products liability statute and if it is an abuse of discretion unless there is evidence of undue delay bad faith repeated failure of the juror deficiencies by minutes previously allowed or und prejudice or futility none are present here the denial of the motion to amend was in fact an abuse of discretion under this court's decision in kozlov vs associated holzer wholesale grocers in two thousand and sixteen federal rule of civil procedure fifteen governors the amendment in this case and that's true until and unless there's a scheduling order that sets a deadline for the amendment as this cord certainly aware federal rule of civil procedure fifteen it requires that court should freely give leave when justice so requires and in fact rule fifteen goes on to say that amendments during or even after trial should be permitted when doing so will aid in presenting the merits of this case and that's what should have happened in this case mr x line was slated to go to trial in december of two thousand and eighteen she brought her complaint in the early part of two thousand and seventeen it was answered in july of two thousand and eighteen the same day or pardon me about three days before discovery closed in this case three and then brought a motion for judgment as a matter of law proximately ten days after the district court ruled that ohio substantive law would apply to miss x lines case this actually brought a motion for leave to amend her complaint really just a formality it wasn't a change in the nature of the claims it wasn't a change in the nature of the facts to let alleged it was merely because ohio law requires a plaintiff proceeding with certain types of claims to specifically cite and claim the statute at issue under the ohio products liability substantive law would in fact apply to miss excellence case that miss x line was on real notice that the ohio products liability law would have governed her case a but what's important for the court to consider today is that the evidence shows that there's no prejudice to the parties here the discovery had already closed ms x lionhead had disclosed her experts there were no did no extensions requested there were no delays sought that the case could have gone forward to trial in december of two thousand and eighteen as scheduled and in fact the court found that there was no undue prejudice three m it made it as much with respect to at least the failure to warn and design defect claims given that and given the policy favoring that cases be decided on their merit not on a procedural technicality it was important that that rule fifteen be followed here and leave freely granted such that i apply here your honor ms actually would concede she certainly would be on notice that it may apply because of the procedural tool in pretrial order number five the direct filing order she had indicated that that's where she would have filed her case but for the direct filing order and because of that ohio choice of law rules should apply but because ohio adopts a test that looks at the most the the state with the most significant relationship to the parties and the incident is actually in certainly believed that she had a good faith basis that a claim brought against minnesota mining and manufacturing for a case for a product that was invented conceived of marketed manufactured all from minnesota through the process of arguing that in fact minnesota substantive law should apply the district court ultimately determined it should be ohio law and within ten days of that decision ms act brought her motion for leave to amend your complaint to conform to the ohio products liability act it was merely a procedural motion and given this court's precedents and the federal rules of civil procedure including rule want that the rule should be considered and construed and administered to secure the dust speedy and inexpensive determination of every action proceeding and if then a favor that these cases should be decided on the merits because axle and amendment should have been granted  an error of fact in deciding that in fact and this is a dent m o six the court's order says neither the plaintiffs nor the defendants addressed the more significant relationship test and the order then goes to say the court is unaware of any basis for regarding minnesota is the state with the more significant relationship to the occurrence of the party's message and the reason for that my question is that an error of law firm yes your honor it is an error of law and three m agrees that that was an error at their response brief page ten at no three plaintiffs did in fact address the most significant relationship test in opposing the  j m a well and that appears at aptos sixty eight where we talk about what the ohio supreme court adopted adopted with respect to more significant relationship test at the district courts failure to apply that test requires that this be remanded for further proceedings on that particular question and i will reserve the remainder of my time if i if i may at this point very well thank you mr martin mr van our we'll hear from you again  the court your honors this is another individual case that made it to judgment for the ruling on on the experts and that will be mooted if the causation experts are excluded because it's a pittance but on the merits of this case the real problem that miss x line had is that she was in ohio resident who is injured in ohio but she didn't assert the only product liability claims that ohio allows until after the court point she gives two arguments for why she should escape the self made dilemma but neither of them is legitimate number one argument is that minnesota law  and not ohio law the the real problem with this we cited twenty eight cases in our brief we may have been a little excited your honour's this is the st appeal we cited twenty eight cases in our brief ohio's choice of law rules it's true that she cited the case there but the entire pages of her brief only applied minnesota rules so when the district court was saying it wasn't aware of any reason why minnesota would be the most significant relationship it's because miss x y never argued that the net and the district court correctly cited the controlling case from the ohio or from the house supreme court it's the morgan versus girl manufacturing case and entirely right to get a short analysis on that a longer analysis as we showed in our previous to the same place on this and this is not something your honour's that you know this is something that you can look at to it's not something that has to be done in the st instance by the district court on this but it was corrected in the sex line and on that we cited you know the main argument in minnesota by the way is that that's where the bear harder was manufactured but the supreme court case from ohio that adopted the nd restatement role they had that same scenario in morgan the state of manufacture was different from the state where the injury occurred and the complaint after it was dismissed to state ohio law and her basic argument on this is that she didn't delay and seek an amendment after the complaint was dismissed but that's the wrong starting point the starting point is when she was reasonably on notice and on that that she should have cited the right ohio law and that was in february two thousand and seventeen when she filed a complaint so she alleged claims under ohio law it's not as if she she was mystified at all how long it was going to fly and didn't know what she alleged claims under ohio law just the wrong wants the ones that were preempted and at that time controlling ohio authority and th circuit authorities said she couldn't allege those common claims because they're statutorily preempted the shoe's on notice in february two thousand and seventeen and then your court has also gone through some of the other events that gave her notice in june of two thousand and eighteen the court in garrus did a choice of a law analysis that said the place of injury is going to control plaintiffs counsel knew that a new is important because they need it lee tried to withdraw their lexicon waiver to change the choice of law rules they did that same day in  june on that in the court reject that in july so they had notice because they're trying to change it they had notice from the court rejected the change and then of course in july three i'm also sent counsel for miss x line a letter saying to them hey the ohio claims that you're asserting are preempted by statute if you agree to change now will stipulate to the change to do it in july there instead went to briefing we then move to dismiss move her judgment on the pleadings in august and then at that point that informally moved and then they only did it afterwards all of this is to say that this case it's directly within this court's line of authority saying that even when you're under rule fifteen if you wait until after you've lost that's undue delay you don't need to show prejudice you don't need to show anything because litigants aren't  theories one at a time go on lose on one and start over again it's a discourse decision and in ash versus anderson where this court noted you know even even apart from all the other former notice the  sixteen where it's due to rebel engines your honour's don't have to resolve whether it's rule fifteen or sixteen to affirm here the one reason you might consider addressing rule sixteen is just to establish in the circuit that scheduling orders in m t l actually do control need to be followed because what what happened here is the court and plaintiffs admit this the court said in m t l scheduling order that said the deadline to amend as  right it set that in two thousand and sixteen plaintiff is right that she didn't even file or complaint until after that that doesn't mean though that she was barred from amending it just means she had to go and get leave of the court and the court in another case that we it but the reason i say eat it the court may be interested in clarifying this is because especially in an empty all proceeding to work and there can be thousands of cases the parties have to comply with the scheduling orders for the case to be run it can't just keep going later on after the fact ignoring it saying there's no consequences to really reinforce that the court's ability to manage the m t l looking at this actually that the nastier scheduling order does in the later direct file cases you know they obsolete they have the ability to see if their claims when they st file their complaint and if something were to actually change they could say cleve of the courts and the court recognize that in this situation because of the necessity of scheduling where you can have cases coming in over a long time that the court recognized it would apply the rule sixteen good cause standard with that in mind that's what allowed this amendment this tromb this cases i should i should make one last point on this this court's cases say that a finding of undue delay is a factual finding that's reviewed only for clear error so that's the standard thank you your honor starting where counsel left off the un to delay that was found was was a clear error the scheduling order that counsel in that the court applied to miss x line that was entered in two thousand bring an amendment to her own individual pleading at no point did ms axon have an obligation to bring a motion to amend the master long form or short form complaints and from there i'd like to take the court a step back a minute that m t l orders are perhaps a little bit different here we have a procedural tool that facilitates review by the district court and also facilitates from an efficiency standpoint things from the plaintiff's perspective and the defense perspective the court adopt a long form complaint that outlines the basic facts that are being alleged in the basic claims and that that same m t l order set a deadline for rule twelve motion if three am were to bring a rule twelve motion with respect to the master long form complaint it was governed by that master scheduling order and they needed to bring that motion by july of two thousand and sixteen there was no will twelve motion brought and in fact miss x line and other complete other place to fly courier were reasonable then in relying upon the district court's adoption of both the master long form and the short form complaint and the fact that three m had not at any point brought a rule twelve motion with respect to that master long form complaint is actually filed for complaint at the beginning of two thousand and seventeen and by the way one of the things that's inefficient the as you can imagine from a district court perspective there were over five thousand cases pending here and if there were not a master long form and short one complaint the district court and counsel for three m would likely be facing whether r twelve motions or j m a well motions with respect to five thousand different people that had different allegations with at least fifty different states laws applied so these are really procedural kind of housekeeping tools that the district court uses an m d l but that does not the complaints need to be made that never happened with respect to ms x line and then counsel points to trombley case as evidence of what what should happen or what could happen if the rules were followed correctly mr trombley and miss x line were subject to the exact same scheduling orders they had the master scheduling master long form a schedule in order that was in place in two thousand and sixteen mr trump and by the way had her case filed prior to mazatlan and they both proceeded they were both from ohio they  both had two other scheduling clickers that applied to their individual cases along with i think six other bellwether cases the st sketching order was april of two thousand and eighteen and the nd was july th of two thousand and eighteen at no point was there a schedule a deadline by which these planes just were required to submit or bring motions to the court with respect to amend their pleadings miss trombley scase is exactly the same as ms x lines the only difference is she actually waited longer she waited longer to bring her motion to amend and yet it was granted and the district court recognizes the potential problem there at footnote three footnote one on page three of the denham at twenty six because one of the things we discussed in that hearing was the fact that there was going to be a logistical nightmare for the district court and for the parties involved if if we were to take the garrus order and actually in order to just set deadlines for every single one of the m d o plaintiffs to bring motions to amend and so what the court says there at that footnote says as discussed at the motion hearing this fact may create a serious problem going forward for cases selected for the bellwether pool the parties would do well to find a mutually agreeable solution to this issue this was really an issue of paperwork and one that confronts and deal courts in a slightly different way than it would a district court considering just a single case this considered five thousand dollars different cases but when applying the rule fifteen and rule one to the fact at issue here miss x lines motion for leave to amend should have been freely granted the district court properly found that there was no bad faith there was no unfair prejudice that any failure to comply with local rules was certainly  not subject to the court's other analysis or decision making here and to the extent that the court found undue delay that was a factual mistake by applying the two thousand and sixteen schedule in order which governs expressly by the terms of the sketching order only the master long on that and d l scheduling order yes to your honor and miss axtell and moved promptly i mean she brought her motion for leave to amend within ten days of the substantive order ohio law coming down things moved very quickly between the end of july on july rd when when miss x lines complaint was st answered when the j m j m a well was brought just a few days later and when the court heard argument and made a decision on the merits on september th this whole thing takes place over the course of about six weeks but again reminding the court is the court's well aware discovery was closed at this point there was there was no additional information that would have required with by way of discovery and they stipulate to that at the response of page twenty eight there was no unfair prejudice to three m to allow amendments at least on the design defect and failure to warn claims and given those concessions and given rule one and rule fifteen miss x line should have been permitted leave to amen complaint and proceeded with trial in the late part of two thousand and eighteen and for that reason we would request that this court remain with instructions that the amendment be granted  us the case will be submitted and decided in due course