1

The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota, sitting by designation.

2

The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2956

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Don Davis; Audrey Davis, *

 *

Appellants, *

* Appeal from the United States 

v. * District Court for the Eastern

* District of Missouri.

City of St. John; Terry Milan, City *

Manager, personally; Jim Phillips, * [UNPUBLISHED]

Inspector; Robert Poteet, Inspector, *

*

Appellees. *

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Submitted: March 17, 2006

Filed: June 5, 2006

___________

Before ARNOLD and SMITH, Circuit Judges, and MAGNUSON,1

 District Judge.

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PER CURIAM.

When Don and Audrey Davis sought leave to file a second amended complaint

in their suit under 42 U.S.C. § 1983 against the City of St. John and several city

employees, the district court2

 denied it. The court then granted the defendants' motion
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for summary judgment. Mr. and Ms. Davis appeal, contending that the court erred in

denying their motion to amend and in striking Mr. Davis's affidavit filed in opposition

to summary judgment. We affirm.

We review the district court's denial of a motion to amend for an abuse of

discretion. United States ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 555 (8th

Cir. 2006). After this action was filed, the district court conferred with counsel for the

parties and entered a pretrial scheduling order. See Fed. R. Civ. P. 16. The Davises

moved to amend their complaint over eight months after the order's deadline for the

amendment of pleadings. We have held that a district court may properly require that

good cause be shown for leave to file an amended pleading that is substantially out of

time under the court's Rule 16 pretrial scheduling order. Rainy Lake One Stop, Inc.

v. Marigold Foods (In Re: Milk Prods. Antitrust Litig.), 195 F.3d 430, 437 (8th Cir.

1999), cert. denied, 529 U.S. 1038 (2000). The primary measure of whether good

cause exists is the moving party's diligence in trying to meet the order's requirements.

Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001). Here, the plaintiffs have

not shown such diligence. Almost all of the information that the Davises sought to

add to their complaint had been in their possession well before the suit began, and yet

they did not seek its inclusion until after the parties had completed discovery and the

defendants had moved for summary judgment. We conclude that the district court did

not abuse its discretion in denying the motion to amend.

The plaintiffs also contend that the district court erred by granting the

defendants' motion to strike Mr. Davis's affidavit, rather than considering it when

ruling on the summary judgment motion. We again review the court's ruling for an

abuse of discretion. Davis v. U.S. Bancorp, 383 F.3d 761, 765 (8th Cir. 2004). In

construing the first amended complaint, the district court concluded that the only issue

at summary judgment was whether the defendants had violated the plaintiffs' equalprotection rights by selectively enforcing the law. Mr. Davis said in his deposition

that he could not identify any other property owners whom the defendants had treated
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differently from him. In his affidavit, however, he asserted that he was aware of such

individuals, though he did not name them. The affidavit directly contradicted

Mr. Davis's earlier testimony, and the plaintiffs made no attempt to explain this

discrepancy by filing a response to the motion to strike. We therefore conclude that

the district court was within its discretion in striking Mr. Davis's affidavit. See Dotson

v. Delta Consol. Indus., 251 F.3d 780, 781 (8th Cir. 2001).

For the foregoing reasons, we affirm the judgment of the district court.

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