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Desai v. Charter Communications, LLC

United States District Court, W.D. Kentucky, Louisville Division

December 27, 2016

KRUTI DESAI, et al., Plaintiffs,


          David J. Hale, Judge United States District Court.

         Defendant Charter Communications, LLC filed an untimely motion for leave to amend its answer in this defamation case. (Docket No. 48) Charter offered no explanation or justification for its failure to comply with the deadline for amendment of pleadings. (See id.; D.N. 22) Magistrate Judge Dave Whalin denied the motion on the ground that Charter had failed to demonstrate good cause to alter the litigation schedule. (D.N. 59) Charter objects to that ruling. (D.N. 62) Because the Court agrees with Judge Whalin that Charter has not established the necessary good cause and that the plaintiffs would be prejudiced by the timing of the proposed amendment, Charter's objection will be overruled.

         I. BACKGROUND

         The plaintiffs are former Charter employees who were fired for accepting free computer printers offered to them by Charter's office supply administrator. (D.N. 7, PageID # 46, 48-50) This action arises from Charter's use of the term “Printer-gate” during a PowerPoint presentation to other employees after the plaintiffs' termination. The plaintiffs allege that Charter defamed them by identifying them as having been involved in “Printer-gate.”[1] (Id., PageID # 50-51)

         A. Motion for Leave to Amend

         On December 7, 2015, more than four months after the deadline for amendment of pleadings, Charter moved for leave to amend its answer to assert the affirmative defense of qualified privilege. (D.N. 48; see D.N. 22) The plaintiffs opposed Charter's motion, arguing that Charter had unduly delayed in seeking amendment and that they would be significantly prejudiced if the issue of qualified privilege were introduced at such a late stage of the case.[2](D.N. 53, PageID # 381-83) They further contended that Charter had been uncooperative with regard to discovery. (Id., PageID # 383) Charter replied that the plaintiffs would not be prejudiced by addition of the qualified-privilege defense because they had been on notice since June 2015-“months before Plaintiffs commenced any written discovery or depositions”-that Charter intended to assert it. (D.N. 55, PageID # 430) In addition, Charter noted that the first deposition taken in the case, that of former Charter Human Resources Director Rodger Simms, had “brought the qualified privilege directly in issue.” (Id., PageID # 432) And “Charter would be severely prejudiced, ” it argued, if it were not permitted to assert the privilege. (Id.)

         B. Magistrate Judge's Order Denying Leave to Amend

         Judge Whalin construed Charter's motion as a request to modify the scheduling order subject to Rule 16(b)'s good-cause standard.[3] (See D.N. 59, PageID # 453) Citing “the complete absence of good cause for the belated motion, and the resulting severe prejudice to the Plaintiffs from permitting such an untimely amendment, ” he denied the motion. (Id., PageID # 457; see id., PageID # 453 (citing In re Foss Maritime Co., No. 5:12-cv-21-GNS, 2015 WL 4163007, at *2 (W.D. Ky. July 9, 2015))) Judge Whalin's order explained:

Charter has not shown that despite its best efforts it was unable to meet the deadline for amendment of the pleadings. Charter was well aware of the existence of this affirmative defense, and indeed indirectly and informally suggested to counsel for the Plaintiffs the possibility that it might be raised. Yet[] after doing so[] immediately prior to the expiration of the amendment deadline, Charter took no formal action until six months later, less than one month before the closure of discovery.

(Id., PageID # 454-55)

         C. Charter's Objection

         In its objection to Judge Whalin's ruling, Charter claims for the first time that good cause exists because its delay in seeking leave to amend was due in part to the plaintiffs' late response to its written discovery requests. (See D.N. 62, PageID # 955-98; 1001-04) It maintains that amendment would result in no prejudice to the plaintiffs since (1) they have been on notice since June 2015 that the defense would be asserted and (2) to prove their defamation claim, they will have to establish that the defamatory statements were unprivileged. (See id., PageID # 1004-08) The plaintiffs filed a response to Charter's objection notwithstanding Local Rule 72.2, which prohibits responses to written objections “[u]nless directed by the Court.”[4] (D.N. 68) The Court heard oral argument concerning the objection on October 27, 2016. (See D.N. 80)


         The parties disagree as to the applicable standard of review. A magistrate judge's decision on a dispositive motion is subject to de novo review, while nondispositive rulings are reviewed for clear error. See 28 U.S.C. § 636(b)(1). Although a motion for leave to amend is not among the dispositive motions listed in § 636(b)(1)(A), the “practical effect” of Judge Whalin's ruling was to eliminate Charter's qualified-privilege defense, and it thus may be deemed dispositive. Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 517 (6th Cir. 2001); see id. at 514-15 (motions listed in statute “are called ‘dispositive' because they are ‘dispositive of a claim or defense of a party, ...

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