6th Cir. 2003). “[T]he touchstone of

the good cause inquiry under Rule 16(b) is whether the moving party acted diligently in

attempting to meet the deadline set forth in the pretrial order.” Permasteelisa CS Corp. v.

Airolite Co., LLC, No. 2:06-cv-0569, 2007 WL 1683668, at *2 (S.D. Ohio June 8, 2007).

III. DISCUSSION

As noted, the Court must first decide whether Plaintiff has shown good cause under Rule

16(b) before turning to Rule 15(a)’s more generous standard. First, however, the Court finds it

prudent to frame the parties’ dispute.

In their Motion for Summary Judgment, Defendants asserted that Plaintiff “did not sue

the right party.” (See Doc. 69 at 43). They argue that because Plaintiff failed to include Monroe

County, Ohio, as a defendant, the named Defendants “are entitled to summary judgment because

they are not parties to the contract [at issue.]” (Id.). While Plaintiff “does not believe an

amended complaint is necessary in light of its express and affirmatively plead Complaint against

[] Monroe County, Ohio[,]” they filed the instant motion “out of an abundance of caution.”

(Doc. 73 at 5). In other words, Plaintiff seeks to add Monroe County as a Defendant in case its

pleadings were not clear enough before. While the parties’ briefing on Plaintiff’s Motion for

Leave to File Second Amended Complaint frequently touches upon the merits of Plaintiff’s case,

the only relevant question here is: Has Plaintiff satisfied the standards in Rules 16(b) and 15(a) in

seeking leave to amend its Complaint for a second time. The Court finds it has.

A. Rule 16(b)

In evaluating good cause under Rule 16(b), Plaintiff’s diligence is key. Cooke v. AT&T

Corp., No. 2:05-cv-374, 2007 WL 188568, at *2 (S.D. Ohio Jan. 22, 2007); see also E.E.O.C. v.

U-Haul Int’l, Inc., 286 F.R.D. 322, 325 (W.D. Tenn. 2012) (noting that whether movant was

“diligen[t] in attempting to meet the requirements of the scheduling order is the primary measure

of Rule 16(b)’s ‘good cause’ standard”). The moving party may still be deemed to have acted

diligently when the factual basis supporting an amendment is not disclosed until after the

deadline set in the scheduling order. Cooke, 2007 WL 188568, at *2. Plaintiff has shown good

cause here.

Plaintiff asserts that it has demonstrated “good cause” under Rule 16(b) because the

factual basis supporting its proposed amendments was not disclosed until after the deadline to

amend and that adding Monroe County will not unduly prejudice Defendants. (Doc. 73 at 7).

Specifically, Plaintiff argues––here and in its own Motion for Summary Judgment––that because

it affirmatively, if indirectly, included claims against Monroe County in its Complaint it did not

believe amendment was necessary. (Id.). Plaintiff represents that “[it] could not have known []

Defendants’ legal position until it was included in [their] Motion for Summary Judgment[.]”

(Id.). Upon realizing that Defendants were arguing Plaintiff had failed to properly include

Monroe County, Plaintiff quickly moved to amend. (Id.). Still, Defendants insist that Plaintiff

“knew or should have known” of this alleged deficiency “long before the pleadings amendment

deadline[.]” (Doc. 76 at 11).

Upon review, the Court finds Plaintiff was sufficiently diligent in seeking leave to amend

after Defendants filed their dispositive motion. Woods v. FacilitySource, LLC, No. 2:13-cv-621,

2014 WL 1783942, at *2 (S.D. Ohio May 5, 2014) (granting leave to amend where “[t]he record

provid[ed] no basis from which [the] Court could conclude that Defendants lacked diligence in

conducting discovery or in moving the Court after they discovered their claim”). Indeed, the

Court has no reason to doubt Plaintiff’s representations.

Further, as the proposed amendments do not add any new claims or introduce any new

facts, the Court is satisfied that Defendants will not be required to incur significant additional

costs in discovery or be required to develop a new litigation strategy. See Chkrs, LLC v. City of

Dublin, Ohio, No. 2:18-CV-1366, 2019 WL 3975447, at *13 (S.D. Ohio Aug. 22, 2019) (finding

no undue prejudice where “granting leave to amend will not require Defendants to expend

significant additional resources to conduct discovery and prepare for trial”) (citation, internal

quotations, and alteration omitted). The Court find Defendants’ claims of prejudice exaggerated.

While they allege that granting amendment will require “additional motions practice” and

“additional discovery[,]” they devote only one paragraph of their summary judgment motion

arguing Plaintiff failed to properly include Monroe County. (See Doc. 69 at 35). If this issue

were as substantial as they assert, surely they would have spent more time and effort seeking

summary judgment on those grounds. More importantly, a bit more of required discovery

generally does not change the Court’s good cause finding. See U-Haul Int’l, Inc., 286 F.R.D. at

325 (“Prejudice to the non-moving party is a relevant consideration [in a 16(b) analysis], ‘but the

main focus should remain on the moving party’s exercise of diligence.’”) (quoting Cooke, 2007

WL 188568, at *2).

Thus, pursuant to its “broad discretion in deciding motions for leave to amend,” the Court

finds that Plaintiff has exercised diligence in attempting to adhere to this Court’s case schedule

and fulfilled Rule 16(b)’s good cause requirement.

B. Rule 15(a)

Turning to Rule 15(a), Plaintiff has satisfied this standard as well. The Court finds no

evidence of bad faith or dilatory motive on Plaintiff’s part. Nor have there been repeated failures

to cure deficiencies by amendments previously allowed. See Foman, 371 U.S. at 182.

As for futility, Defendants claim that “[i]t would be futile to add Monroe County [] to this

action now because any federal constitutional or state law tort claims would be barred by the

statute of limitations.” (Doc. 76 at 14). Yet, at this stage, the Court’s role is to evaluate

“whether the futility of an amendment is so obvious that it should be disallowed.” Bear v.

Delaware Cnty., Ohio, No. 2:14-CV-43, 2015 WL 1954451, at *3 (S.D. Ohio Apr. 28, 2015).

On their face, the proposed amendments (Doc. 73-1) are not so futile and they meet this low bar

as a result. The parties should note, however, the Court is not making any determination about

whether or not Plaintiff properly included Monroe County in the first instance. And, in ruling on

the competing Motions for Summary Judgment, the Court may entertain any such argument,

irrespective of the Undersigned’s determination here.

Accordingly, Plaintiff’s proposed amendments are not so “obviousl[y] [futile] that [they]

should be disallowed.” Bear, 2015 WL 1954451, at *3. Any further scrutiny would require the

Undersigned to directly address the merits of the proposed Second Amended Complaint. See id.

It is “the better exercise of discretion to permit the amendment” and allow Plaintiff to address the

sufficiency of the pleadings in a dispositive motion before the District Judge. Id.; see also

Durthaler v. Accounts Receivable Mngmt., Inc., 2:10-cv-1068, 2011 WL 5008552, at *4 (S.D.

Ohio Oct. 20, 2011) (“[I]t is usually a sound exercise of discretion to permit the claim to be

pleaded and to allow the merits of the claim to be tested before the District Judge by way of a

motion to dismiss.”); Brown v. Worthington Steel, Inc., 211 F.R.D. 320, 323 (S.D. Ohio 2002)

(noting that “[a] court will not ordinarily consider the merits of a proposed amended complaint in

ruling on a motion for leave to amend unless it appears to be frivolous”).

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion is GRANTED, and the Clerk is

DIRECTED to docket Doc. 73-1 as the Second Amended Complaint. The stay on briefing for

the parties’ respective Motions for Summary Judgment (Docs. 68, 69) is hereby LIFTED and

they are ORDERED to file their respective reply briefs fourteen (14) days from the date of this

Order.

IT IS SO ORDERED.

Date: June 29, 2021 /s/Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE