United States District Court, D. Kansas
MEMORANDUM AND ORDER
GERALD RUSHFELT, Magistrate Judge.
Plaintiff S.C. Realty Services, Inc. currently has three motions pending before the Court which are either unopposed or were not responded to as of the date of this order. On July 14, 2015 Plaintiff filed an unopposed motion for an extension of time to disclose their experts (ECF 46). Prior to that, Plaintiff filed a motion to amend their complaint (ECF 41) with a response due on June 29 per Local Rule 6.1(d)(1). A response to this motion was never filed with the Court. Lastly, Plaintiff filed a motion for an extension of time to file response to defendant's first request for production and first interrogatories (ECF 40). A response to this motion was not filed and Plaintiff did not respond to a request for consent ( Id at ¶ 6). For the reasons stated below, all three motions contemplated in this order are GRANTED.
PLAINTIFF'S MOTION TO EXTEND TIME FOR EXPERT DISCLOSURES (ECF 46)
On July 14, 2015 Plaintiff filed an unopposed motion for an extension of time to disclose their expert witnesses. Per the Scheduling Order, Plaintiff's deadline for expert disclosures was July 15, 2015 (ECF 37) but Plaintiff requested this extension in part because additional time was required in order to review the 37, 456 pages the parties have produced so far in discovery (ECF 46 ¶ 2). Moreover, in the interest of fairness, Plaintiff also moved to extend defendants' deadline to disclose experts from September 15, 2015 to October 15, 2015 and to extend the deadline to disclose rebuttal experts from October 30, 2015 to November 9, 2015 ( Id at ¶ 4). The motion asserted that defense counsel was informed of these requests and had no objection to them ( Id at ¶ 3). Fed.R.Civ.P. 16(b)(4) states that a scheduling order can be modified for good cause and with the judge's consent. The Court finds that since the parties agreed to an extension, there are voluminous documents to review, and no previous extensions have been sought, there is good cause to modify the scheduling order as follows:
1. Plaintiff shall disclose its expert(s) no later than August 17, 2015.
2. Defendants shall disclose their expert(s) no later than October 15, 2015.
3. Rebuttal expert(s) shall be disclosed no later than November 9, 2015.
PLAINTIFF'S MOTION TO AMEND COMPLAINT (ECF 41)
Plaintiff's complaint (ECF 1) was removed from Johnson County District Court on February 2, 2015 and Plaintiff filed the instant motion to amend the complaint (ECF 41) on June 15, 2015. Pursuant to Local Rule 6.1(d)(1), Defendants had 14 days to respond to this motion and a response still has not been filed with the Court.
Plaintiff contends that amending the complaint is necessary on the grounds that the first amended complaint (ECF 41-1) "would bring its claims current with the facts and discovery in this case" (ECF 41, p 1). This is based on the Plaintiff's assertion that since the case was removed from Johnson County District Court, several developments have happened including a deposition, initial disclosures (including tens of thousands of pages in documents), and a preliminary injunction hearing ( Id ). Moreover, the parties continue to operate competing businesses and work through the issues associated with their recently completed asset purchase with Plaintiff contending that they continue to lose customers and employees due to Defendants' interference ( Id ).
Fed. R. Civ. P. 15(a)(2) allows the amendment of a pleading only with the other party's consent or with the court's leave. The rule clearly states that "the court should freely give leave when justice requires."
When interpreting this rule, the Supreme Court noted "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason-such as 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.-the leave sought should, as the rules require, be freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962).
There is nothing in the record even remotely suggesting bad faith or dilatory motive on the part of the Plaintiffs in filing the instant motion and this is the first amendment they have sought. Therefore, the only two factors needing evaluation in this matter are whether ...