Milbank Insurance Company v. Gree USA, Inc. et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MILBANK INSURANCE COMPANY, AS
SUBROGEE OF ROBERT AND BRENDA
LYKE;
4:2I-CV-04180-RAL
Plaintiff, ORDER ALLOWING PLAINTIFF TO FILE
AMENDED COMPLAINT
vs.
GREE USA, INC., MJC AMERICA, LTD.,
GREE ELECTRIC APPLIANCES, INC. OF
ZHUHAI, HONG KONG GREE ELECTRIC
APPLIANCE SALES,LTD.,
Defendants.
The Scheduling Order in this case made March 16, 2022, the deadline for amending the
pleadings. Doc. 16. On June 28, 2022, Plaintiff and Defendants filed a stipulation agreeing that
Plaintiff could file an amended complaint. Doc. 19. Rule 15(a)(2) of the Federal Rules of Civil
Procedure would ordinarily allow a plaintiff having written consent from the defendant to file an
amended complaint without leave of court. Fed. R. Civ. P. 15(a)(2). Because the Scheduling
Order's deadline for amending the pleadings has already expired, however, the "good cause"
standard of Rule 16(b)(4) governs Plaintiffs attempt to amend the complaint. S^ Nelson v. Infl
Paner Co., No. 18-cv-131 (SRN/LIB), 2019 WL 10960398, at *1-2 (D. Minn. Jan. 22, 2019)
(applying Rule 16(b)(4)'s good cause standard to motion to amend answer after the scheduling
order deadline even though the plaintiff consented to the defendant's motion to amend its answer);
I Steven S. Gensler 8c Lumen N. Mulligan, Federal Rules of Civil Procedure. Rules and
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r.nmmp.ntarv Rule 15 (Feb. 2022 Update)("If the deadline in the scheduling order for amending
the pleadings has passed ... the Rule 15(a) provision for consent amendments may be limited by
the Rule 16(b)(4) requirement that the scheduling order be modified only by leave of court upon a
showing of good cause."); see also Trim Fit, LLC v. Dickev, 607 F.3d 528, 531 (8th Cir. 2010)
(explaining that there is no "absolute right to amend" after the scheduling order s deadline and that
when "leave to amend is sought after the scheduling order's deadline, a judge may require good
cause under Rule 16(b)(4)").
Based on the proposed amended complaint, and considering Defendants' consent. Plaintiff
has shown good cause for its belated attempt to amend its complaint. According to the proposed
amended complaint. Plaintiff and Defendants entered into a settlement agreement on March 3,
2022, requiring Defendants to pay Plaintiff $125,000. Doc. 19-1. The agreement required
Defendants to pay this amount by June 1, 2022, but Defendants have not done so. Doc. 19-1.
Plaintiff now seeks to sue Defendants for breach of contract rather than the claim for product
liability alleged in the initial complaint.1 Doc. 19-1. Plaintiff has been diligent in attempting to
resolve this case and its failure to comply with the Scheduling Order's deadline was beyond its
control. For good cause, it is
ORDERED that Plaintiff file its amended complaint in CM/ECF as a free-standing
document rather than as an attachment. It is further
ORDERED that Defendants shall have 14 days after Plaintiff files the amended complaint
to answer.
^Plaintiffs "amended complaint" actually has the flavor of a supplemental pleading as it concerns
matters that occurred after the filing ofthe initial complaint. Fed. R. Civ. P. 15(d); 6A Mary
Kay Kane,Federal Practice & Procedure § 1504(3d ed.). The distinction between a supplemental
complaint and an amended complaint does not matter here, though, as this Court would allow
Plaintiff to file its new complaint under both Rule 16(b)(4) and Rule 15(d).
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DATED this Iftth day of July, 2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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