Shank v. Carleton College

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                

Elizabeth M. Shank,                 File No. 16-cv-01154 (ECT/HB)        

          Plaintiff,                                                     
                                    MEMORANDUM OPINION                   
v.                                        AND ORDER                      

Carleton College,                                                        

          Defendant.                                                     


    On October 15, 2018, Magistrate Judge Hildy Bowbeer issued an order addressing 
several issues, including granting the motion of Plaintiff Elizabeth M. Shank (“Shank”) to 
amend her complaint to allege punitive damages in connection with her state-law claims.  
Defendant Carleton College (“Carleton”) objects only to the part of Judge Bowbeer’s order 
finding that “good cause” existed under Fed. R. Civ. P. 16 to amend the scheduling order 
to permit consideration of Shank’s late motion to amend.  Having carefully reviewed the 
underlying order, the parties’ arguments, and the applicable law, the Court will affirm 
Judge Bowbeer’s finding of good cause and, as a result, her order granting Shank’s motion 
to amend.                                                                 
                               I                                         
    The background facts are set forth more fully in court orders dated January 9, 2017 
[ECF No. 41] and October 15, 2018 [ECF No. 221], and will not be recited at length here.  
In short, Shank brought this action challenging Carleton’s alleged mishandling of two 
on-campus rapes.  See First Am. Compl. ¶ 1 [ECF No. 6].  Shank originally sought punitive 
damages only as to her federal claim under Title IX, expressly noting in her complaint that 
“[t]he law of this District precludes the initial pleading of a claim of punitive damages 
as to state law claims.”1  Id. ¶ n, 49 n.3.  Approximately two years later, and after the close 

of discovery, she filed a motion to amend her complaint to add a claim for punitive damages 
as to her state-law claims.  See Mot. to Amend [ECF No. 64]; Proposed Second Am. 
Compl. ¶¶ 263–65, n [ECF No. 72-3].                                       
    Shank’s motion to amend was complicated by two issues: (1) the timeliness of her 
motion, in view of the scheduling order, and (2) a dispute about whether Fed. R. Civ. P. 15 

or 

 provided the applicable legal standard for considering the motion.  
Judge Bowbeer found that Shank’s motion was untimely.  ECF No. 221 (“Order”) at 13.  
Although the scheduling order from the initial pretrial conference had left a blank for 
“[m]otions seeking to add claim for punitive damages,” ECF No. 45 at 3, Judge Bowbeer 
concluded that the general deadline of August 1, 2017, for “[m]otions seeking to amend 

pleadings,” 

 was controlling, making Shank’s motion over a year late, Order at 12–13.  
And although the law in the District had long been that Fed. R. Civ. P. 15(a)(2)’s “freely 
give leave” standard yields to 

.191’s “prima facie evidence” standard, 
Judge Bowbeer joined a recent intra-District trend and concluded the opposite.  See Order 
at 8–10.  But neither of these rulings is at issue in this appeal.  See Def.’s Obj. at 1–2 [ECF 

No. 229].                                                                 

1    Shank also expressly acknowledged that “there is no controlling authority in this 
District bearing on the availability of punitive damages under Title IX,” and that she was 
making  “an  argument  for  extending,  modifying,  or  reversing  existing  law  or  for 
establishing new law.”  First Am. Compl. at 49 n.3 [ECF No. 6].           
    The sole issue that Carleton appeals is Judge Bowbeer’s threshold determination 
that “good cause” existed under Rule 16 to consider Shank’s belated motion to amend 
under Rule 15.  See 

  Having found good cause, Judge Bowbeer then entertained the 

merits of Shank’s motion to amend.  She concluded that the court was “not working with 
a tabula rasa” because Judge Schiltz had already concluded the complaint stated a claim 
for “deliberate indifference” under Title IX and “intentional or reckless” conduct for 
intentional infliction of emotional distress.  Order at 15–16.  The court held that these 
standards “closely approximate[] the punitive damages standard under Minnesota law” and 

that Shank had therefore “allege[d] a plausible claim ‘that the acts of the defendant 
show[ed] deliberate disregard for the rights or safety of others.’”  

 at 16–18 (second 
alternation in original) (quoting 

).  Accordingly, Judge Bowbeer 
granted Shank’s motion to amend to add a claim for punitive damages as to her state-law 
claims.  

.                                                       

                               II                                        
                               A                                         
    Motions to amend for punitive damages are nondispositive motions, despite their 
potentially  dispositive  implications.    See  

(b)(1)(A);  Local  Rule 
7.1(b)(4)(A)(i)  (providing  that  “[n]ondispositive  motions  covered  by  this  subsection 

include . . . motions to amend pleadings”); Daley v. Marriott Int’l, Inc., 

, 893 
n.9  (8th  Cir.  2005)  (referring  to  a  motion  for  leave  to  amend  the  complaint  as  a 
“nondispositive  pretrial  motion”);  Olson  v.  Brott,  No.  09-cv-790  (JNE/JJG), 

, at *3 (D. Minn. Dec. 11, 2009) (rejecting plaintiff’s argument that “the 
denial of his motion to amend . . . constituted a judgment on the merits” and was therefore 
dispositive, such that “the magistrate judge lacked jurisdiction to issue an order subject to 
a ‘clearly erroneous’ or ‘contrary to law’ standard of review” (citations omitted)).  As a 

result, Judge Bowbeer’s decision on the motion to amend will be reversed only if “clearly 
erroneous or contrary to law.”  

(b)(1)(A); accord Local Rule 72.2(b)(3).   
    This standard of review “is extremely deferential.”  Magee v. Trs. of the Hamline 
Univ., 

 (D. Minn. 2013).  “A ruling is clearly erroneous when 
the reviewing court is left with the definite and firm conviction that a mistake has been 

committed.  A decision is contrary to law when a court fails to apply or misapplies relevant 
statutes, case law or rules of procedure.”  Smith v. Bradley Pizza, Inc., 

 (D. Minn. 2018) (citations and internal quotation marks omitted).  “If the 
magistrate judge’s account of the evidence is plausible in light of the record viewed in its 
entirety, the reviewing court may not reverse it even though had it been sitting as the trier 

of fact, it would have weighed the evidence differently.”  Meyer v. Haeg, No. 15-cv-2564 
(SRN/HB), 

, at *3 (D. Minn. Jan. 4, 2016) (reviewing decision to grant 
leave to amend).                                                          
                               B                                         
    Shank’s motion to amend implicates two federal rules and two state statutes: Fed. R. 

Civ. P. 15 and 16, and 

 and 549.20.  But only Rule 16 and its 
good-cause standard are directly at issue on appeal.  A brief discussion of the interaction 
between Rules 15 and 16 is useful.                                        
    Rule  15  requires  the  court  to  “freely  give  leave”  to  amend  “when  justice  so 
requires.”  Fed. R. Civ. P. 15(a)(2).  Even though this is a liberal standard, parties do not 
have an absolute right to amend for any claim at any time.  See Sherman v. Winco 

Fireworks, Inc., 

 (8th Cir. 2008).  A motion to amend may be denied for 
“compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to 
cure deficiencies by amendments previously allowed, undue prejudice to the non-moving 
party, or futility of the amendment.”  

 (citation and internal quotation marks omitted).   
    But when a Rule 15 motion is brought after the court-ordered deadline, the court 

must conduct a “good cause” analysis under Rule 16 to determine if amendment of the 
scheduling order is appropriate.2  See Sherman, 

; see also TCS Holdings, 
Inc. v. OnVoy, Inc., No. 07-cv-1200 (DWF/AJB), 

, at *2 (describing 
how the movant must show good cause to “justify modification of the scheduling order, 
thereby re-establishing the timeliness of the amendment motion itself”).  This is a more 

stringent standard than in Rule 15.  See Bradford v. DANA Corp., 

 (8th 
Cir. 2001) (calling the good-cause standard “less forgiving”).  “The primary measure of 

2    Rule 16 does not distinguish between “good cause” and “excusable neglect” in the 
way Rule 6 does.  Compare Fed. R. Civ. P. 16(b)(4), with Fed. R. Civ. P. 6(b)(1).  Arguably 
the excusable-neglect standard should apply when a party seeks to modify the scheduling 
order after the deadline has passed.  See Fed. R. Civ. P. 6(b)(1)(B) (requiring a showing of 
good cause and excusable neglect to extend an expired deadline); Portz v. St. Cloud State 
Univ., No. 16-cv-1115 (JRT/LIB), 

, at *3 n.1 (D. Minn. Aug. 4, 2017) 
(noting that “a somewhat different analysis may be warranted for deadlines that have 
already run”).  But the plain text of Rule 16 does not make this distinction.  And in 
Sherman, the Eighth Circuit was explicit that the “good-cause standard governs when a 
party seeks leave to amend . . . outside of the time period established by a scheduling 
order.”  

.  Accordingly, the Court considers this appeal in light of the 
good-cause standard.                                                      
good cause is the movant’s diligence in attempting to meet the [scheduling] order’s 
requirements.”  Sherman, 532 F.3d at 716–17 (citation and internal quotation marks 
omitted)).  If the court is satisfied that the movant was diligent, it will also generally 

consider possible prejudice to the nonmovant.  See 

.            
    There is certainly overlap between the factors bearing on the Rule 15 and Rule 16 
inquiries, but these are distinct inquiries that serve distinct purposes.  Rule 16(b)(4) must 
be addressed first, as it resolves whether the scheduling order should be modified.  If the 
court finds good cause under Rule 16, then the court proceeds to the Rule 15 inquiry, which 

resolves whether the complaint can be amended.  In other words, Rule 16 opens the door 
to Rule 15.                                                               
                              III                                        
    The first and only order of business in this appeal is the good-cause showing 
required by Rule 16.3  This, like other scheduling-order matters, falls within the magistrate 

judge’s broad discretion.  As Chief Judge John Tunheim observed in Portz v. St. Cloud 
State University:                                                         
    Eighth Circuit caselaw reflects the importance of diligence to the good cause 
    analysis, but this caselaw does not go so far as to state that diligence is 
    required for the district court to find good cause.  See, e.g., Harris v. FedEX 
    Nat’l LTL, Inc., 

 (8th Cir. 2014) . . . .           


3    Neither Carleton nor Shank challenges Judge Bowbeer’s findings and conclusions 
that the motion to amend was untimely; that Rule 15, not 

, controls; 
and that amendment is not futile or prejudicial.  See Def.’s Obj. at 2; Pl.’s Resp. at 2 [ECF 
No. 233].                                                                 
    Therefore, while diligence is the primary factor for assessing good cause, 
    nothing limits the Court’s “broad discretion in establishing and enforcing the 
    deadlines” in the scheduling order.  See Marmo v. Tyson Fresh Meats, Inc., 
    

 (8th Cir. 2006) . . . . Moreover, there is not a clear test for 
    when a party is diligent enough to establish good cause.             

No. 16-cv-1115 (JRT/LIB), 

, at *3–4 (D. Minn. Aug. 4, 2017).  Here, 
Judge Bowbeer found at least four factors amounted to good cause: (1) “the evidentiary 
burden [Shank] thought she faced,” (2) “the timeframe in which she obtained some of the 
information,” (3) Shank’s counsel’s “good faith, albeit mistaken, interpretation of the 
scheduling  order,”  and  (4)  an  absence  of  evidence  that  “Shank  was  dilatory  or 
otherwise . . . lack[ed] . . . diligence.”  Order at 13–14.               
    Carleton contends that Judge Bowbeer’s order is contrary to law because “this Court 
has repeatedly declined to find good cause under Rule 16 where, as here, discovery 
occurred after the motion to amend deadline but the movant had the majority of the required 
information earlier in the litigation.”  Def.’s Obj. at 3–4 (citing Portz v. St. Cloud State 
Univ., No. 16-cv-1115 (JRT/LIB), 

, at *10–11 (D. Minn. Jan. 17, 2017); 
Moldex Metric, Inc. v. 3M Co., No. 14-cv-1821 (JNE/FLN), 

, at *2 
(D. Minn. Mar. 4, 2016); Promotional Mktg. Insights, Inc. v. Affiliated Comput. Servs., 
Inc., No. 11-cv-2795 (PJS/AJB), 

, at *4–5 (D. Minn. July 19, 2013); 
Khoday  v.  Symantec  Corp.,  No. 11-cv-180  (JRT/TNL),  

,  at  *2 

(D. Minn. May 15, 2013); Luigino’s, Inc. v. Pezrow Cos., 

 (D. Minn. 
1998)).                                                                   
    The line of cases upon which Carleton relies, which can be traced back to the Aviva 
case,  is  distinguishable.    See  Aviva  Sports,  Inc.  v.  Fingerhut  Direct  Mktg.,  Inc., 
No. 09-cv-1091 (JNE/JSM), 

, at *6 (D. Minn. Oct. 7, 2010) (“[A] party 
does not meet the good cause standard under Rule 16(b) if the relevant information on 
which it based the amended claim was available to it earlier in the litigation.” (citations 

omitted)).  In many of those cases, dilatory plaintiffs “offer[ed] no justification for [their] 
extreme dereliction” of deadlines.  Luigino’s, Inc., 178 F.R.D. at 525–26; see, e.g., Aviva, 

, at *7 (“[Plaintiff] made neither argument nor a showing that it had 
complied with this Court’s Pretrial Scheduling Order or had good cause for seeking to 
amend . . . well after the deadline for bringing such a motion.”).  Here, Shank has offered 

an explanation—several reasonable and persuasive ones, at that.           
    None of the cases cited by Carleton were decided after the intra-District split, and 
none involved the same ambiguous scheduling order present in this case.  It is true that the 
Aviva line of cases reflects a hard line being taken in specific cases against plaintiffs who 
delay in bringing motions to amend for punitive damages—and certainly it was reasonable 

for Carleton to take the position that it did on this issue—but these cases do not create a 
bright-line rule that makes Judge Bowbeer’s decision clearly contrary to law.   
    Moreover, there is Eighth Circuit precedent suggesting that a “change in the law” 
may form the basis for good cause.  Hartis v. Chicago Title Ins. Co., 

 
(8th Cir. 2012) (finding no good cause where the movant did “not allege[] a change in the 

law, the discovery of new facts, or some other change in circumstances” to justify belated 
filing (citing Sherman, 

)); see also IBEW Local 98 Pension Fund v. Best 
Buy Co., 

, 523–24 (D. Minn. 2018).  The state of the law in the District 
regarding Rule 15 and 

 was in flux around the time of the original 
motion-to-amend deadline, and it continued to be in flux leading up to Shank’s filing of 
her motion to amend.  This unsettled, changing legal landscape provided a basis for 
Shank’s reasonable belief that she needed “clear and convincing” evidence before filing 

her motion.  See 

, subd. 1(a).  It is understandable that attorneys would 
err on the side of more, not less, evidence, particularly given that some judges still require 
a showing of “prima facie evidence” under 

.  See Order at 6–12, 
Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-cv-3183 (ADM/LIB) 
(D. Minn. Mar. 8, 2018), ECF No. 534.                                     

    Finally, Shank’s belated motion does not reflect “carelessness,” “neglect,” or a 
“litany of lame excuses,” which would justify denying her motion to amend.  Cf. Archer 
Daniels Midland Co. v. Aon Risk Servs. Inc., 

 (D. Minn. 1999).  
Instead, the record reveals Shank’s incorrect but good-faith interpretation of the scheduling 
order and an understandable assumption that she needed clear and convincing evidence to 

accompany her motion.  There is nothing here to suggest that a lawyer or party is inventing 
excuses and applying them retroactively.  The ambiguous scheduling order and changing 
interpretation of the interplay between Rule 15 and 

 created a “perfect 
storm” that amounts to good cause for Shank’s belated motion to amend.4  Like Judge 


4    Carleton appears to argue that if Shank’s conduct satisfies Fed. R. Civ. P. 16(b)(4), 
then deadlines don’t matter and the good-cause standard is a farce.  See Def.’s Obj. at 5, 9 
(citing Luigino’s, Inc., 178 F.R.D. at 525–26 (“A scheduling order is an important tool in 
controlling litigation . . . . [and] is not a frivolous piece of paper . . . . If an amendment of 
the pleadings can be considered timely under these circumstances, then the good cause 
showing of Rule 16(b) is an apparition . . . .”)).  Motions to amend involving punitive 
damages and state substantive law are distinguishable from more run-of-the-mill motions 
to amend, and this case also included unusual complications of an ambiguous scheduling 
Bowbeer, the Court “is persuaded that [Shank] has not intentionally or carelessly neglected 
the mandates of the Pretrial Scheduling Order” and rejects Carleton’s argument “that the 
proposed claim could have been asserted at an earlier time.”  TCS Holdings, Inc., 

, at *2 (D. Minn. May 16, 2008); see Def.’s Obj. at 5–9.  Judge Bowbeer’s order 
granting leave to amend therefore was not clearly erroneous or contrary to law.   

    Based on the foregoing, and on all of the files, records, and proceedings in the 
above-captioned  matter,  IT  IS  HEREBY  ORDERED  THAT  Carleton’s  Objection 

[ECF No. 229] is OVERRULED and Magistrate Judge Bowbeer’s October 15, 2018 
Order [ECF No. 221] is AFFIRMED.                                          

Dated:  January 7, 2019       s/ Eric C. Tostrud                          
                             Eric C. Tostrud                             
                             United States District Court                









order and a shift in the law.  A finding of good cause on these unique facts does not give 
plaintiffs carte blanche to disregard scheduling orders in future cases.   

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                

Elizabeth M. Shank,                 File No. 16-cv-01154 (ECT/HB)        

          Plaintiff,                                                     
                                    MEMORANDUM OPINION                   
v.                                        AND ORDER                      

Carleton College,                                                        

          Defendant.                                                     


    On October 15, 2018, Magistrate Judge Hildy Bowbeer issued an order addressing 
several issues, including granting the motion of Plaintiff Elizabeth M. Shank (“Shank”) to 
amend her complaint to allege punitive damages in connection with her state-law claims.  
Defendant Carleton College (“Carleton”) objects only to the part of Judge Bowbeer’s order 
finding that “good cause” existed under Fed. R. Civ. P. 16 to amend the scheduling order 
to permit consideration of Shank’s late motion to amend.  Having carefully reviewed the 
underlying order, the parties’ arguments, and the applicable law, the Court will affirm 
Judge Bowbeer’s finding of good cause and, as a result, her order granting Shank’s motion 
to amend.                                                                 
                               I                                         
    The background facts are set forth more fully in court orders dated January 9, 2017 
[ECF No. 41] and October 15, 2018 [ECF No. 221], and will not be recited at length here.  
In short, Shank brought this action challenging Carleton’s alleged mishandling of two 
on-campus rapes.  See First Am. Compl. ¶ 1 [ECF No. 6].  Shank originally sought punitive 
damages only as to her federal claim under Title IX, expressly noting in her complaint that 
“[t]he law of this District precludes the initial pleading of a claim of punitive damages 
as to state law claims.”1  Id. ¶ n, 49 n.3.  Approximately two years later, and after the close 

of discovery, she filed a motion to amend her complaint to add a claim for punitive damages 
as to her state-law claims.  See Mot. to Amend [ECF No. 64]; Proposed Second Am. 
Compl. ¶¶ 263–65, n [ECF No. 72-3].                                       
    Shank’s motion to amend was complicated by two issues: (1) the timeliness of her 
motion, in view of the scheduling order, and (2) a dispute about whether Fed. R. Civ. P. 15 

or 

 provided the applicable legal standard for considering the motion.  
Judge Bowbeer found that Shank’s motion was untimely.  ECF No. 221 (“Order”) at 13.  
Although the scheduling order from the initial pretrial conference had left a blank for 
“[m]otions seeking to add claim for punitive damages,” ECF No. 45 at 3, Judge Bowbeer 
concluded that the general deadline of August 1, 2017, for “[m]otions seeking to amend 

pleadings,” 

 was controlling, making Shank’s motion over a year late, Order at 12–13.  
And although the law in the District had long been that Fed. R. Civ. P. 15(a)(2)’s “freely 
give leave” standard yields to 

.191’s “prima facie evidence” standard, 
Judge Bowbeer joined a recent intra-District trend and concluded the opposite.  See Order 
at 8–10.  But neither of these rulings is at issue in this appeal.  See Def.’s Obj. at 1–2 [ECF 

No. 229].                                                                 

1    Shank also expressly acknowledged that “there is no controlling authority in this 
District bearing on the availability of punitive damages under Title IX,” and that she was 
making  “an  argument  for  extending,  modifying,  or  reversing  existing  law  or  for 
establishing new law.”  First Am. Compl. at 49 n.3 [ECF No. 6].           
    The sole issue that Carleton appeals is Judge Bowbeer’s threshold determination 
that “good cause” existed under Rule 16 to consider Shank’s belated motion to amend 
under Rule 15.  See 

  Having found good cause, Judge Bowbeer then entertained the 

merits of Shank’s motion to amend.  She concluded that the court was “not working with 
a tabula rasa” because Judge Schiltz had already concluded the complaint stated a claim 
for “deliberate indifference” under Title IX and “intentional or reckless” conduct for 
intentional infliction of emotional distress.  Order at 15–16.  The court held that these 
standards “closely approximate[] the punitive damages standard under Minnesota law” and 

that Shank had therefore “allege[d] a plausible claim ‘that the acts of the defendant 
show[ed] deliberate disregard for the rights or safety of others.’”  

 at 16–18 (second 
alternation in original) (quoting 

).  Accordingly, Judge Bowbeer 
granted Shank’s motion to amend to add a claim for punitive damages as to her state-law 
claims.  

.                                                       

                               II                                        
                               A                                         
    Motions to amend for punitive damages are nondispositive motions, despite their 
potentially  dispositive  implications.    See  

(b)(1)(A);  Local  Rule 
7.1(b)(4)(A)(i)  (providing  that  “[n]ondispositive  motions  covered  by  this  subsection 

include . . . motions to amend pleadings”); Daley v. Marriott Int’l, Inc., 

, 893 
n.9  (8th  Cir.  2005)  (referring  to  a  motion  for  leave  to  amend  the  complaint  as  a 
“nondispositive  pretrial  motion”);  Olson  v.  Brott,  No.  09-cv-790  (JNE/JJG), 

, at *3 (D. Minn. Dec. 11, 2009) (rejecting plaintiff’s argument that “the 
denial of his motion to amend . . . constituted a judgment on the merits” and was therefore 
dispositive, such that “the magistrate judge lacked jurisdiction to issue an order subject to 
a ‘clearly erroneous’ or ‘contrary to law’ standard of review” (citations omitted)).  As a 

result, Judge Bowbeer’s decision on the motion to amend will be reversed only if “clearly 
erroneous or contrary to law.”  

(b)(1)(A); accord Local Rule 72.2(b)(3).   
    This standard of review “is extremely deferential.”  Magee v. Trs. of the Hamline 
Univ., 

 (D. Minn. 2013).  “A ruling is clearly erroneous when 
the reviewing court is left with the definite and firm conviction that a mistake has been 

committed.  A decision is contrary to law when a court fails to apply or misapplies relevant 
statutes, case law or rules of procedure.”  Smith v. Bradley Pizza, Inc., 

 (D. Minn. 2018) (citations and internal quotation marks omitted).  “If the 
magistrate judge’s account of the evidence is plausible in light of the record viewed in its 
entirety, the reviewing court may not reverse it even though had it been sitting as the trier 

of fact, it would have weighed the evidence differently.”  Meyer v. Haeg, No. 15-cv-2564 
(SRN/HB), 

, at *3 (D. Minn. Jan. 4, 2016) (reviewing decision to grant 
leave to amend).                                                          
                               B                                         
    Shank’s motion to amend implicates two federal rules and two state statutes: Fed. R. 

Civ. P. 15 and 16, and 

 and 549.20.  But only Rule 16 and its 
good-cause standard are directly at issue on appeal.  A brief discussion of the interaction 
between Rules 15 and 16 is useful.                                        
    Rule  15  requires  the  court  to  “freely  give  leave”  to  amend  “when  justice  so 
requires.”  Fed. R. Civ. P. 15(a)(2).  Even though this is a liberal standard, parties do not 
have an absolute right to amend for any claim at any time.  See Sherman v. Winco 

Fireworks, Inc., 

 (8th Cir. 2008).  A motion to amend may be denied for 
“compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to 
cure deficiencies by amendments previously allowed, undue prejudice to the non-moving 
party, or futility of the amendment.”  

 (citation and internal quotation marks omitted).   
    But when a Rule 15 motion is brought after the court-ordered deadline, the court 

must conduct a “good cause” analysis under Rule 16 to determine if amendment of the 
scheduling order is appropriate.2  See Sherman, 

; see also TCS Holdings, 
Inc. v. OnVoy, Inc., No. 07-cv-1200 (DWF/AJB), 

, at *2 (describing 
how the movant must show good cause to “justify modification of the scheduling order, 
thereby re-establishing the timeliness of the amendment motion itself”).  This is a more 

stringent standard than in Rule 15.  See Bradford v. DANA Corp., 

 (8th 
Cir. 2001) (calling the good-cause standard “less forgiving”).  “The primary measure of 

2    Rule 16 does not distinguish between “good cause” and “excusable neglect” in the 
way Rule 6 does.  Compare Fed. R. Civ. P. 16(b)(4), with Fed. R. Civ. P. 6(b)(1).  Arguably 
the excusable-neglect standard should apply when a party seeks to modify the scheduling 
order after the deadline has passed.  See Fed. R. Civ. P. 6(b)(1)(B) (requiring a showing of 
good cause and excusable neglect to extend an expired deadline); Portz v. St. Cloud State 
Univ., No. 16-cv-1115 (JRT/LIB), 

, at *3 n.1 (D. Minn. Aug. 4, 2017) 
(noting that “a somewhat different analysis may be warranted for deadlines that have 
already run”).  But the plain text of Rule 16 does not make this distinction.  And in 
Sherman, the Eighth Circuit was explicit that the “good-cause standard governs when a 
party seeks leave to amend . . . outside of the time period established by a scheduling 
order.”  

.  Accordingly, the Court considers this appeal in light of the 
good-cause standard.                                                      
good cause is the movant’s diligence in attempting to meet the [scheduling] order’s 
requirements.”  Sherman, 532 F.3d at 716–17 (citation and internal quotation marks 
omitted)).  If the court is satisfied that the movant was diligent, it will also generally 

consider possible prejudice to the nonmovant.  See 

.            
    There is certainly overlap between the factors bearing on the Rule 15 and Rule 16 
inquiries, but these are distinct inquiries that serve distinct purposes.  Rule 16(b)(4) must 
be addressed first, as it resolves whether the scheduling order should be modified.  If the 
court finds good cause under Rule 16, then the court proceeds to the Rule 15 inquiry, which 

resolves whether the complaint can be amended.  In other words, Rule 16 opens the door 
to Rule 15.                                                               
                              III                                        
    The first and only order of business in this appeal is the good-cause showing 
required by Rule 16.3  This, like other scheduling-order matters, falls within the magistrate 

judge’s broad discretion.  As Chief Judge John Tunheim observed in Portz v. St. Cloud 
State University:                                                         
    Eighth Circuit caselaw reflects the importance of diligence to the good cause 
    analysis, but this caselaw does not go so far as to state that diligence is 
    required for the district court to find good cause.  See, e.g., Harris v. FedEX 
    Nat’l LTL, Inc., 

 (8th Cir. 2014) . . . .           


3    Neither Carleton nor Shank challenges Judge Bowbeer’s findings and conclusions 
that the motion to amend was untimely; that Rule 15, not 

, controls; 
and that amendment is not futile or prejudicial.  See Def.’s Obj. at 2; Pl.’s Resp. at 2 [ECF 
No. 233].                                                                 
    Therefore, while diligence is the primary factor for assessing good cause, 
    nothing limits the Court’s “broad discretion in establishing and enforcing the 
    deadlines” in the scheduling order.  See Marmo v. Tyson Fresh Meats, Inc., 
    

 (8th Cir. 2006) . . . . Moreover, there is not a clear test for 
    when a party is diligent enough to establish good cause.             

No. 16-cv-1115 (JRT/LIB), 

, at *3–4 (D. Minn. Aug. 4, 2017).  Here, 
Judge Bowbeer found at least four factors amounted to good cause: (1) “the evidentiary 
burden [Shank] thought she faced,” (2) “the timeframe in which she obtained some of the 
information,” (3) Shank’s counsel’s “good faith, albeit mistaken, interpretation of the 
scheduling  order,”  and  (4)  an  absence  of  evidence  that  “Shank  was  dilatory  or 
otherwise . . . lack[ed] . . . diligence.”  Order at 13–14.               
    Carleton contends that Judge Bowbeer’s order is contrary to law because “this Court 
has repeatedly declined to find good cause under Rule 16 where, as here, discovery 
occurred after the motion to amend deadline but the movant had the majority of the required 
information earlier in the litigation.”  Def.’s Obj. at 3–4 (citing Portz v. St. Cloud State 
Univ., No. 16-cv-1115 (JRT/LIB), 

, at *10–11 (D. Minn. Jan. 17, 2017); 
Moldex Metric, Inc. v. 3M Co., No. 14-cv-1821 (JNE/FLN), 

, at *2 
(D. Minn. Mar. 4, 2016); Promotional Mktg. Insights, Inc. v. Affiliated Comput. Servs., 
Inc., No. 11-cv-2795 (PJS/AJB), 

, at *4–5 (D. Minn. July 19, 2013); 
Khoday  v.  Symantec  Corp.,  No. 11-cv-180  (JRT/TNL),  

,  at  *2 

(D. Minn. May 15, 2013); Luigino’s, Inc. v. Pezrow Cos., 

 (D. Minn. 
1998)).                                                                   
    The line of cases upon which Carleton relies, which can be traced back to the Aviva 
case,  is  distinguishable.    See  Aviva  Sports,  Inc.  v.  Fingerhut  Direct  Mktg.,  Inc., 
No. 09-cv-1091 (JNE/JSM), 

, at *6 (D. Minn. Oct. 7, 2010) (“[A] party 
does not meet the good cause standard under Rule 16(b) if the relevant information on 
which it based the amended claim was available to it earlier in the litigation.” (citations 

omitted)).  In many of those cases, dilatory plaintiffs “offer[ed] no justification for [their] 
extreme dereliction” of deadlines.  Luigino’s, Inc., 178 F.R.D. at 525–26; see, e.g., Aviva, 

, at *7 (“[Plaintiff] made neither argument nor a showing that it had 
complied with this Court’s Pretrial Scheduling Order or had good cause for seeking to 
amend . . . well after the deadline for bringing such a motion.”).  Here, Shank has offered 

an explanation—several reasonable and persuasive ones, at that.           
    None of the cases cited by Carleton were decided after the intra-District split, and 
none involved the same ambiguous scheduling order present in this case.  It is true that the 
Aviva line of cases reflects a hard line being taken in specific cases against plaintiffs who 
delay in bringing motions to amend for punitive damages—and certainly it was reasonable 

for Carleton to take the position that it did on this issue—but these cases do not create a 
bright-line rule that makes Judge Bowbeer’s decision clearly contrary to law.   
    Moreover, there is Eighth Circuit precedent suggesting that a “change in the law” 
may form the basis for good cause.  Hartis v. Chicago Title Ins. Co., 

 
(8th Cir. 2012) (finding no good cause where the movant did “not allege[] a change in the 

law, the discovery of new facts, or some other change in circumstances” to justify belated 
filing (citing Sherman, 

)); see also IBEW Local 98 Pension Fund v. Best 
Buy Co., 

, 523–24 (D. Minn. 2018).  The state of the law in the District 
regarding Rule 15 and 

 was in flux around the time of the original 
motion-to-amend deadline, and it continued to be in flux leading up to Shank’s filing of 
her motion to amend.  This unsettled, changing legal landscape provided a basis for 
Shank’s reasonable belief that she needed “clear and convincing” evidence before filing 

her motion.  See 

, subd. 1(a).  It is understandable that attorneys would 
err on the side of more, not less, evidence, particularly given that some judges still require 
a showing of “prima facie evidence” under 

.  See Order at 6–12, 
Inline Packaging, LLC v. Graphic Packaging Int’l, LLC, No. 15-cv-3183 (ADM/LIB) 
(D. Minn. Mar. 8, 2018), ECF No. 534.                                     

    Finally, Shank’s belated motion does not reflect “carelessness,” “neglect,” or a 
“litany of lame excuses,” which would justify denying her motion to amend.  Cf. Archer 
Daniels Midland Co. v. Aon Risk Servs. Inc., 

 (D. Minn. 1999).  
Instead, the record reveals Shank’s incorrect but good-faith interpretation of the scheduling 
order and an understandable assumption that she needed clear and convincing evidence to 

accompany her motion.  There is nothing here to suggest that a lawyer or party is inventing 
excuses and applying them retroactively.  The ambiguous scheduling order and changing 
interpretation of the interplay between Rule 15 and 

 created a “perfect 
storm” that amounts to good cause for Shank’s belated motion to amend.4  Like Judge 


4    Carleton appears to argue that if Shank’s conduct satisfies Fed. R. Civ. P. 16(b)(4), 
then deadlines don’t matter and the good-cause standard is a farce.  See Def.’s Obj. at 5, 9 
(citing Luigino’s, Inc., 178 F.R.D. at 525–26 (“A scheduling order is an important tool in 
controlling litigation . . . . [and] is not a frivolous piece of paper . . . . If an amendment of 
the pleadings can be considered timely under these circumstances, then the good cause 
showing of Rule 16(b) is an apparition . . . .”)).  Motions to amend involving punitive 
damages and state substantive law are distinguishable from more run-of-the-mill motions 
to amend, and this case also included unusual complications of an ambiguous scheduling 
Bowbeer, the Court “is persuaded that [Shank] has not intentionally or carelessly neglected 
the mandates of the Pretrial Scheduling Order” and rejects Carleton’s argument “that the 
proposed claim could have been asserted at an earlier time.”  TCS Holdings, Inc., 

, at *2 (D. Minn. May 16, 2008); see Def.’s Obj. at 5–9.  Judge Bowbeer’s order 
granting leave to amend therefore was not clearly erroneous or contrary to law.   

    Based on the foregoing, and on all of the files, records, and proceedings in the 
above-captioned  matter,  IT  IS  HEREBY  ORDERED  THAT  Carleton’s  Objection 

[ECF No. 229] is OVERRULED and Magistrate Judge Bowbeer’s October 15, 2018 
Order [ECF No. 221] is AFFIRMED.                                          

Dated:  January 7, 2019       s/ Eric C. Tostrud                          
                             Eric C. Tostrud                             
                             United States District Court                









order and a shift in the law.  A finding of good cause on these unique facts does not give 
plaintiffs carte blanche to disregard scheduling orders in future cases.