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Energy Consumption Auditing Services, LLC v. Brightergy, LLC

United States District Court, D. Kansas

September 12, 2014

ENERGY CONSUMPTION AUDITING SERVICES, LLC, Plaintiff/Counterclaim Defendant,
v.
BRIGHTERGY, LLC, Defendant/Counterclaim Plaintiff,
v.
KRISTINE CANADY, Counterclaim Defendant.

MEMORANDUM AND ORDER ON MOTION FOR LEAVE TO FILE AMENDED ANSWER

KENNETH G. GALE, Magistrate Judge.

Now before the Court is the "Motion for Leave to File Amended Answer to Brightergy, LLC's Counterclaim and Third-Party Complaint Against SolarWorld Americas, LLC" filed by Plaintiff Energy Consumption Auditing Services, LLC (hereafter "ECAS") and Kristine Canady. (Doc. 41.) For the reasons set forth below, the motion is DENIED.

BACKGROUND

The present matter derives from an independent contractor agreement that allowed ECAS to market, sell, and install the solar products of SolarWorld Americas. ECAS entered into a contract with the City of North Kansas City ("NKC") to provide SolarWorld products. ECAS alleges that Defendant Brightergy, a competing solar energy company, engaged in misconduct that deprived ECAS of certain benefits of its contract with NKC. As a result, Plaintiff seeks injunctive relief "preventing [Brightergy] from interfering in any way with ECAS' performance of its contractual relationship with NKC...." (Doc. 1, at 10.) ECAS also brings claims for tortious interference with contract, tortious interference with a prospective business relationship, unfair competition pursuant to the Lanham Act, business defamation, libel, and injurious falsehood.

Brightergy answered, raising certain affirmative defenses and generally denying ECAS's claims and bringing a counterclaim against ECAS as well as Kristine Canady, President of ECAS (collectively referred to as "Counterclaim Defendants"). (Doc. 5.) Brightergy contends that Counterclaim Defendants made patently false, fraudulent, and defamatory representations to NKC about Brightergy. Brightergy brings claims against Counterclaim Defendants for tortious interference with a prospective business relationship, common law unfair competition, defamation, and injurious falsehood.

Plaintiff/Counterclaim Defendant ECAS previously and timely filed a Motion to Amend on May 9, 2014. (Doc. 33.) That motion sought leave to add two Brightergy employees as named party Defendants - John Sedlock, who ECAS believed to be the Director of Business Development for Brightergy, and Jason Aytes, who ECAS believed to be the Director of Sales and Finance for Brightergy. ( Id. ) Although the Court granted that motion as unopposed on May 27, 2014 (Doc. 37, text entry), to date, some three and half months later, ECAS has not filed the amended pleading. That Order instructed ECAS to file its amendment "forthwith." Although this language was inexact, it is obvious that "forthwith" does not mean three months later. ECAS may not now file that previously requested amendment.

In the present motion, Counterclaim Defendants request leave to file an Amended Answer to Brightergy's Counterclaim that would also include a new, third-party indemnity claim against SolarWorld, which is currently not a party to this litigation. (Doc. 41.) The Scheduling Order contained a May 9, 2014, deadline to amend pleadings. (Doc. 16, at 8.) The present motion was not filed until July 11, 2014, thus Counterclaim Defendants must request to modify the Scheduling Order pursuant to Fed.R.Civ.P. 16(b) to allow them to bring their motion out of time. (Doc. 41.)

DISCUSSION

A motion to modify the Scheduling Order is governed by Fed.R.Civ.P. 16(b)(4), which mandates that "[a] schedule may be modified only for good cause and with the judge's consent."

To establish good cause' the moving party must show that the scheduling order's deadline could not have been met with diligence. Parker v. Central Kansas Medical Center, 178 F.Supp.2d 1205, 1210 (D.Kan.2001); Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan.1993). This rule gives trial courts wide latitude in entering scheduling orders, ' and modifications to such orders are reviewed for abuse of discretion.' In re Daviscourt, 353 B.R. 674, (B.A.P. 10th Cir.2006) (citing Burks v. Okla. Publ'g Co., 81 F.3d 975, 978-79 (10th Cir.1996)).

Grieg v. Botros, No. 08-1181-EFM-KGG, 2010 WL 3270102, at *3 (D.Kan. Aug. 12, 2010). It is well-established in this District that motions to modify a scheduling order focus "on the diligence of the party seeking to modify the scheduling order." Id. (citing Leviton Mfg. Co., Inc. v. Nicor, Inc., 245 F.R.D. 524, 528 (D.N.M.2007) (internal citations omitted)).

Counterclaim Defendants argue they should be allowed to amend out of time because of "the discovery of new evidence unavailable at the time ECAS and Canady filed their Answer to Brightergy's Counterclaim." ( Id., at 3.) The newly discovered evidence advanced by Counterclaim Defendants came in response to a third-party subpoena Brightergy served on NKC on April 10, 2014. (Docs. 20, 24.) Counterclaim Defendants contend that the documents, including minutes from a North Kansas City council meeting of April 15, 2014, and certain e-mails,

introduce new facts not previously known to ECAS that are relevant to ECAS's defenses to Brightergy's claims and raise a claim of indemnity against SolarWorld as they relate to purported statements made by SolarWorld to NKC regarding the validity and ...

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