United States District Court, W.D. Pennsylvania
Barry Fischer Senior U.S. District Judge.
commercial dispute between Plaintiff Battle Born Munitions,
Inc., (“Battle Born”), and Defendant Dick's
Sporting Goods, Inc., (“Dick's”), returns to
the Court on competing motions involving Battle Born's
Second Amended Complaint filed on September 1, 2019 which
seeks to convert this lawsuit to a class action brought on
behalf of hundreds of unidentified vendors asserting breach
of contract claims against Dick's. (Docket No. 54). To
that end, Dick's moves to strike the pleading as it was
filed in violation of the Court's Case Management Order
while Battle Born seeks leave of court to file it nunc pro
tunc. (Docket Nos. 55; 60). The motions have been fully
briefed and are now ripe for disposition. (Docket Nos. 55;
56; 60-62; 65). After careful consideration of the
parties' positions, and for the following reasons, Battle
Born's motion to amend  is denied, its Second Amended
Complaint  is dismissed, and Dick's motion to strike
 is denied, as moot.
parties are well familiar with the facts of this matter in
light of the Court's prior rulings, the Court sets forth
only those facts necessary to resolve the instant motions.
(See Docket Nos. 35; 43). On May 3, 2019, this Court
issued a Memorandum Opinion granting a Rule 12(b)(6) motion
to dismiss filed by Dick's, and denying its corresponding
Rule 12(f) motion to strike, as moot. (Docket No. 35).
Specifically, the Court dismissed Battle Born's
fraudulent inducement, negligent misrepresentation and
Bilt-Rite claims and also partially dismissed its
breach of contract claims to the extent that it sought
consequential damages or lost profits, as such relief is
barred by the parties' contract. (Id.). The
Court held that its dismissal was with prejudice and denied
Battle Born leave to amend its claims and damages a second
time. (Id.). The Court subsequently denied Battle
Born's motion requesting leave to certify the Court's
Order and to permit an interlocutory appeal. (Docket No. 43).
Court held a case management conference on June 12, 2019 at
which time a case management order was entered establishing a
deadline for fact discovery of October 10, 2019 and a
deadline for the filing of motions to amend pleadings and/or
to add parties by September 1, 2019. (See Docket No.
49). The case was also referred to mediation as part of the
mandatory Alternative Dispute Resolution Program. (Docket No.
50). During the case management conference, the parties
briefly discussed the potential class action claim given a
reference to same in their Rule 26(f) Report, (see
Docket No. 44 at ¶ 9.d), and the Court provided them
with a citation to its prior decision in Graham v.
Progressive Direct Ins. Co., 271 F.R.D. 112 (W.D. Pa.
Sep. 15, 2015) denying leave to amend for the purpose of
adding a class action claim. The case was not resolved at the
June 26, 2019 ADR session and the parties proceeded to fact
discovery. In a joint status report filed on August 15, 2019,
the parties reported that some documents and written
discovery needed to be exchanged but that they
“believe[d] discovery will be completed by the October
10, 2019 cut-off date.” (Docket No. 53).
September 1, 2019, Battle Born filed its Second Amended
Complaint, without consent of Dick's or leave of court.
(Docket No. 54). In its proposed class action, Battle Born
seeks to bring breach of contract claims against Dick's
on behalf of three separate classes of similarly situated
vendors: vendors who involuntarily warehoused Dick's
branded inventory due to Dick's failure to take delivery,
as promised, within a commercially reasonable period; vendors
against whom Dick's took improper payment discounts; and
vendors against whom Dick's deducted chargebacks without
justification. (Docket Nos. 54; 61). Dick's responded by
moving to strike the pleading on September 6, 2019. (Docket
Nos. 55; 56). Four days later, Battle Born filed a class
action complaint against Dick's in the U.S. District
Court for the District of Nevada, asserting fraud and
statutory claims under Nevada law, (“Nevada
lawsuit”). See Battle Born Munitions, Inc. v.
Dick's Sporting Goods, Inc., Civ. A. No. 3:19-561,
Docket No. 1 (D. Nev. Sept. 10, 2019). Without mentioning the
Nevada lawsuit, Battle Born requested a seven-day extension
of time to file its response to Dick's motion to strike,
which the Court granted. (Docket Nos. 58; 59). On September
27, 2019, Battle Born filed a motion for leave to file its
Second Amended Complaint, brief in support and a brief in
opposition to the motion to strike. (Docket Nos. 60-61).
Dick's submitted its brief in opposition on October 7,
2019. (Docket No. 65). No further briefing has been
requested and the Court considers the motions to be
fully brief and ripe for disposition.
seeking leave to amend the pleadings after the deadline set
by the Court's Case Management Order must satisfy the
requirements of Rule 16(b)(4) of the Federal Rules of Civil
Procedure. See Walker v. Centocor Ortho Biotech,
Inc., 558 Fed.Appx. 216, 221-22 (3d Cir. 2014) (citing
Race Tires Am., Inc. v. Hoosier Racing Tire Corp.,
614 F.3d 57, 84 (3d Cir. 2010)). A Case Management Order
“may be modified only for good cause and with the
judge's consent.” Fed. R. Civ. P.
16(b)(4). Good cause requires a demonstration of due
diligence. Race Tires Am., Inc., 614 F.3d at 84.
“Many courts have recognized that ‘[w]here ...
the party knows or is in possession of the information that
forms the basis of the later motion to amend at the outset of
the litigation, the party is presumptively not
diligent.'” Graham, 271 F.R.D. at 119
(quoting Price v. Trans Union, LLC, 737 F.Supp.2d
276, 280 (E.D. Pa. 2010)).
once the moving party demonstrates good cause under Rule
16(b)(4) can the Court consider the motion under Rule
15's standard. Cf. Walker, 558 Fed.Appx. at
221-22 (citing Race Tires Am., Inc., 614 F.3d
at 84). “[A] party may amend its pleading only with the
opposing party's written consent or the court's
leave.” Fed.R.Civ.P. 15(a)(2). “The court should
freely give leave when justice so requires.”
Id. “[M]otions to amend pleadings should be
liberally granted.” Long v. Wilson, 393 F.3d
390, 400 (3d Cir. 2004) (citations omitted). “Leave to
amend must generally be granted unless equitable
considerations render it otherwise unjust.” Arthur
v. Maersk, Inc., 434 F.3d 196, 200 (3d Cir. 2006)
(citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.
227, 9 L.Ed.2d 222 (1962)). “Among the factors that may
justify denial of leave to amend are undue delay, bad faith,
and futility.” Id. (citing Lorenz v. CSX
Corp., 1 F.3d 1406, 1414 (3d Cir. 1993)). “It is
well-settled that prejudice to the non-moving party is the
touchstone for the denial of [leave to file] an
amendment.” Cornell & Co. v.
Occupational Safety and Health Review Com'n, 573
F.2d 820, 823 (3d Cir. 1978) (citations omitted). “As
to prejudice, the Court of Appeals has ‘considered
whether allowing an amendment would result in additional
discovery, cost, and preparation to defend against new facts
or new theories.” Graham, 271 F.R.D. at 123
(citing Cureton v. Nat'l Collegiate Athletic
Ass'n, 252 F.3d 267, 273 (3d Cir. 2001)).
“Given the liberal standard under Rule 15(a),
‘the burden is on the party opposing the amendment to
show prejudice, bad faith, undue delay, or
futility.'” Id. (citing Chancellor v.
Pottsgrove Sch. Dist., 501 F.Supp.2d 695, 700 (E.D. Pa.
2007)). The test under Rule 15(a) “is in the
disjunctive, meaning that if [Defendants] meet[ ] [their]
burden to prove any one of these elements, the [amendment]
should not be permitted.” Id.
parties dispute whether Battle Born has met its burden to
demonstrate that it should be granted leave to file its
Second Amended Complaint at this time. (Docket Nos. 55-56;
60-62; 65). Battle Born maintains that it has shown good
cause for the proposed amendments and that Dick's will
not be prejudiced by same because it was made aware of the
potential class action at the outset of this litigation.
(Docket Nos. 60-62). Dick's counters that it has been
prejudiced by Battle Born's delays given that fact
discovery was scheduled to end on October 10, 2019 and
further asserts that this case should proceed as to the
remaining breach of contract claim between these two entities
only. (Docket Nos. 55-56; 65). Having considered the
parties' positions, the Court holds that Battle Born has
failed to demonstrate that its Second Amended Complaint
should be permitted under the prevailing standards governing
motions under both Rule 15 and Rule 16. See Graham,
271 F.R.D. at 119, 121. Therefore, its untimely motion to
amend its complaint a second time to assert class action
claims against Dick's will be denied. The Court's
respect to Rule 16, Battle Born has not established good
cause for failing to adhere to the September 1, 2019 deadline
to file motions to amend pleadings or add new parties and has
not otherwise acted with diligence in pursuing its class
action claims. As this Court has held previously,
“[c]arelessness, or attorney error, which might
constitute ‘excusable neglect' under Rule 6(b), is
insufficient to constitute ‘good cause' under Rule
16(b).” Likewise, tactical errors and delays by
experienced attorneys, such as those made in this action, do