United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
case comes before the court on Defendant 818 Aviation's
motion to modify the pretrial order. (Doc. 97.) The motion
has been fully briefed and is ripe for decision. (Docs. 98,
102, 103.) 818's motion is DENIED for the reasons stated
Facts and Procedural History
Engineering (“D-J”) filed this declaratory
judgment action on January 24, 2014, regarding a dispute
between the parties concerning work performed by D-J on
aircraft components for 818. (Doc. 1.) On February 13, 2014,
818 filed an action against D-J in California state court.
That action was removed by D-J to the Central District of
California and later transferred to this court. (Case No.
14-1126, Docs. 1, 17.) 818's complaint alleged claims of
breach of contract, breach of warranty, bad faith,
negligence, fraud, and conversion. The two actions were
consolidated and Case Number 14-1033 is the lead case. (Doc.
February 23, 2015, the parties attended mediation and
partially settled this matter. After the mediation, however,
818 refused to execute the written settlement agreement that
reflected the agreed-to terms. Judge Robinson entered an
order granting D-J's motion to enforce the settlement
agreement and instructed the parties to execute the same.
(Doc. 39.) The parties then executed a settlement agreement,
which resolved part of the claims at issue. D-J reserved its
claim for an unpaid invoice and 818 reserved its claims for
damages to parts owned by 818 that were allegedly caused by
excessive pitting, axle nut thread damage or improper
overhaul. (Doc. 102, Exh. 17.) The terms of the settlement
agreement required D-J to inspect certain aircraft parts,
referred to as Set 2 and Set 3, and certify that the parts
were suitable for sale. (Id.)
February 19, 2016, 818 filed a motion to set aside the
settlement or, in the alternative, amend 818's complaint.
(Doc. 47.) Judge Robinson denied 818's motion, stating,
“if any party has stalled or avoided its
responsibilities under the agreement, it appears to be
818.” (Doc. 52 at 5.) With respect to the motion to
amend, 818 asserted that D-J had failed to perform the
settlement agreement and “has broken one of 818's
parts.” (Doc. 47 at 5.) Judge Robinson denied the
motion to amend on the basis that it was untimely.
5, 2016, an amended scheduling order was entered and set the
discovery deadline for January 27, 2017. 818 did not serve
written discovery on D-J until November 30, 2016. On February
10, 2017, 818's counsel notified D-J's counsel that
D-J could pick up Set 2 in order to complete the
certification pursuant to the settlement agreement. (Doc. 98,
Exh. I.) D-J allegedly has failed to do so.
February 24, Magistrate Judge O'Hara ordered all
production of documents to occur by March 17 and allowed each
party to conduct one follow-up deposition. (Doc. 60.) On
February 28, 2017, the pretrial order was entered. (Doc. 62.)
The pretrial order identifies the parties' claims as
those claims that were reserved after settlement. On June 13,
2017, counsel for the parties exchanged emails regarding the
need for additional parts. (Doc. 102, Exh. 30.) The June 13
email referenced a previous June 14, 2016, email by Brenda
Ives, an employee of D-J, in which Ives requested 818 to
provide parts to complete work on part bearing Serial Number
T0347. (Doc. 102, Exh. 29.)
September 14, 2017, the trial was set in this matter for
April 2, 2018. (Doc. 76.) On March 2, 2018, the court vacated
the trial date after 818 informed the court that it believed
D-J had breached the settlement agreement and 818 planned to
move to modify the pretrial order. (Doc. 91.) The court set a
deadline of March 19 for 818 to file a motion to modify the
pretrial order. (Id.) 818 missed the filing deadline
and this court allowed 818 to file a motion to modify the
pretrial order out of time. (Doc. 96.)
seeks to add a claim of breach of the settlement agreement to
the pretrial order. 818 contends that D-J has breached the
settlement agreement by failing to pick up Set 2, failing to
certify Set 3, and insisting on replacement parts from 818.
D-J objects to the modification on the basis that it would
prejudice D-J and 818 has failed to establish that manifest
injustice would result if the modification was not allowed.
pretrial order controls the course of litigation. D. Kan. R.
16.2(b). “As such, claims, issues, defenses, or
theories of damages not included in the pretrial order are
waived.” Wilson v. Muckala, 303 F.3d 1207,
1215 (10th Cir. 2002). Pursuant to Fed.R.Civ.P. 16(e), a
final pretrial order may only be modified “to prevent
burden of demonstrating manifest injustice falls upon the
party moving for modification.” Koch v. Koch
Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000). The
court is to consider the following factors: “(1)
prejudice or surprise to the party opposing trial of the
issue; (2) the ability of that party to cure any prejudice;
(3) disruption to the orderly and efficient trial of the case
by inclusion of the new issue; and (4) bad faith by the party
seeking to modify the order.” Id.
contends that there is no prejudice to D-J because, if the
claim is not added, another lawsuit will be filed by 818.
(Doc. 98 at7.) In response, D-J states that the modification
would result in significant prejudice. D-J states that the
mediation in this matter occurred more than three years ago.
The issues related to the alleged breach of the settlement
agreement have not been pursued in discovery and therefore
would require additional discovery. D-J has incurred
substantial attorney's fees in this litigation in its
efforts to force 818 to comply with the settlement agreement.
In its reply, 818 makes no attempt to dispute the allegations
of prejudice to D-J or identify the ability to cure such
prejudice. Instead, 818 spends significant briefing on the
merits of its new ...