# Rover Pipeline LLC v. Zwick

> District Court, S.D. Ohio · June 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10378139

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10378139

## How later opinions describe it (automated extraction)

- 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”
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378139. Public record. Not legal advice.