Thomas v. Conagra Foods

• Decision Date: 21 April 2022
• Docket Number: 20-CV-6239-EAW-MJP
• Parties: CAROL THOMAS, Plaintiff, v. CONAGRA FOODS, et al. Defendants. No
• Court: U.S. District Court — Western District of New York

CAROL THOMAS, Plaintiff, v. CONAGRA FOODS, et al. Defendants.

No

No. 20-CV-6239-EAW-MJP

United States District Court, W.D. New York

April 21, 2022

REPORT AND RECOMMENDATION

MARK W. PEDERSEN UNITED STATES MAGISTRATE JUDGE

This matter is before the undersigned for a Report and Recommendation (“R. & R.”).^[1] At issue is Plaintiff Carol Thomas' (“Plaintiff') motion to amend the complaint. (Notice of Mot, Dec. 17, 2021, ECF No 48.) Defendants oppose Plaintiffs motion, (Defs.' Joint Opp'n, Jan. 14, 2022, ECF No. 51 (“Defs.' Opp'n”) after which Plaintiff filed her reply. (Feb. 10, 2022, ECF No. 54.) For the reasons discussed, the undersigned reports and recommends that the Hon. Elizabeth A Wolford deny Plaintiffs motion to amend.

PROCEDURAL AND FACTUAL HISTORY

Plaintiff brings this products liability action against defendants ConAgra Foods, Inc, ConAgra Brands, Inc, DS Containers, Inc and Full-Fill Industries, LLC (collectively, the “Defendants”) related to injuries she sustained when a can of Member's Mark cooking spray vented its contents, resulting in an explosion and flash fire. (Compl ¶¶ 1-2, 13-20, Apr. 14, 2020, ECF No. 1.) Defendant DS Containers, Inc., answered the complaint on May 12, 2020. (ECF No. 7.) On June 12, 2020, the other defendants moved to dismiss the complaint. (ECF No. 19.), which the Hon. Elizabeth A. Wolford granted in part and denied in part. (Decision and Order at 12, Mar. 29, 2021, ECF No. 31 (“D. & O.”).)

In conversations before the Rule 16 conference, Plaintiff raised the possibility that she would need to amend her complaint. First, Plaintiff admitted it was possible that the can was labeled “Daily Chef' rather than “Members Mark”:

Plaintiffs counsel, by way of Theresa Walsh and Frank Cesarone, told Defense counsel in a conference call on April 22, 2021 [,] that the can was not preserved, and that the product may have been labeled “Daily Chef' rather than “Members [sic] Mark.”

(Reply at 3, ECF No. 54.) Later, Plaintiff alluded directly to the potential motion to amend in an email dated May 4, 2021:

In the event this is Daily Chef vs. Members Mark, we will seek leave to amend the complaint. I will hold off on that until Defendants have had an opportunity to investigate further, but I presume there would be no objection to amending the complaint.

(Defs.' Opp'n Ex. 4 at 2, ECF No. 51-5.) Finally, Plaintiff did not object to the recommended deadline for motions to amend contained in the joint discovery plan. (Disc. Plan at 2, May 6, 2021, ECF No. 40.)

The undersigned adopted the recommended deadline for motions to amend of June 11, 2021, during a Rule 16 conference on May 12, 2021. (Scheduling Order, ECF No. 41.) The deadline passed without Plaintiff filing a motion to amend.

Defendant deposed Plaintiff on November 10, 2021. (Defs.' Opp'n Ex. 3 at 2, ECF No. 51-4 (attaching portions of the deposition).) The relevant portions of that deposition were transcribed as follows:

Q: Do you remember any of the words written on [the Subject Can]?

A: Cooking spray.

Q: Do you remember that it specifically said “cooking spray”?

A: Yes.

Q: Any other words?

A: “Daily Chef.”

Q: Do you remember that it said “Daily Chef' on it?

A: I remember looking at it and seeing that.

(Pl. Dep. 37:25-38:11.)

Q: Do you recall telling people what brand of cooking spray it was?

A: No.

Q: Did you later come to believe it was a different brand then [sic]

Daily Chef?

A: No.

Q: You always thought it was Daily Chef cooking spray?

A: Yes.

Q: Did you read the Complaint before it was filed?

A: I don't know, I must have.

Q: The Complaint says Member's Mark, do you know what Member's

Mark is?

A: No.

Q: If you would have read something that said it was Member's Mark cooking spray, would you have corrected, you know, corrected the person and said no, it was Daily Chef?

A: Yes.

Q: And you don't recall doing that?

A: No.

(Pl. Dep. 52:13-53:9.) After Plaintiffs deposition, Plaintiff filed her motion to amend on December 17, 2021. (Notice of Mot., ECF No. 48.)

Defendants filed joint opposition to Plaintiffs motion to amend on January 14, 2022. (Defs.' Opp'n, ECF No. 51.)^[2] Defendants argue that Plaintiff fails to show good cause under Fed.R.Civ.P. 16(b) for her failure to amend the complaint within the time specified by the undersigned's scheduling order. (Id. at 5-9.) In her reply dated February 10, 2022, Plaintiff counters Defendants' arguments by asserting that the District Court nonetheless has discretion to grant leave to amend, noting that Defendants will not be unfairly prejudiced. (Reply at 1-5, ECF No. 54.) On February 11, 2022, the undersigned granted the parties' joint motion to stay discovery deadlines until the motion to amend is decided. (Text Order, ECF No. 56.)

Regarding the decision to issue an R. & R. instead of a decision and order, the undersigned notes that while the pending motion to amend would fall within Judge Wolford's referral (Text Order, Apr. 12, 2021, ECF No. 36),^[3] the undersigned must issue a report and recommendation where a decision will be dispositive, or functionally dispositive of the case. See United States v. Pappas, 546 Fed.Appx. 63, 64 (2d Cir. 2013) (“In the absence of consent, the authority of a magistrate judge is limited to actions permitted under § 636(b)(1)(A), (b)(1)(B), and (b)(3).”); 28 U.S.C. § 636(b)(1)(B) (district judges may only refer dispositive issues to magistrate judges for their report and recommendation). Denying Plaintiffs motion to amend is functionally dispositive. As Plaintiff acknowledges in her reply, denying the motion to amend would amount to “denying Plaintiff an opportunity to recover.” (Reply at 5, ECF No. 54.)

STANDARD OF LAW

Ordinarily, Plaintiffs motion to amend would be governed by Fed.R.Civ.P. 15(a)(2), under which permission to amend “should be freely granted.” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). Under Fed.R.Civ.P. 15(a)(2), the Court retains discretion to deny the motion “in instances of futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, or undue prejudice to the non-moving party.” Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). However, where, as here, a plaintiff moves to amend the complaint after the deadline set by the scheduling order, Fed.R.Civ.P. 15's “lenient standard” must be “balanced against” Fed.R.Civ.P. 16(b)(4)'s requirement that “a scheduling order shall not be modified except upon a showing of good cause.” Holmes v. Grubman, 568 F.3d 329, 334-35 (2d Cir. 2009) (internal quotation omitted). The Second Circuit has concluded that Fed.R.Civ.P. 16(b)'s ‘“good cause' standard, rather than the more liberal standard of [Fed. R. Civ. P.] 15(a) governs a motion to amend filed after the deadline a district court has set for amending the pleadings.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000), overruled on other grounds by Natofsky v. City of New York, 921 F.3d 337 (2d Cir. 2019). Thus, “despite the lenient standard of Rule 15(a), a district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause.” Id.

In the “good cause” analysis, “the primary consideration is whether the moving party can demonstrate diligence,” but the Court may also consider “other relevant factors including . . . whether allowing the amendment of the pleading at this stage of the litigation would prejudice defendants.” Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 244 (2d Cir. 2007). These other factors do not excuse the moving party from demonstrating diligence, however. Engles v. Jones, 405 F. Supp. 3d 397, 407 (W.D.N.Y. 2019) (quoting Perfect Pearl Co. v. Majestic Pearl & Stone, Inc., 889 F.Supp.2d 453, 457 (S.D.N.Y. 2012)) (“[T]o show good cause, a movant must demonstrate that it has been diligent.”).

DISCUSSION

As noted, “the primary consideration in assessing whether good cause exists under Rule 16(b) is whether the party seeking to amend can demonstrate diligence.” CRA Holdings U.S., Inc. & Subsidiaries v. United States, No. 1:15-CV-00239 EAW, 2019 WL 4544390, at *4 (W.D.N.Y. Sept 19, 2019) (citations omitted). “To satisfy the good cause standard the [moving] party must show that, despite its having exercised diligence, the applicable deadline could not have been reasonably met.” Id. (alteration in original) (quotation omitted in original) (quoting Enzymotec Ltd. v. NBTY, Inc., 154: F.Supp.2d 527, 536 (E.D.N.Y. 2010). A party cannot demonstrate diligence where “the proposed amendment rests on information the party knew, or should have known, in advance of the deadline.” Id. (citation omitted). Likewise, a party cannot demonstrate diligence where failure to amend before the deadline is due to counsel's oversight. See Engles, 405 F.Supp.3d at 407 (quoting Lamothe v. Town of Oyster Bay, No. 08-CV-2078 ADS ART, 2011 WL 4974804, at *7 (E.D.N.Y. Oct. 19, 2011)) (“[A]ttorney neglect, carelessness, or oversight is not a sufficient basis for a court to amend a scheduling order.”).

Plaintiff Cannot Demonstrate Diligence

Plaintiff cannot meet her “burden of demonstrating good cause,” Ritchie Risk-Linked Strategies Trading (Ireland) Ltd. v. Coventry First LLC, 282 F.R.D. 76, 79 (S.D.N.Y. 2012), because the new information to be added to the complaint was within Plaintiffs knowledge before the deadline to amend. Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 304 F.R.D. 170, 174-75 (S.D.N.Y. 2014) (citation omitted) (“A party is not considered to have acted diligently where the proposed amendment is based on...