United States District Court, E.D. Kentucky, Southern Division, Pikeville
BETTY CASEY, Administratrix of the Estate of John Alexander y, Deceased, Plaintiff,
JONATHAN ROUSE, Defendant.
ORDER AND OPINION
K. CALDWELL, CHIEF JUDGE.
matter is before the Court on Plaintiff's Motion for
Leave to File an Amended Complaint under Federal Rule of
Civil Procedure 15. (DE 24.) For the reasons stated below,
that Motion (DE 24) is GRANTED.
case arises out of the death of John Alexander Casey, who was
shot and killed by Defendant Jonathan Rouse of the Kentucky
State Police (“KSP”). (DE 1 at 1.) Casey's
mother, as Administratrix of his Estate, brought this suit
alleging battery, wrongful death pursuant to Ky. Rev. Stat.
§ 411.130, and violations of the Fourth Amendment, the
Civil Rights Act of 1871, and 42 U.S.C. § 1983. (DE 1 at
6.) Plaintiff now seeks to amend her Complaint to delete
parties and causes of action previously dismissed by the
Court and to correct the allegations from the initial
complaint to conform with facts adduced in discovery. (DE 24
initial Complaint alleged as follows: KSP Troopers Rouse and
Rowe arrived at Casey's residence to arrest him on a
bench warrant for failure to appear in court. (DE 1 at 4.)
Upon their arrival, they encountered Casey, who did not
appear to be armed or threatening. (DE 1 at 4.) After Casey
was advised by the Troopers that they were there to arrest
him, Casey fled up a hill adjacent to his residence. (DE 1 at
4.) Then, “Casey may have picked up a rock or an empty
blue Pepsi can to throw at Defendant Rouse.” (DE 1 at
5.) Thereafter, Casey was shot by Rouse before he threw
anything. (DE 1 at 5.) Casey died from the single gunshot
wound, and at the time he was shot, he was not armed or
threatening. (DE 1 at 5.)
proposed Amended Complaint changes the facts slightly. It
alleges as follows: Rouse and Rowe drove to the residence of
Lacy Wolford in Pike County, Kentucky, to question Wolford
about an alleged assault. (DE 24-1 at 2.) While at
Wolford's residence, the Troopers encountered Casey, who
lived next door and did not appear to be in possession of a
weapon. (DE 24-1 at 2-3.) Troopers spoke with Casey and
performed a warrant check, which revealed that a bench
warrant had been issued for Casey's arrest for
non-payment of a fine for a minor violation. (DE 24-1 at 3.)
Thereafter, the Troopers advised Casey that he was under
arrest. (DE 24-1 at 3.) Wolford-who was also on the
scene-then fled, and both Troopers pursued him, leaving Casey
unrestrained and unattended. (DE 24-1 at 3.) When Rouse
returned, Casey was gone. (DE 24-1 at 3.) Rouse then walked
toward Casey's residence and advised Casey's
girlfriend and two minor females that he intended to call
Social Services. (DE 24-1 at 3.) Thereafter, a verbal
altercation ensued, and Rouse walked back toward his cruiser
to call Social Services. (DE 24-1 at 3.) At that time, Casey
reappeared on a hill above Rouse. (DE 24-1 at 3.) Rouse and
Casey had a verbal altercation, and Casey may have thrown a
rock at Rouse, which missed. (DE 1 at 5; DE 24-1 at 3.) Rouse
then drew his gun and fired at Casey, killing him. (DE 24-1
at 3.) At the time Casey was shot, he was not armed or
threatening. (DE 24-1 at 3-4.)
Federal Rules of Civil Procedure (“FRCP”) permit
any party to “amend its pleading once as a matter of
course within 21 days after serving it, or if the pleading is
one to which a responsive pleading is required, 21 days after
service of a responsive pleading.” Fed.R.Civ.P.
15(a)(1). “In all other cases, a party may amend its
pleading only with the opposing party's written consent
or the court's leave. The court should freely give leave
when justice so requires.” Fed.R.Civ.P. 15(a)(2).
However, this window of opportunity is not indefinite.
See Shane v. Bunzel Distribution USA, Inc., 275
Fed.Appx. 535, 536 (6th Cir. 2008). “Once a pleading
deadline has passed, litigants must meet the higher threshold
for modifying a scheduling order found in Rule 16(b).”
Id. See also Leary v. Daeschner, 349 F.3d
888, 906-07 (6th Cir. 2003); Birchwood Conservancy v.
Webb, 302 F.R.D. 422, 424 (E.D. Ky. 2014). FRCP 16(b)(4)
states that “[a] schedule may be modified only for good
cause and with the judge's consent.” Good cause
requires the late moving litigant to show that “despite
their diligence they could not meet the original
deadline.” Leary, 349 F.3d at 907.
determining whether to grant a motion to amend a complaint,
the court should consider the Foman factors: (1)
undue delay in filing the motion; (2) lack of notice to
adverse parties; (3) whether the movant is acting in bad
faith, or with a dilatory motive; (4) failure to cure
deficiencies by previous amendments; (5) the possibility of
undue prejudice to adverse parties; and (6) whether the
amendment is futile. Foman v. Davis, 371 U.S. 178,
the proposed Amended Complaint deletes parties and causes of
action previously dismissed by the Court, and it corrects the
allegations from the initial Complaint to conform with facts
adduced in discovery. (DE 24 at 1.) Rouse asserts that
amending the Complaint at this stage would be unduly
prejudicial due to discovery deadlines. (DE 28 at 2.)
However, Rouse does not explain why deleting the parties and
causes of action that have been dismissed by the Court and
clarifying the facts would prejudice him.
the Complaint is unnecessary. There is no need to amend a
complaint to delete parties and dismissed claims because the
Court knows which parties and claims it has dismissed.
See Johnson v. Cleveland City Sch. Dist., 344
Fed.Appx. 104, 114 (6th Cir. 2009). Additionally, facts
adduced in discovery are before the Court regardless of
whether they are included in the Complaint. Id.
Nevertheless, after analyzing the relevant Foman
factors listed above, the Court grants Plaintiff's Motion
for Leave to File an Amended Complaint. As further explained
below, although Plaintiff's Motion is untimely, Rouse is
not unduly prejudiced.
Plaintiff's Motion is untimely.
Motion is undeniably untimely. The Court's Scheduling
Order set a deadline of November 1, 2018 to amend pleadings.
(DE 15 at 1). Litigants who fail to observe a pleading
deadline must meet the higher threshold for modifying a
scheduling order according to FRCP 16(b)(4), which provides
that schedules may be modified with the judge's consent
only for good cause. See Shane v. Bunzel Distribution
USA, Inc., 275 Fed.Appx. 535, 536 (6th Cir. 2008);
Leary, 349 F.3d at 906-07. Good cause requires
moving litigants to show that “despite their diligence
they could not meet the original deadline.”
Leary, 349 F.3d at 907.
has not conclusively shown that she could not meet the
original November 1, 2018 deadline, though she does offer
some explanation for her delay in her reply. She states that
the initial Complaint was filed in good faith reliance on
incomplete information because of an approaching statute of
limitations deadline and because the KSP investigation of the
shooting of Casey was incomplete. (DE 29 at 2.) The KSP
investigation of Casey's death was not closed and made
available to Plaintiff until November 16, 2018, nearly two
and a half years after the shooting and two weeks after the
amendment deadline passed. (DE 29 at 2.) Plaintiff alleges
that the delay in her Motion was a result of KPS's custom
and practice of trying to “run out the clock” on
claims arising from its troopers' misconduct. (DE 29 ...