IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Deborah L. Graley, :

 

Plaintiff, :

 

v. : Case No. 2:13-cv-83 

 

Dolgen Midwest LLC, : JUDGE EDMUND A. SARGUS, JR.

 Magistrate Judge Kemp

Defendant. :

 

 OPINION AND ORDER

This matter is before the Court on defendant Dolgen Midwest

LLC’s motion for leave to amend its answer. Plaintiff Deborah

Graley has opposed the motion and the motion has been fully

briefed. For the following reasons the motion for leave to amend

will be denied.

I. Background

This case arises under the FMLA. In her complaint, Ms.

Graley claims that she was discharged from her job as an

assistant manager at a Dollar General store in Lancaster, Ohio,

on the basis of, or in retaliation for, taking FMLA leave for a

work-related injury, post-concussion syndrome. Through its

motion, Dolgen seeks to amend its answer to include a seventh

affirmative defense: that after-acquired evidence would have

resulted in Ms. Graley’s termination and that her damages must be

limited as a result. According to Dolgen, it learned through

discovery, specifically through answers to interrogatories and

Ms. Graley’s deposition, that Ms. Graley surreptitiously taperecorded a conversation with another Dolgen employee, District

Manager Rodney Bryant, conduct which violates DolGen’s policies

and is a terminable offense. 

In its motion filed January 3, 2014, Dolgen acknowledges

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that the deadline for amendment of the pleadings was October 30,

2013. Consequently, as explained below, the Court will begin its

analysis of the current motion under Fed.R.Civ.P. 16(b). 

II. Legal Standard

Although motions to amend are evaluated under the standards

in Fed. R. Civ. P. 15(a), which states that leave to amend shall

be given freely when justice so requires, that rule cannot be

read in isolation. Rather, Rules 15(a) and 16(b) must be read

together. Marcilis v. Twp. of Redford, 693 F.3d 589, 597 (6th

Cir. 2012); Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003). 

Consequently, the Court is permitted to examine the standard

factors governing amendments of the complaints under Rule 15(a)

only if it is satisfied that any prior date for the filing of a

motion for leave to amend either has been met or is properly

extended under the good cause provisions of Rule 16(b). 

Fed.R.Civ.P. 16(b) requires the Court, in each civil action

which is not exempt from that rule, to enter a scheduling order

that limits the time to, inter alia, file motions, amend the

pleadings, and complete discovery. Under Rule 16(b), a

scheduling order “may be modified only for good cause and with

the judge's consent.” Fed.R.Civ.P. 16(b)(4). Although the Court

has broad discretion to modify its own pretrial orders, it must

be remembered that “[a]dherence to reasonable deadlines is ...

critical to maintaining integrity in court proceedings,” Rouse v.

Farmers State Bank, 866 F.Supp. 1191, 1199 (N.D. Iowa 1994), and

that pretrial scheduling orders are “the essential mechanism for

cases becoming trial-ready in an efficient, just, and certain

manner.” Id. at 1198. A modification of the scheduling order by

leave of court is appropriate only when a relevant deadline

“cannot reasonably be met despite the diligence of the party

seeking the extension.” Leary, 349 F.3d at 906. That is, the

moving party's diligence in attempting to meet the requirements

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of the scheduling order is the primary measure of Rule 16(b)'s

“good cause” standard. Inge v. Rock Fin. Corp., 281 F.3d 613,

625 (6th Cir. 2002). Of course, “[c]arelessness is not

compatible with a finding of diligence and offers no reason for a

grant of relief.” Dilmer Oil Co. v. Federated Mut. Ins. Co., 986

F.Supp. 959, 980 (D.S.C. 1997). Further, although the primary

focus of the inquiry is upon the moving party’s diligence, the

presence or absence of prejudice to the other party or parties is

a factor to be considered. Andretti v. Borla Performance Indus.,

Inc., 426 F.3d 824, 830 (6th Cir. 2005); Inge, 281 F.3d at 625

However, the absence of prejudice to the opposing party is not

equivalent to a showing of good cause. Tschantz v. McCann, 160

F.R.D. 568, 571 (N.D. Ind. 1995). 

III. The Motion for Leave to Amend

In its motion, Dolgen affirmatively states that “[p]laintiff

responded to Defendant’s discovery on September 4, 2013 and

identified Plaintiff’s conduct in tape recording the

conversation. This was the first notice Defendant had of this

conduct.” See Defendant’s Memorandum in Support of Motion for

Leave to Amend Answer (Doc. 15), p. 3. By way of explanation for

its failure to move to amend prior to the deadline, Dolgen offers

the following time line after September 4, 2013. On September

11, 2013, Dolgen received the actual recordings of the

conversations. As Dolgen sees it, at this time discovery

responses were not complete because Ms. Graley had not obtained

copies of her cell phone records to substantiate the calls. On

November 1, 2013, Ms. Graley produced her cell phone records and

on November 12, 2013, Dolgen deposed her regarding her recording

activities. After Ms. Graley’s deposition, Dolgen confirmed with

its employment department that Ms. Graley’s conduct in recording

the conversations was a terminable offense. An unsuccessful

mediation was held on December 19, 2013, and immediately

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thereafter Dolgen notified Ms. Graley of its intention to amend

its answer. 

Dolgen also explains, by way of footnote, that the reason it

did not assert the affirmative defense of after-acquired evidence

in its answer to the amended complaint, which it filed April 1,

2013, was because it was unaware at that time of Ms. Graley’s

having recorded conversations. Dolgen then notes that at least

one court in this District has ordered the striking of

affirmative defenses plead without a factual basis. See Edizer

v. Muskingum University, 2012 WL 4499030 (S.D. Ohio Sept. 28,

2012). Further, it notes, apparently relying on Mills v. United

Producers, Inc., 2012 WL 4692341 (E.D. Mich. Oct. 3, 2012),

although only an incomplete citation is provided, that the afteracquired evidence defense often arises after litigation has

begun. Therefore, Dolgen offers, it chose not to assert the

defense until it had factual support. 

In addition to its suggestion of diligence, Dolgen makes two

other arguments in support of its motion. First, it stresses

that the proposed amendment is very “importan[t]” and would

“significant[ly] impact” Ms. Graley’s reinstatement request. 

Further, it addresses briefly the issue of prejudice to Ms.

Graley. Dolgen argues that, because no trial date has been set

and the pretrial conference is not scheduled until July, there is

sufficient time for Ms. Graley to conduct additional discovery. 

In response, Ms. Graley contends that Dolgen cannot show

good cause for modifying the scheduling order because it has not

been diligent in seeking leave to amend. According to Ms.

Graley, Dolgen was or should have been aware of the basis for the

proposed amendment well before the amendment deadline. Ms.

Graley agrees that Dolgen received actual copies of the

recordings on September 11, 2013, but asserts that it was

notified of the existence of the tapes through her initial

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disclosures served on August 13, 2013. Further, Ms. Graley

argues that information regarding calls she made to Mr. Bryant

was included in the first amended complaint filed March 8, 2013

(Doc. 4). As Ms. Graley sees it, no later than September 11,

2013, Dolgen was aware of the calls, their timing, their content,

and the fact that Mr. Bryant was unaware that he was being

recorded. Ms. Graley contends that Dolgen’s claimed need to

“substantiate” the calls before moving to amend is simply an

attempt to direct the Court’s attention away from its lack of

diligence. Moreover, she argues, even indulging Dolgen’s need

for substantiation, it could have moved to amend in early

November, 2013 after it received the cell phone records and took

her deposition. 

Additionally, Ms. Graley asserts that she will be prejudiced

if the motion to amend is granted. She contends that the issue

of prejudice is “not necessarily temporal.” That is, she

maintains that whether time remains to conduct sufficient

discovery is not the only factor in evaluating prejudice. She

argues that the proposed amendment will result in delay and

require additional expense that, given her financial situation,

she is in no position to incur. Ms. Graley disagrees with

Dolgen’s assumption that the proposed amendment could be

addressed by the review of a few additional documents and a

single deposition. Rather, she explains, she will need to

explore all recent instances of discipline for violation of the

policy as well investigations that did not lead to discipline. 

Further, she finds it likely that one witness will not have all

the necessary knowledge of the policy, which will necessitate

depositions of other employees. Finally, she will need to redepose “the primary decision makers in this case - Rodney Bryant

and Brenda Edgington -“ to determine their knowledge of and

experience with the policy. 

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In reply, Dolgen maintains that it did not “unduly delay”

raising its proposed after-acquired evidence defense. 

Significantly, Dolgen seems to retract the statement in its

motion that, as early as September 4, 2013, it was aware of Ms.

Graley’s conduct in recording conversations. Instead, Dolgen

appears to place the responsibility for its failure to move to

amend in a timely fashion squarely on Ms. Graley’s shoulders. As

Dolgen argues,

Knowing Plaintiff possessed tape recorded conversations

and knowing that she made the recordings are different

facts. In both her initial disclosures and in her

responses to interrogatories, Plaintiff carefully

avoided saying that she had personally recorded the

conversations. While it certainly appeared that

Plaintiff was responsible for recording the

conversations, it was not until her deposition that

Plaintiff admitted making the recordings and explained

how they were made. 

In support of this argument, Dolgen attaches, as Exhibits A and

B, copies of both Ms. Graley’s initial disclosures and her

answers to the first set of interrogatories. Exhibit A, the

initial disclosures states in relevant part, “B. ... Plaintiff is

in possession of the following documents or categories of

documents [which] may be used to support her claims: ... 5. 

Recorded telephone calls to Rodney Bryant.” Exhibit B, the

interrogatory responses, states in relevant part, 

INTERROGATORY NO. 15:

To your knowledge, has any tape recording or video

recording been made of any conversations or discussions

with any current or former employee, officer or agent

of Defendant relating to your claims? If so, please

identify the number of tapes, the date tapes were made

and the persons in possession thereof.

ANSWER: Plaintiff has digital recordings of a

conversation she had with District Manager Rodney

Bryant on November 20, 201[2]. She further has

recordings of a conversation with another employee of

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defendant on November 20, 2012, and recordings of

messages left on Rodney Bryant’s voicemail three times

on November 20, 2012, November 23, 2013 and December 1,

2012. These digital recordings are in the possession

of Ms. Graley’s attorney. 

Finally, at least on the issue of diligence, Dolgen reiterates

that it informed Ms. Graley’s counsel of the potential defense on

December 19, 2013.

Dolgen makes several other points in its reply. First, 

Dolgen argues that any prejudice to Ms. Graley is easily curable

by an extension of the discovery period. Dolgen also seems to

suggest that because discovery in this case was only four months

old when it advised Ms. Graley of its intention to raise the

defense, the proposed amendment is justified. It notes that the

“unsettled” state of the law relating to pleading standards for

affirmative defenses required its assurance of its factual basis

and makes any delay here reasonable. Further, Dolgen contends

that Ms. Graley cites to no authority to support her position

that additional cost is “a relevant consideration” to a prejudice

analysis here. Dolgen also dismisses Ms. Graley’s belief that

certain witnesses may need to be re-deposed because to its

knowledge these witnesses have no information relating to the

proposed after acquired defense. Finally, it takes Ms. Graley to

task for what it perceives to have been a “lengthy exposition on

the factual merits of the defense” in her response. 

IV. Analysis

As explained above, the issue before the Court is whether

Dolgen has demonstrated that, despite its diligence, it was

unable to move for leave to amend prior to the deadline of

October 30, 2013. If Dolgen has not met its burden on this

issue, it has failed to demonstrate good cause for extending the

deadline under Rule 16(b) and the Court will not consider the

motion for leave to amend under Rule 15(a). For the following

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reasons, the Court finds that Dolgen has failed to demonstrate

its diligence and therefore has not demonstrated good cause for

an extension of the amendment deadline. 

On the issue of diligence, significant facts do not appear

to be in dispute. That is, there is agreement between the

parties that Dolgen was aware, in early September, 2013,

approximately six weeks before the amendment deadline, that Ms.

Graley had taped conversations with Mr. Bryant. Despite its

attempt in its reply to characterize its understanding as simply

that she possessed tape recorded conversations not that she made

them, in its motion, Dolgen affirmatively states that it was

aware of Ms. Graley’s conduct on September 4, 2013. Although the

certificate of service on the interrogatory responses contains a

date of September 6, 2013, Ms. Graley does not dispute Dolgen’s

assertion. Further, Ms. Graley notes that information about the

tapes was contained in her initial disclosures served on August

13, 2013. Although Dolgen does not address this point, Ms.

Graley’s assertion is consistent with the copy of the disclosures

attached to Dolgen’s reply as Exhibit A. Putting these minor

details aside, however, there is no question that Dolgen was

aware of the recorded conversations no later than the first week

of September, 2013 and that Dolgen received the actual recordings

on September 11, 2013. 

What also appears clear based on the record is that the

amendment deadline came and went with no action addressed to the

issue of a proposed after-acquired evidence defense having been

taken by Dolgen. Dolgen would have the Court accept that this

lapse was the result of its need to ensure that it did not plead

an affirmative defense without any factual basis and run the risk

of having its defense stricken. Dolgen portrays itself as the

victim of both Ms. Graley’s alleged elusiveness in clarifying

whether she merely possessed or actually made the tapes and the

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unclear state of the law in this District regarding pleading

requirements for affirmative defenses. The Court is unpersuaded

by Dolgen’s attempt to shift blame. 

Assuming Dolgen’s professed conscientiousness, such

conscientiousness unfortunately did not extend to a regard for

Court imposed deadlines. Despite, by its own admission, having

been aware of the recordings, and the issues they potentially

presented, Dolgen did not seek an agreed upon extension of the

amendment date nor did it file a motion seeking any extension of

the date. A simple request for a brief extension to allow Dolgen

to investigate and confirm the underlying facts would have

addressed its concerns and acknowledged the importance of the

case management schedule. 

The Court finds Dolgen’s arguments about whether Ms. Graley

made the tapes particularly unpersuasive. In both her initial

disclosures and her interrogatory answers, she not only said that

she had recordings, but identified both parties to the

conversations. Dolgen knew that Mr. Bryant did not make the

recording; the only logical assumption is that, directly or

indirectly, Ms. Graley did. That should have been a “red flag”

concerning the possibility of an after-acquired evidence defense. 

Further, even if the Court were to accept Dolgen’s claim of

uncertainty as to whether Ms. Graley merely possessed or actually

made the tapes, Dolgen did not seek to clarify this point in a

timely manner, and it did not make a timely request to extend the

amendment deadline so it could find out who made these

recordings. Finally, there is no indication in the record that

Dolgen actively investigated the implications of the tapes with

its employment department during this time period, instead

waiting until sometime after Ms. Graley’s deposition on November

12, 2013. It is hard to characterize this behavior as diligent. 

 

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 The remaining series of events further calls into question

Dolgen’s insistence that its delay in seeking to amend was driven

solely by its concern for proper pleading. On November 1, 2013,

Ms. Graley’s cell phones records were produced and she was

deposed on November 12, 2013. Sometime “following the

deposition” Dolgen confirmed with its employment department that

Ms. Graley’s recording of the conversations was a terminable

offense. If confirmation of Ms. Graley’s conduct was the driving

concern, it seems reasonable to conclude that an amendment would

have been sought shortly following her deposition. While the

Court recognizes that such an amendment still would have been

untimely absent an extension, such timing at least would have

lent credibility to Dolgen’s current argument. 

Dolgen’s proposed amendment is a one-paragraph, threesentence, six-line seventh defense. As such, it cannot be

characterized as having been time-consuming to prepare. Yet,

Dolgen did not seek to amend in mid-November. Instead, on

December 19, 2013, the case was mediated. It was at this point

that Dolgen notified Ms. Graley of its intention to seek leave to

amend. Still, Dolgen did not move for leave to amend until

January 3, 2014. 

Under the circumstances described above, the Court believes

that Dolgen, in the exercise of any diligence, was able to pursue

the proposed amendment within the scheduled time frame. 

Moreover, were Dolgen concerned with its pleading obligations as

it contends, it could have, at a minimum, sought a short

extension of the deadline to allow for receipt of the cell phone

records and Ms. Graley’s deposition. Certainly, as Dolgen notes

in its motion, an after-acquired evidence defense frequently

comes to light after litigation has begun. When that is the

case, and that appears to be the case here, the Court is not

suggesting that such a defense was required to be plead

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initially. Rather, the Court expects that a party will use the

procedural vehicles designed to address such situations,

including timely motions for leave to amend or requests for

extension of time, consistent with the Court’s scheduling order. 

All of Dolgen’s other arguments are also unavailing. For

example, Dolgen’s argument that any prejudice to Ms. Graley can

easily be cured by an extension of the discovery deadline is not

a sufficient ground on which to allow the amendment. Likewise,

Dolgen’s attempts to minimize Ms. Graley’s assertions of the

prejudice that will result from increased costs associated with

the proposed amendment carry no weight. As previously stated,

the focus of the Court’s inquiry here is primarily on Dolgen’s

diligence in seeking leave to amend. Further, Dolgen’s notifying

Ms. Graley’s counsel on December 19 of its intention to pursue

the proposed defense does not serve to create a right to file an

untimely amendment. Similarly, Dolgen’s suggestion that it did

not “unduly delay” seeking leave to amend, is not persuasive

because the issue for consideration is not how quickly after the

deadline it sought to amend but whether it could have done so

before the deadline. Finally, Dolgen’s argument that the

proposed amendment is very important to the claims in this case

also is not a consideration in finding good cause under Rule

16(b). 

Based on the record before it, the Court cannot conclude

that Dolgen exercised due diligence in moving for leave to amend

after the deadline. Accordingly, it has not established the good

cause required for a modification of the case schedule under Rule

16(b) and the Court need not undertake any analysis under Rule

15(a). Consequently, the motion for leave to file an amended

answer will be denied.

V. Order

For the reasons stated above, the motion for leave to file

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an amended answer (Doc. 15) is DENIED. 

APPEAL PROCEDURE

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,

pt. IV(C)(3)(a). The motion must specifically designate the

order or part in question and the basis for any objection. 

Responses to objections are due fourteen days after objections

are filed and replies by the objecting party are due seven days

thereafter. The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be

clearly erroneous or contrary to law.

 This order is in full force and effect even if a motion for

reconsideration has been filed unless it is stayed by either the

Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

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