The Tenth Circuit Court of Appeals held that the district court could not err in refusing to permit plaintiffs to amend their complaint after the deadline in a scheduling order. In Birch v. Polaris Industries, Inc., ____ F.3d. _____ (10th Cir. 2015), 215 WL 9310564 the estate of an off-the-road vehicle rider who was killed when his vehicle flipped over and the ROPS failed resulting in his death. During the course of the litigation it was discovered that the decedent had hired one, Damron, an employee of the local Polaris dealer and a certified service-repair mechanic to repair his vehicle “off the books.” Among other things, the original ROPS had to be replaced and Damron obtained a replacement through Craig”?s List. While it appeared to be new and unused it had been manufactured for an earlier Polaris model and had been discontinued by the manufacturer. The opinion describes the activities in this regard and on October 3, 2014 Polaris moved for summary judgment because plaintiffs could not show an injury-causing defect existed when its vehicle as sold by Polaris. Defendant pointed out that Damron”?s modification of the 2011 vehicle had introduced into the decedents”? vehicle a defect that had not previously existed and therefore plaintiffs”? claims were deficient as a matter of law.
On October 31, 2014 plaintiffs filed both a response to the summary judgment motion and a motion to amend the complaint in which they sought to redefine the part at issue as the original that decedent had bought from Polaris (the sole product in the original complaint) and the ROPS also manufactured by Polaris which Damron a Polaris-certified mechanic had installed. In addition, defendants added a claim that inadequate training and evaluation were provided to the Polaris certified service – repair mechanics which resulted, among other things unsafe safety methods and insufficient knowledge of after-market products compatibility.
Pursuant to the scheduling order the deadline for amending pleadings had been December 16, 2013, and, as previously noted plaintiffs did not file their motion to amend until October 31, 2014. The court of appeals noted that plaintiffs offered no explanation in their appeal briefs for why they waited four months to file their motion to amend after the record showed they first had knowledge of the ROPS modification, Damron”?s subsequent deposition testimony, a notice that Polaris filed of non-party fault and a June 26, 2014 disassembly of the unit, all of which put plaintiffs on notice they might need to amend the complaint. The court noted that the district court”?s March 31, 2015 hearing plaintiffs argued that they delayed four months because they needed time to review the record carefully, but they had neglected to make this argument to the magistrate judge who originally ruled and it was therefore waived. The Court of Appeals held that the plaintiffs failed to establish good cause for seeking to amend the scheduling order and affirmed the trial courts entry of summary judgment.