(Gridview_imagefull / Florida Department of Agriculture & Consumer Services)
The plaintiff in an insurance bad-faith case sought "to add an additional breach of fiduciary duty theory under her existing Count I, a common law claim for intentional infliction of emotional distress (“IIED”), and a prayer for punitive damages." Bertels v. Farm Bureau Prop. & Cas. Ins. Co., No. 20-2298-JWB-ADM, 2021 WL 533827, at *1 (D. Kan. February 12, 2021) (USMJ).
Writing that she proposed her amendment in "good faith," the plaintiff based her proposed amendment on deposition testimony. The Case Management Scheduling Order set a deadline for amendments on October 9 but set a discovery cutoff months later on February 5, 2021. Federal Rule of Civil Procedure 11 provides a basis for amendment if there is evidence to support it or it is likely that the evidence will support amendment after a reasonable opportunity in the future. But as the Magistrate Judge pointed out in this case, the depositions were already taken two months earlier, in November. Bertels, 2021 WL 533827, at *4.
Another crucial date was set by the plaintiff herself: She did not file a motion for leave to amend based on the November depositions until January 29, 2021. This did not meet the Court's definition of "good cause" for seeking amendment at this late date under Federal Rule of Civil Procedure 16. Bertels, 2021 WL 533827, at *1.
Further, said the Court, the plaintiff "has not shown diligence by waiting two months to move to amend after she learned of the information she says gives rise to the amendments." Bertels, 2021 WL 533827, at *4.
Moreover, it is noteworthy that the plaintiff already pleaded claims in this case of breach of fiduciary duty, along with her claims of bad faith, negligence, and breach of contract. Bertels, 2021 WL 533827, at *2. Her existing alleged claims were more than noteworthy; their existence was determinative of the outcome along with the passage of deadlines in the eyes of the Court in this particular case.
The Court ruled that the plaintiff sought to allege some new legal theories based on the same facts. The facts were already known. That is why the plaintiff alleged her claims in the first place. The Magistrate Judge accordingly denied the plaintiff's January 29 motion for leave to amend her insurer bad-faith complaint in this case.
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