Kutz v. NGI Capital, Inc.

U.S. District Court, District of Minnesota December 6, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Allison Kutz, Case No. 22-cv-1623 (NEB/ECW)

Plaintiff,

v. ORDER

NGI Capital, Inc. doing business as Apex
IT and Eric Christopher Rapp,

Defendants.

This matter is before the Court on Defendants’ Motion to Amend Answer to Plead
Counterclaims and Extend the Discovery Deadline (Dkt. 145). After the hearing on the
Motion to Amend, the Court ordered Defendants to file a supplemental declaration
attaching the Salesforce productions referenced in the Dorr Declaration (Dkt. 148),
indicating which documents were received on which date, and to file any supplemental
briefing with respect to those additional exhibits. (Dkt. 193.) The Court also gave
Plaintiff the opportunity to respond that supplementation. (Id.) Supplemental briefing
has been completed and the Motion to Amend is now ripe for a decision. (Dkts. 194-
198.)
For the reasons stated below, the Motion to Amend is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. General Background

On June 21, 2022, Plaintiff Allison Kutz (“Plaintiff” or “Kutz”) initiated this
employment discrimination, retaliation, and assault case under Title VII of the Civil
Rights Act, the Minnesota Human Rights Act (“MHRA”), and Minnesota and Illinois
common law. (Dkt. 1.) Kutz alleges that she initially began working for Defendant NGI
Capital, Inc. doing business as Apex IT (“Apex”) in October 2015 as a Practice Director,
and that within her first year of employment, Defendant Eric Christopher Rapp (“Rapp”),

the Chief Executive Officer at Apex, began sexually harassing her, leading to her
resignation in May 2019. (Id. ¶¶ 13-15, 37.) Kutz alleges that upon receiving assurances
from the Executive Vice President at Apex that the company was instituting changes to
improve its work environment, including by hiring a human resources professional, she
agreed to return to her former role at Apex in November 2019. (Id. ¶¶ 38-57.)

Kutz alleges that about 6 months after she returned, Rapp again began sexually
harassing her and she refused his advances, leading to her termination in September
2021. (Dkt. 1 ¶¶ 57-58, 125-139.)
Following her termination on or around September 15, 2021, Kutz began her
employment at non-party Salesforce. (Dkt. 154 ¶ 4.) Kutz currently works at Salesforce

and was employed there between her two periods of employment with Apex. (Dkt. 148 ¶
2.)
B. Procedural Background
On July 27, 2022, Defendants filed a Motion to Dismiss. (Dkt. 11.)
On October 11, 2022, this Court issued a Scheduling Order establishing a
December 1, 2022 deadline to amend the pleadings or add parties. (Dkt. 28 at 4.) In

addition, the Court ordered that fact discovery must be commenced in time to be
completed by June 15, 2023 and set a deadline for all nondispositive motions to be filed
and served on or before June 29, 2023. (Id. at 2.) Discovery was not stayed pending a
decision on the Motion to Dismiss.
Maggie Kutz (“Maggie”) is Plaintiff’s sister. (Dkt. 148 ¶ 2.) Maggie currently
works at Salesforce and worked there during Plaintiff’s employment with Apex. (Id.)

Defendants subpoenaed documents from Maggie on October 18, 2022, and she produced
documents on November 7, 2022; January 13, 2023; April 18, 2023; May 8, 2023; and
March 1, 2024.1 (Dkt. 154 ¶ 7; see also Dkt. 148 ¶ 3.)
Defendants served their first set of Requests for the Production of Documents
(“RFP Set I”) on Plaintiff on October 14, 2022. (Dkt. 154 ¶ 16.) On November 14,

2022, Plaintiff served her initial responses to the RFP Set I on Defendants. (Id. ¶ 17.)
On November 21, 2022, Plaintiff produced her first set of documents to Defendants. (Id.
¶ 5.) This production included the emails that Defendants claim give rise to their after-
acquired evidence affirmative defense (discussed infra), in which they claim Plaintiff
improperly shared Apex’s confidential information. (See Dkt. 148-2, proposed

counterclaim ¶ 58).)

1 The parties did not provide a copy of this subpoena or documents produced in
response to this subpoena to the Court.
Plaintiff then served Amended Responses to the RFP Set I on January 13, 2023,
including to Request Nos. 9, 18, and 19. (Dkt. 154 ¶ 18.) Plaintiff’s initial response to

Request No. 26 and amended responses to Request Nos. 9, 18, and 19 were as follows:
REQUEST NO. 26: Your personnel files from all employment you have
held outside of Apex since 2019.

RESPONSE: Plaintiff objects to this Request as harassing, invading
Plaintiff’s privacy, and as serving no legitimate purpose in this litigation.
Plaintiff objects to this Request to the extent it seeks information protected
by the attorney-client privilege or work product doctrine. Plaintiff objects to
this Request as overly broad in subject matter in that it requests internal
documents from Plaintiff’s employers, which are not in Plaintiff’s custody
or control. Subject to, and without waiving these objections, Plaintiff
responds as follows: Plaintiff will produce relevant, responsive, and non-
privileged documents and ESI in her possession and/or control. See
Plaintiff’s produced documents. Discovery is continuing.

* * *
REQUEST NO. 9: Your communications with any current or former Apex
employee discussing Apex’s business, your current employment, or a
potential lawsuit against Apex.

AMENDED RESPONSE: Plaintiff objects to this Request as overly broad
and lacking in reasonable particularity. Plaintiff objects to this Request as
vague and overly broad as there is no temporal limitation. Plaintiff objects to
this Request as vague and overly broad as to subject matter, as the topics
requested are, in large part, unrelated, and “communications with any current
or former Apex employee discussing” Plaintiff’s “current employment” is
not relevant to this case. Plaintiff objects to this Request as it seeks
documents and ESI in Defendants’ possession and/or control. Plaintiff
further objects to this Request as seeking information that is duplicative of
other Requests. Subject to and without waiving these objections, Plaintiff
responds as follows: Plaintiff will produce relevant, responsive, and non-
privileged documents and ESI in her possession and/or control, including:

- Communications with any current or former Apex employee discussing the
potential lawsuit against Apex, and Plaintiff affirmatively states that she is
not knowingly withholding information related to this sub-Request.
- Communications with any current or former Apex employee discussing her
current employment, and Plaintiff affirmatively states that she is not
knowingly withholding information related to this sub-Request.
- Plaintiff will only produce communications with any current or former
Apex employee discussing Apex’s business if that information is related to
the allegations, claims, defenses, or damages in this case, as communications
related to common or day-to-day business matters are irrelevant and
overbroad, and, further, Skype and email communications are in Defendants’
custody and/or control.
See Plaintiff’s produced documents. Discovery is continuing.

REQUEST NO. 18: Your communications regarding or referring to Apex
or Rapp following your separation of employment, including with any Apex
business partner such as Oracle or Salesforce.

AMENDED RESPONSE: Plaintiff objects to this Request as overly broad
and lacking in reasonable particularity as to subject matter, including because
Apex is in the same professional industry as Oracle and Salesforce. Plaintiff
also objects to this Request as it is unclear what timeframe Defendants are
referring to when stating “following your separation of employment.”
Plaintiff objects to the extent this Request seeks information protected by the
attorney-client privilege and/or the work product doctrine. Plaintiff further
objects to this Request as seeking information that is duplicative of other
Requests. Subject to and without waiving these objections, Plaintiff responds
as follows: Plaintiff will produce relevant, responsive, and non-privileged
documents and ESI in her possession and/or control following her separation
from Defendant Apex in 2019 and her termination from Defendant Apex in
2021, but objects to producing information from her employment that
references Defendants, to the extent it exists, unless that information relates
to the allegations, claims, defenses, or damages in this case. Plaintiff also
notes that she disclosed a conflict of interest related to Apex with her current
employer, which has been produced as KUTZ0001600-1601. Plaintiff
affirmatively states that she is not knowingly withholding information
otherwise related to this Request. See Plaintiff’s produced documents.
Discovery is continuing.

REQUEST NO. 19: Your communications with any Apex employee while
you were not employed by Apex in 2019, and following your separation of
employment in 2021.

AMENDED RESPONSE: Plaintiff objects to this Request as overly broad
and lacking in reasonable particularity as there is no limitation on subject
matter. Plaintiff objects to this Request as it seeks documents not relevant to
the claims and defenses in this case, and is thereby not proportional to the
needs of the case. Plaintiff objects to this Request as it seeks documents and
ESI in Defendants’ possession and/or control. Plaintiff objects to this
Request as seeking information that is duplicative of other Requests. Subject
to and without waiving these objections, Plaintiff responds as follows:
Plaintiff will produce relevant, responsive, and non-privileged documents
and ESI in her possession and/or control, including communications with any
Apex employee about the allegations, claims, defenses, or damages in this
case, including her separation and return from Apex in 2019 and her
termination from Apex in 2021. Plaintiff will not produce every
communication with every Apex employee over multiple years if those
communications are unrelated to the allegations, claims, defenses, or
damages in this case, as that information is irrelevant, overbroad, and
disproportionate to the needs of the case. See Plaintiff’s produced documents.
Discovery is continuing.

(Dkt. 154 ¶ 18.)

On March 2, 2023, United States District Judge Nancy E. Brasel denied
Defendants’ Motion to Dismiss. (Dkt. 37.)
On March 15, 2023, Defendants filed their Answer to the Complaint.2 (Dkt. 41.)
As part of their Answer, Defendants asserted the following affirmative defense: “Kutz’s
alleged claim for damages is barred by the doctrine of after-acquired evidence.” (Id. at
30.) At the hearing on the instant Motion, Defendants’ counsel represented that in
November 2022, Plaintiff made a production that included documents showing she was
using her personal Gmail account while employed by Apex to send confidential
information to a friend who worked at a competitor (not Salesforce), which included
highly confidential spreadsheets that Apex only obtained through a confidentiality
agreement. Counsel also represented that while Defendants received that information in

2 The Court notes that Defendants had sought to stay answering the Complaint
pending the Motion to Dismiss, which Judge Brasel denied as moot. (See Dkt. 37.)
November of 2022, Defendants elected not to pursue any claims against Plaintiff for that
conduct because while that conduct violated policy, it was not obvious what damages

Defendants had incurred as a result.
On March 15, 2023, Defendants brought a Motion to Compel (Dkt. 42), seeking in
part, Plaintiff’s personnel files from Salesforce, claiming they were relevant to damages
and other defenses. (Dkt. 43 at 33.) Plaintiff had objected to producing her personnel
file from Salesforce, and other Salesforce communications about Apex or Rapp (asserting
that they were outside of her control). (Dkt. 154 ¶¶ 16-19.) Defendants did not seek to

compel those communications as part of their Motion to Compel. (Id.; see also Dkt. 43 at
33-35 (seeking Salesforce records but not communications).)
On May 8, 2023, the Court issued the following Order: “The deadline for non-
dispositive motions relating to documents remains June 29, 2023. The Court will set
deadlines for fact depositions and expert discovery after ruling on Defendants’ motion to

compel (Dkt. 42) and Plaintiff’s motion to amend (Dkt. 56).” (Dkt. 74.) The Court did
not extend the deadline for fact discovery generally and did state that: “The deadline for
document production remains June 15, 2023.” (Id.)
On June 2, 2023, this Court granted in part Defendants’ Motion to Compel,
including with respect to Request No. 26 as follows:

As such, Defendants’ request is granted to the extent they seek information
relating to Plaintiff’s qualifications for employment, promotion, transfer,
additional compensation, discharge, or other disciplinary action while at
Salesforce to the extent Plaintiff can obtain such information by requesting
her Salesforce personnel file pursuant to the Illinois Open Records Act.
Plaintiff must request her personnel file under the Illinois Open Records Act
within 2 weeks from the date of this Order and produce documents relating
to her qualifications for employment, promotion, transfer, additional
compensation, discharge or other disciplinary action within 30 days after she
receives the file. However, to the extent Defendants seek information about
Plaintiff’s allegation in the Complaint that “Apex, presumably at Rapp’s
insistence, has also failed to confirm her employment with Apex for purposes
of Plaintiff’s attempts to secure new employment, causing her to fail an
employment background check” (Dkt. 1 ¶ 140), Defendants have not
identified any discovery request to which this information is responsive, as
the Court understands this allegation does not relate to Plaintiff’s Salesforce
employment. The Motion is denied insofar as Defendants ask for an order
compelling production of this information, although nothing in this Order
precludes Defendants from serving discovery directed to this issue.

(Dkt. 78 at 33-34.) Following the Court’s Order, Plaintiff supplemented her response to
Request No. 26:
RESPONSE: Pursuant to the Court’s Order, Plaintiff will produce
documents relating to her qualifications for employment, promotion,
transfer, additional compensation, discharge, or other disciplinary action
relating to her employment at Salesforce. Consistent with the Parties’
agreement, Plaintiff has requested her employee files from Salesforce by way
of an internal request through Salesforce Employee Services for her
employment in 2019 and her current employment, which began in 2021 and
will produce those records in Plaintiff’s forthcoming document production.
Plaintiff has also requested her personnel file by way of the Illinois Personnel
Record Review Act, 820 Ill. Comp. Stat § 40/2, and will produce any
additional, responsive information consistent with the Court’s Order.

(Dkt. 154 ¶ 20.)

On June 12, 2023, the Court extended the fact discovery deadline with respect to
certain unrelated outstanding discovery to June 29, 2023, and extended the non-
dispositive motion deadline to July 13, 2023. (Dkt. 82.)
On July 13, 2023, the Court notified the parties that it would set a new dispositive
motion deadline after ruling on Plaintiff’s anticipated discovery motion and Plaintiff’s
pending motion to amend. (Dkt. 85.) No other mention was made of modifying the
Scheduling Order.

During her August 2023 deposition, Defendants questioned Plaintiff about the
emails on which Defendants base (at least in part) their after-acquired evidence defense.
(Dkt. 154 ¶ 6.)
On August 31, 2023, the Court extended the time for Apex to produce documents
as ordered by the Court to September 30, 2023, but stated that “[a]ll other deadlines
remain unchanged.” (Dkt. 112.) At this point in time, “[a]ll other deadlines” included

the June 13, 2023 deadline for document production, which at most had been extended to
June 29, 2023. (See Dkt. 28 at 2; Dkt. 74; Dkt. 82.)
On October 2, 2023, the Court allowed a limited extension of time with respect to
discovery, until October 2, 2023, to have Apex produce any Skype messages. (Dkt. 125.)
Nothing in the October 2, 2023 Order otherwise modified the deadline for document

production.
Maggie was deposed on December 14, 2023. (Dkt. 154 ¶ 8.) According to
Defendants’ counsel, they learned the following from Maggie’s deposition:
Maggie Kutz had filed an internal complaint at Salesforce regarding
Defendants, which was never disclosed nor produced to Defendants[.]
Maggie Kutz testified that the point of making the complaint was that she did
not think Salesforce should do business with Apex. (Maggie Kutz Dep. 32,
55.) Maggie Kutz also testified “I think that Chris [Rapp] should never be
able to work in this industry” and “I think that Chris should have no part of
Apex. And if that means that that company is destroyed, then yes, I think that
Apex should no longer exist.” (Maggie Kutz Dep. 270.) Maggie Kutz never
produced this complaint.

(Dkt. 148 ¶ 4.)
In January 2024, Defendants issued their first subpoena to Salesforce, months after
the deadline for document production and well after any extensions granted by the Court

with respect to specific written discovery, seeking the following:
All records relating to concerns raised by, or an internal complaint made by,
SalesForce employee Margaret (Maggie) Kutz regarding Defendants NGI
Capital, Inc. d/b/a Apex IT and/or Eric (“Chris”) Rapp, including
investigation notes, complaints, and summaries.

(Dkt. 154-1.) In response, on February 8, 2024, Salesforce produced a single email from
Maggie’s Salesforce email account sent to legal compliance that alleged an ethics
violation of an unnamed Salesforce partner:
A systems integration partner of ours [sic] CEO currently has a pending
sexual assault and harrassment [sic] trial because of a lawsuit that was filed
against him. Because of this pending trial, and the charges brought against
him, and as I have been witness to this behavior numerous times I’d like to
ensure I report this the correct way to protect other women at Salesforce.

(Dkt. 196-1 at 2; see also Dkt. 148 ¶ 7.) Salesforce did not produce any further
documents on the basis of privilege. (Dkt. 148 ¶ 7.)
On February 16, 2024, Defendants sent a letter to Maggie’s counsel demanding
production of the complaint and to ensure all responsive documents were produced.
(Dkt. 148 ¶ 9.) On March 1, 2024, Maggie’s counsel responded to Defendants’ letter and
took the position that communications through her Salesforce email account were
“outside of her control and in the legal possession and control of Salesforce” and that
such communications needed to be obtained from Salesforce directly. (Dkt. 148 ¶ 10.)
On March 5, 2024, Salesforce produced a privilege log indicating that Maggie
participated in an interview responsive to the subpoena and that notes were taken. (Dkt.

148 ¶ 11; Dkt. 196-2 at 2.)
Salesforce ultimately produced a copy of Maggie’s complaint interview notes on
June 4, 2024. (Dkt. 148 ¶ 13; Dkt. 196-3 at 2-12; Dkt. 197-2 at 2-3.) These redacted
notes contained details from Maggie regarding Rapp and Apex’s alleged conduct against
herself and Plaintiff.
On June 12, 2024, this Court held a status conference with the parties. (Dkt. 140.)

The Court ordered as follows in conjunction with the status conference: “The parties are
directed to contact Judge Brasel[’]s chambers by joint email regarding their anticipated
cross-motions for partial summary judgment. They also must file a joint motion
regarding the schedule that states what discovery remains and contains a proposal for
post-summary judgment settlement discussions.” (Id. (emphasis added).) During that

call with the Court, Defendants made explicit mention of concerns regarding another
subpoenaed third party, Nicole Spivak, but did not raise any concern relating to any other
outstanding information, such as Salesforce’s response to the subpoena. (Dkt. 154 ¶ 10.)
According to Defendants’ counsel, based on the content of Maggie’s complaint to
Salesforce, and Defendants’ understanding that neither Plaintiff nor Maggie had reviewed

or produced relevant and responsive documents from their Salesforce accounts, claiming
that they were outside of their control, Defendants issued a second subpoena to
Salesforce on June 27, 2024. (Dkt. 148 ¶ 14.) The June 27, 2024 subpoena to Salesforce
sought the following:
Custodians: Employees Allison Kutz & Margaret (Maggie) Kutz Search
Parameters: All emails or messages sent/received on any platform (Teams,
Slack, Skype, Google Chat, etc) containing “Apex” or “Rapp” from 9/1/21
to present. Produce the full conversation for each search hit.

(Dkt. 154-2.)
On June 28, 2024, the parties filed a Joint Motion for Proposed Case Management
Order (Dkt. 142), making the following representations to Judge Brasel and seeking the
following relief:
1. The Parties have substantially completed discovery, but are working together
in good faith to finalize and resolve certain outstanding topics, including:

a. Obtaining and reviewing information from third party subpoenas;
b. Conducting a few remaining depositions;
c. Completing all document productions; and
d. Supplementing earlier discovery.

2. The Parties believe that the remaining discovery can be completed by July
31, 2024.

(Dkt. 142 at 1.) They did not request an extension of the deadlines for motions to amend
or other nondispositive motions, although they did address dispositive motion deadlines.
(Id. at 1-2.)
On July 8, 2024, Judge Brasel extended the deadline for completion of fact
discovery to July 31, 2024. (Dkt. 144.) She did not extend the deadline for motions to
amend or other nondispositive motions, although she did address deadlines for partial
summary judgment briefing. (Dkt. 144.)
On July 11, 2024, Salesforce produced 81 pages of documents to the parties in
response to Defendants’ second subpoena. (Dkt. 196-4 at 67-82.) The majority of the
communications are internal Salesforce instant messages and some appear to deal with
Kutz’s assertion of sexual harassment by Rapp, as well as competitive activities
involving Apex. (See, e.g., Dkt. 196-4 at 21, 53-54.)

On July 31, 2024, Defendants filed the present Motion to Amend. (Dkt. 145.)
Defendants seek an order permitting them to amend their Answer to plead counterclaims
against Plaintiff for breach of contract, tortious interference with prospective business
relations, and defamation; and to extend the discovery deadline to permit discovery into
the proposed Counterclaims.3 (Id.)

B. Proposed Counterclaims
Defendants seek to add the following proposed counterclaims to their Answer:
COUNTERCLAIM I
BREACH OF CONTRACT
By Apex IT

66. Kutz and Apex entered into a binding contract—i.e., the Confidentiality
and Inventions Agreement (“Agreement”).

67. Kutz signed the Agreement on November 5, 2019.

68. The Agreement was incorporated into her offer letter and was a material
condition of Apex IT allowing Kutz to return to Apex IT in the fall of 2019.
69. Pursuant to the Agreement, Kutz promised not to divulge or disclose any
Apex IT confidential information during or after her employment.

70. The Agreement defines confidential information to include “the identity
of customers and potential customers, the requirements and specifications of
customers and potential customers, contracts with customers and other
information regarding customers and potential customers, information
regarding active and inactive accounts, markets, fees, sales, margins, pricing
or purchasing information.”

3 The parties filed Partial Motions for Summary Judgment in August 2024. (Dkts.
155, 166.) Judge Brasel heard argument on those Partial Motions on November 18, 2024
and took them under advisement. (Dkt. 208.)
71. Kutz breached that confidentiality provision by, among other things: (1)
forwarding confidential information outside of Apex IT, including to a
competitor; (2) sharing competitive information with her sister, who was
competing for the same business at Salesforce; and (3) sharing competitive
and confidential information to Salesforce and customers about Apex IT in
an attempt to cause Apex IT to lose business opportunities.

72. The confidentiality provisions survive the termination of Kutz’s
employment with Apex IT.

73. The Agreement provides that Apex IT is entitled to injunctive relief in
the event of a breach, and that Kutz will be responsible for all attorneys’ fees
and costs incurred by Apex IT “in any action to enforce the provisions of this
Agreement or to seek a remedy, including injunctive relief, for Employee’s
breach of any provision of this Agreement.”

74. As a result of Kutz’s unlawful actions, Apex IT has suffered and
continues to suffer damages, including but not limited to, lost revenue and
profits, out of pocket expenses, and reputational damages, in an amount in
excess of $75,000. Apex IT is also entitled to attorney’s fees and costs under
the Agreement.

COUNTERCLAIM II
TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS
RELATIONS
By Apex IT

75. Apex IT had a prospective business relationship with ABC Customer and
an existing and prospective business relationship with Salesforce.

76. Kutz knew about Apex IT’s prospective business relationship with ABC
Customer, and about its business relationship with Salesforce.

77. Kutz intentionally and wrongfully interfered with those relationships by
spreading false information about Rapp and Apex IT, divulging confidential
and trade secret information she had no right to divulge, and acting to
deliberately sabotage Rapp’s and Apex IT’s business relationships.

78. Apex IT lost its prospective business relationship with ABC Customer
entirely, and its business relationship with Salesforce was diminished due to
Kutz’s conduct.
79. Kutz acted maliciously, with the specific intent of harming Rapp and
Apex IT.

80. As a result of Kutz’s unlawful actions, Apex IT has suffered and
continues to suffer damages, including but not limited to, lost revenue and
profits, out of pocket expenses, and reputational damages, in an amount in
excess of $75,000.

COUNTERCLAIM III
DEFAMATION
By Eric Christopher Rapp and Apex IT

81. Kutz has made untruthful statements about Apex IT and Rapp in an
attempt to damage Rapp’s and Apex IT’s reputations and to harm them
financially.

82. Kutz has falsely informed people in the industry that Rapp is under a
criminal investigation.

83. Kutz has falsely informed people in the industry that Rapp engaged in
egregious sexual harassment, and sexual assault, which is untrue.

84. Kutz has directed people to her Complaint against Rapp and Apex IT,
which falsely alleges “assault” and falsely alleges that Rapp picked her up
against her will and that she “screamed” to get him to stop. Kutz has admitted
that the latter statement, and other allegations in her Complaint, were false in
her deposition.

85. Kutz has disparaged Apex IT repeatedly in her position at Salesforce,
exaggerating any issues they have had with customers and generally
disparaging their services in an attempt to get customers not to hire Apex IT.

(Dkt. 148-2, proposed counterclaims ¶¶ 66-85.)
II. LEGAL STANDARD
Defendants’ Motion to Amend is generally governed by Rules 15 and 16 of the
Federal Rules of Civil Procedure and Local Rule 16.3 of the Local Rules for the District
of Minnesota.
A. Rule 15
Federal Rule of Civil Procedure 15(a) provides that “[t]he court should freely give

leave [to amend] when justice so requires.” The determination as to whether to grant
leave to amend is entrusted to the sound discretion of the trial court. See, e.g., Niagara of
Wisc. Paper Corp. v. Paper Indus. Union Mgmt. Pension Fund,

800 F.2d 742

, 749 (8th 
Cir. 1986) (citation omitted).  The Eighth Circuit has held that although amendment of a 
pleading “should be allowed liberally to ensure that a case is decided on its merits . . . 
there is no absolute right to amend.”  Ferguson v. Cape Girardeau Cnty.,

88 F.3d 647

, 

650-51 (8th Cir. 1996) (citing Thompson-El v. Jones,

876 F.2d 66, 67

 (8th Cir. 1989); 
Chesnut v. St. Louis Cnty.,

656 F.2d 343, 349

 (8th Cir. 1981)).           
    Denial of leave to amend may be justified by “undue delay, bad faith on the part of 
the moving party, futility of the amendment or unfair prejudice to the opposing party.”  
Sanders v. Clemco Indus.,

823 F.2d 214, 216

 (8th Cir. 1987) (citing Foman v. Davis,

371 U.S. 178, 182

 (1962)); see also Hillesheim v. Myron’s Cards & Gifts, Inc.,

897 F.3d 953, 955

 (8th Cir. 2018) (citation omitted) (“A district court’s denial of leave to amend a 
complaint may be justified if the amendment would be futile.”).4          
B.   Rule 16                                                              
    Under Rule 15(a), leave to amend should be granted liberally, if “justice so 

requires.”  However, the Eighth Circuit has held that when a party has filed a motion to 
amend the complaint after the deadline provided in a court’s pretrial scheduling order, 


4    The Court notes that Plaintiff has made no futility argument.        
then the court may properly require, pursuant to Federal Rule of Civil Procedure 16(b), 
that good cause be shown for leave to file a pleading that is out of time with that order.  

See Freeman v. Busch,

349 F.3d 582, 589

 (8th Cir. 2003) (citing In re Milk Prod. 
Antitrust Litig.,

195 F.3d 430, 437

 (8th Cir. 1999)).  “If we considered only Rule 15(a) 
without regard to Rule 16(b), we would render scheduling orders meaningless and 
effectively would read Rule 16(b) and its good cause requirement out of the Federal 
Rules of Civil Procedure.”  In re Milk Prod. Antitrust Litig.,

195 F.3d at 437-38

 (citation 
omitted).                                                                 

    Scheduling orders pursuant to Rule 16(b)(1) “assure[ ] that at some point both the 
parties and the pleadings will be fixed . . . .”  Fed. R. Civ. P. 16(b), advisory committee’s 
note to 1983 amendment.  Moreover, “Rule 16(b) assures that ‘[a] magistrate judge’s 
scheduling order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly 
disregarded . . . without peril.’”  Archer Daniels Midland v. Aon Risk Servs., Inc.,

187 F.R.D. 578, 582

 (D. Minn. 1999) (quoting Gestetner Corp. v. Case Equip. Co.,

108 F.R.D. 138, 141

 (D. Me. 1985)).  Under Rule 16(b), “[a] schedule may be modified only 
for good cause and with the judge’s consent.”  Fed. R. Civ. P. 16(b)(4).  Similarly, Local 
Rule 16.3 requires a party moving to modify a scheduling order to “establish good cause” 
for the proposed modification.  Further, regarding the timing of when such a motion must 

be made, Local Rule 16.3(d) states, “[e]xcept in extraordinary circumstances, before the 
passing of a deadline that a party moves to modify, the party must obtain a hearing date 
on the party’s motion to modify the scheduling order.  The hearing itself may take place 
after the deadline.”                                                      
    “The primary measure of good cause is the movant’s diligence in attempting to 
meet the order’s requirements.”  Sherman v. Winco Fireworks, Inc.,

532 F.3d 709, 716-17

 

(8th Cir. 2008) (citing Rahn v. Hawkins,

464 F.3d 813, 822

 (8th Cir. 2006)); see also 
Midwest Med. Sols., LLC v. Exactech U.S., Inc.,

95 F.4th 604, 607

 (8th Cir. 2024) (“The 
movant’s diligence in attempting to meet the case management order’s requirements is 
the ‘primary measure’ of good cause.”), reh’g denied, No. 22-2250,

2024 WL 1561617

 
(8th Cir. Apr. 11, 2024); Fed. R. Civ. P. 16(b), advisory committee’s note to 1983 
amendment (“[T]he court may modify the schedule on a showing of good cause if it 

cannot reasonably be met despite the diligence of the party seeking the extension.”).  
“[T]he ‘good cause’ standard [of Rule 16(b)] is an exacting one, for it demands a 
demonstration that the existing schedule cannot be reasonably met despite the diligence 
of the party seeking the extension.”  Scheidecker v. Arvig Enters.,

193 F.R.D. 630, 632

 
(D. Minn. 2000) (citation omitted).                                       

    While the prejudice to the nonmovant resulting from modification of the 
scheduling order may also be a relevant factor, generally, the Court will not consider 
prejudice if the movant has not been diligent in meeting the scheduling order’s deadlines.  
See Bradford v. DANA Corp.,

249 F.3d 807, 809

 (8th Cir. 2001) (concluding that there 
was “no need to explore beyond the first criterion, [diligence,] because the record clearly 

demonstrate[d] that Bradford made only minimal efforts to satisfy the [scheduling 
order’s] requirements”).  In short, Rule 16(b) focuses on “the diligence of the party 
seeking to modify a Scheduling Order, as opposed to the litany of unpersuasive excuses, 
inclusive or inadvertence and neglect, which commonly undergird an untimely Motion to 
Amend.”  Scheidecker,

193 F.R.D. at 632

n.1 (citations omitted).

With these standards in mind, the Court turns to Defendants’ Motion to Amend.
III. ANALYSIS
Defendants argue that the facts and procedural posture in this case support a
finding of good cause, as they diligently pursued written discovery and document
productions in this case, and diligently sought documents from Salesforce after Plaintiff
and Maggie “claimed—for the first time this spring—that messages sent through their

work accounts were not in their possession.” (Dkt. 147 at 8.) Defendants assert that
Plaintiff and Maggie only “stumbled upon this limitation” after Maggie testified about
her internal Salesforce complaint, which had not yet been produced in discovery. (Id. at
8-9.) According to Defendants, the documents they ultimately obtained from Salesforce
on July 11, 2024 represent good cause to amend the Scheduling Order, as those

documents revealed the extent of Plaintiff’s unlawful conduct, revealed inconsistencies in
her discovery responses, and confirmed that relevant and responsive information is
contained on Salesforce’s systems. (Id. at 9.) Defendants take the position that these
new claims are intertwined with the allegations and defenses already in the case, and will
serve to offset any relief Plaintiff may receive as part of her Complaint. (Dkt. 194 at 3-

4.) With respect to Rule 15, Defendants contend that none of the factors weighing
against amendment—undue delay, bad faith, dilatory motive, repeated failures to cure
deficiencies, undue prejudice to the non-moving party, or futility—are present here.
(Dkt. 147 at 8-11.)

Plaintiff counters that Defendants did not act diligently with respect to bringing
the present Motion to Amend, given that the deadline to amend pleadings was December
1, 2022. (Dkt. 153 at 12.) Plaintiff also claims that Defendants concede they knew about
the basis for part of their counterclaims due to an email she produced on November 21,
2022, as evidenced by their own counterclaims. (Id. at 12-13.) Plaintiff also emphasizes
that Defendants did not act with diligence in seeking the Salesforce records that

Defendants now assert give rise to the majority of the new proposed counterclaims. (Dkt.
198 at 3-5.) She argues that Defendants’ lack of diligence is shown by their failure to
seek Salesforce documents after Plaintiff responded to Defendants’ request for
communications referring to Rapp or Apex on November 14, 2022 by taking the position
in that response that such communications were not in her possession or control. (Id. at

1-2 (citing Dkt. 45-5 (Plaintiff’s Responses to RFP Set I)); see id. at 3-4.) Plaintiff
argues that Defendants’ lack of diligence is further demonstrated by their failure to move
to compel Plaintiff or Maggie to produce communications sent using their Salesforce
email even though they moved to compel other Salesforce information (Plaintiff’s
personnel file) on March 15, 2023. (Dkt. 198 at 2.) Plaintiff further relies on the fact that

Defendants waited over two years to seek the information via subpoena from Salesforce.
(Dkt. 198 at 3.) Plaintiff also argues that Defendants’ explanation that Maggie’s
interview notes led to the Second Subpoena lacks credence, as there is no evidence in
these notes that Plaintiff asked her sister to make a complaint,5 and there is no link
between the interview notes and the Second Subpoena. (Id. at 4.) Plaintiff also refers to

the prejudice of having to add new claims when her employment claims are before the
Court on dispositive motions and close to trial. (Dkt. 153 at 16.) In addition, Plaintiff
argues that the request for an extension of the discovery deadline fails to meet the good
cause requirement of Rule 16 and procedural requirements of Local Rule 16.3(b). (Id. at
27-35.)
With respect to Rule 15, Plaintiff argues that the new counterclaims should not be

added due to Defendants’ undue delay in seeking to bring them, the prejudice the new
claims would cause, and on the basis that are prompted by Defendants’ bad faith or
dilatory motives. (Id. at 17-26.)
A. Rule 16 Analysis - Proposed Breach of Contract Counterclaims Involving
Plaintiff’s Alleged Conduct While Employed at Apex

The Court concludes that there is no good cause under Rule 16 to allow
Defendants to amend the scheduling order to permit them to amend their Answer and
assert a counterclaim for breach of contract alleging that Kutz violated the confidentiality
provisions of the Confidentiality and Inventions Agreement (“Agreement”) she had with
Apex. This proposed counterclaim alleges that Plaintiff breached that Agreement by,
among other things: (1) forwarding confidential information outside of Apex IT,

5 The Court notes that the proposed counterclaim does allege that based on “[u]pon
information and belief, Kutz encouraged Maggie Kutz to make these complaints to
Salesforce.” (Dkt. 148-2 ¶ 41.). There is no categorical prohibition against a claim that
rests on allegations pleaded on information and belief. See Cole v. Does,

571 F. Supp. 3d 1033

, 1040 (D. Minn. 2021).
including to a competitor; [and] (2) sharing competitive information with her sister, who
was competing for the same business at Salesforce . . . .” (Dkt. 148-2, Counterclaims

¶ 71.) The Court finds no good cause because Defendants did not act diligently in
asserting this claim when they first learned of the alleged breaches. Indeed, Defendants
concede in the proposed counterclaim they possessed the information regarding these
breaches earlier in discovery:
58. Earlier discovery revealed that, while still an Apex employee, Kutz
forwarded highly sensitive spreadsheets containing tens of thousands of lines
of competitive sales information to a friend of hers who works for a
competitor. This revelation is what lead to Apex IT’s “after acquired
evidence” defense.

59. Additionally, the Kutz sisters exchanged confidential, competitive
information when Kutz was employed by Apex IT and Maggie Kutz was
employed by Salesforce. Salesforce was pitching a project and Apex IT was
assisting another software vendor with the same pitch. After the customer
made a decision to proceed with Salesforce, Maggie Kutz shared that
information with Kutz (in violation of her confidentiality obligations), and
then Kutz informed the Apex IT software vendor (in violation of her
confidentiality obligations). The breach of confidentiality made it back to the
customer, which resulted in an embarrassing situation for Apex IT. It also
resulted in Apex IT being excluded from bidding on the Salesforce work, and
Rapp having to apologize to the Chief Information Officer of the customer.

60. While the two prior discoveries were alarming to say the least, Apex
IT declined to file a counterclaim earlier since it appeared that the
conduct was isolated and damages were less quantifiable.

(Dkt. 148-2, proposed counterclaims ¶¶ 58-60) (emphases added).)
Indeed, Defendants learned about these potential claims as early as November
2022. (See Dkt. 153 at 5 (citing Dkt. 148-2, proposed counterclaim ¶ 58).) Yet, they
inexplicably waited approximately a year and eight months to add the claims, even
though—in their own words—Kutz’s actions “were alarming to the say the least.”
Defendants had this information in November 2022, before filing their initial Answer in
March 2023. (Dkt. 41.) It is true that the deadline to amend the pleadings had passed by

that time. (Dkt. 28 at 4.) But Defendants’ decision to wait until July 2024 to assert a
counterclaim for breach of the Agreement, and their decision not to include that
counterclaim in their initial Answer—when they possessed much of the information
needed to support such a counterclaim—weighs against a finding of good cause. See
Dolphin Kickboxing Co. v. FranChoice, Inc., No. 19-CV-1477 (MJD/ECW),

2020 WL 12849103

, at *10 (D. Minn. Nov. 25, 2020) (“In sum, while some evidence may have 

been available after the January 18, 2020 cut-off for motions to amend, the key evidence 
on which Plaintiffs rely was available months before the motion to amend deadline 
expired.  Consequently, the failure of Plaintiffs to move to amend for more than half a 
year (or to seek an extension of time to amend) demonstrates a lack of diligence 
incompatible with good cause under Rule 16.”); Moldex Metric, Inc. v. 3M Co., No. 14-

cv-1821 (JNE/FLN),

2016 WL 845264

, at *2 (D. Minn. Mar. 4, 2016) (“Although 
documents were produced and depositions took place after July 1, a substantial portion of 
the evidence on which Moldex Metric relied to support its second motion was available 
to it months before July 1 . . . . Its failure to [amend before July 1] do so reveals a lack of 
diligence that is incompatible with a finding of good cause.”).           

    Defendants took the position at the hearing and in their proposed counterclaims 
that they failed to bring the claims earlier because it “appeared that the conduct was 
isolated and damages were less quantifiable.”  (Dkt. 148-1 ¶ 60.)  This does not appear to 
be a statement that Defendants did not believe they had a Rule 11 basis for the proposed 
counterclaim when they filed their answer, but instead more of a statement that they did 
not think it was worth it to bring a counterclaim.  If it is the first, this rings hollow since 

Defendants were willing, for the purposes of Rule 11, to at least assert an after-acquired 
affirmative defense as part of their Answer based on the information they did possess.  
(Dkt. 41 at 30.)  Moreover, Defendants cannot rely on the requirements of Rule 8, Rule 
11, or Rule 12 to manufacture good cause under Rule 16 to allow them to add the claim 
now.  “If that was the case, then everyone would wait to bring the majority of their claims 
after discovery.”  Jamie C. Andrews, v. Fairview Health Servs., No. 21-cv-1449 

(ECT/ECW),

2022 WL 542427

, at *8 (D. Minn. Feb. 23, 2022) (“While the Court 
appreciates Plaintiff’s desire to have strong evidence in her possession before bringing a 
cause of action, that is not what Rule 8, Rule 11, or Rule 12 requires, nor does that desire 
equate to good cause under Rule 16 to allow her to add the claim now.”) (citations 
omitted); see also Schmidt Printing, Inc. v. Pitney Bowes, Inc., No. 10-1038 (JNE/TNL),

2011 WL 13262110

, at *6 (D. Minn. Aug. 29, 2011) (“In support of its motion, Schmidt 
Printing contends that it did not move earlier because of the requirements of Fed. R. Civ. 
P. 9(b) and 11.  This argument is unpersuasive because the obligations under Fed. R. Civ. 
P. 9(b) and 11 do not operate independently of Fed. R. Civ. P. 16.  Rules 9(b), 11, and 16 
present hurdles for all parties.  Thus, the burdens of Fed. R. Civ. P. 9(b) and 11 do not 

create “good cause” under Fed. R. Civ. P. 16.”).  Further, Defendants could have sought 
an extension of the deadline to amend the pleadings in March 2023 based on the 
information they did have as of November 2022.  They did not.             
    If it is the second—that Defendants did not think it was worth it in March 2023 to 
bring a counterclaim for breach of the Agreement—the Court finds that Defendants’ 

tactical decision to wait (and not seek an extension of the deadline to amend the 
pleadings) does not constitute good cause to amend the scheduling order to permit 
Defendants to add the counterclaims at this time.  The Motion to Amend is denied as to 
the proposed breach of contract counterclaims involving Plaintiff’s alleged conduct while 
employed at Apex.  See Morrison Enter., LLC v. Dravo Corp.,

638 F.3d 594, 610-11

 (8th 
Cir. 2011) (affirming district court’s denial of motion for leave to amend on ground that a 

tactical choice not to pursue a claim earlier did not show diligence); see also Aviva 
Sports, Inc. v. Fingerhut Direct Mktg., Inc., No. 09-cv-1091 (JNE/JSM),

2010 WL 4193076

, at *7 (D. Minn. Oct. 7, 2010) (“A strategic decision at the beginning of the case
to not allege a MUTPA claim, because Aviva did not believe it had a basis for punitive
damages at that time, does not constitute good cause for seeking the amendment now.”).

B. Rule 16 Analysis - Proposed Breach of Contract Counterclaims Involving
Information Defendants Say They Learned from the Salesforce Subpoenas

The Court turns to the proposed counterclaims to the extent they are based on
allegations that Plaintiff shared competitive and confidential information to Salesforce
and customers about Apex in an attempt to cause Apex to lose business opportunities,
which includes the proposed counterclaims for breach of contract, tortious interference
with prospective business relations, and defamation. (See Dkt. 148-2, proposed
counterclaims ¶¶ 66-85.) The gravamen of Defendants’ good cause for amending the
scheduling order to allow them to amend their Answer to add such claims is that
Defendants only learned of the information supporting these claims through the 81 pages
of documents produced by Salesforce on July 11, 2024. However, this argument requires

the Court to ignore that Defendants served the subpoena that led to the documents at
issue on Salesforce close to two years after discovery began, and on the eve of dispositive
motion practice.
As set forth above, the June 27, 2024 subpoena to Salesforce sought the following:
Custodians: Employees Allison Kutz & Margaret (Maggie) Kutz Search
Parameters: All emails or messages sent/received on any platform (Teams,
Slack, Skype, Google Chat, etc) containing “Apex” or “Rapp” from 9/1/21
to present. Produce the full conversation for each search hit.

(Dkt. 154-2 at 2.)
By way of comparison, Defendants’ October 14, 2022 RFP Set I to Plaintiff also
sought the following in Request No. 18: “Your communications regarding or referring to
Apex or Rapp following your separation of employment, including with any Apex
business partner such as Oracle or Salesforce.” (Dkt. 154 ¶ 18.) At least as to Plaintiff,
the documents sought from her directly in 2022 are the essentially the same as sought
directly from Salesforce in 2024.6 Defendants also knew as of January 2023, that
Plaintiff would only produce responsive documents “in her possession and/or control.”
(Id.) Plaintiff’s counsel also represented that she objected to the production of Salesforce

6 The Court also notes that Defendants subpoenaed documents from Maggie on
October 18, 2022. (Dkt. 154 ¶ 7.) On January 6, 2023, counsel engaged in a meet and
confer regarding Maggie’s responses, part of which included disputes regarding the
request for all “correspondence with anyone regarding or referring to Allison Kutz,”
which Maggie objected to as being not discoverable as involving her work
communications, and only asserting that she was producing discovery in her custody and
control. (Dkt. 51-3 at 6-7.) Defendants never moved to compel as to Maggie.
documents. Defendants’ March 2023 Motion to Compel did not seek an order requiring
Plaintiff to produce her Salesforce documents on the grounds that Plaintiff said she did

have possession or control of those emails. (Dkt. 43.) Defendants also did not issue a
subpoena to Salesforce at that time. Instead, as Defendants’ counsel conceded at the
hearing on the instant Motion, the March 2023 Motion to Compel only sought Plaintiff’s
Salesforce personnel record that was responsive to Request No. 26. (See Dkt. 43, Dkt.
51-4; Dkt. 154 ¶¶ 16-19.) Given that Defendants now argue that there is authority in this
District that an employee does have authority over their communications at their

employer (Dkt. 194 at 3 n.1), Defendants’ failure to seek production of the Salesforce
emails in March 2023 does not comport with diligence. See Adams v. Citimortgage, Inc.,
No. 12-cv-11 (SRN/JSM),

2013 WL 12145855

, at *2 (D. Minn. Dec. 9, 2013) (citation 
omitted) (“Once defendant received no response to its discovery, it was incumbent upon 
it to take appropriate steps to protect its interests and bring a motion to compel when 

responses were not forthcoming.”); Fair Isaac Corp. v. Experian Info. Sols, Inc. No. 06-
cv-4112 (ADM/JSM),

2009 WL 10677528

, at *14 (D. Minn. July 10, 2009) (“[W]hile it
is true that Experian had represented on November 18, 2008 that it would start producing
Customer Care emails pursuant to the sampling protocol on December 1 and finish the
production by December 15, 2008, Fair Isaac never responded to this proposed schedule

or addressed the fact that no emails were produced by December 15, until more than a
month later, and once more, after the deadline for this Court to hear non-dispositive
motions had expired. In short, Experian clearly had broken its end of the bargain when it
failed [to] produce any Customer Care emails by December 1, 2008; yet Fair Isaac failed
to do anything about it until two weeks after the non-dispositive motion deadline. This
lack of action by Fair Isaac may be careless, inadvertent or due to other pressing matters,

but it does not amount to the diligence required to establish good cause.”) (string citation
omitted).
Further, Defendants could have subpoenaed Salesforce for the emails almost a
year before they did. Defendants take the position that they only learned about the
possibility of relevant Salesforce communications due to Maggie’s deposition in
December 2023, leading to the January 2024 and June 2024 subpoenas to Salesforce and

the documents that they now claim give rise to their proposed counterclaims. (Dkt. 147
at 4-5.) The assertion that Defendants only learned about the possibility of the relevancy
of Salesforce communications involving Maggie and Plaintiff in December 2023 is
contradicted by Defendants’ Request No. 18, served on October 14, 2022, seeking
communications regarding or referring to Apex or Rapp, including with any Apex

business partner such as Salesforce. (Dkt. 154 ¶ 18.) It is further contradicted by
Defendants’ October 18, 2022 subpoena to Maggie seeking “correspondence with anyone
regarding or referring to Allison Kutz.” (Dkt. 51-3 at 6-7; Dkt. 154 ¶ 7.) The Court is
not persuaded that Defendants did not know until Maggie’s depositions that Maggie’s
and Plaintiff’s communications, including with each other and including those sent using

their Salesforce email accounts, could contain relevant information. The Court cannot
find that Defendants’ failure to pursue information they originally sought in October
2022 amounts to diligence.
Moreover, the Defendants admitted at the hearing on the instant Motion that they
chose a more narrowly tailored subpoena in January 2024 (instead of the broader

language of information sought in the June 2024 subpoena to Salesforce) to avoid a
possible challenge from Salesforce. Again, this tactical decision it not consistent with
diligence given the procedural posture of the case as of January 2024—especially where
the Court had not authorized new document discovery at that time outside of a few
exceptions.
In sum, the failure to take timely action overall in terms of obtaining documents

and information sought as early as October 2022, and the delay in bringing any motion to
amend the counterclaims—indeed, waiting until the eve of dispositive motion practice—
amounts to a tactical decision that turned out poorly or carelessness or inadvertence at
best. “It hardly bears mentioning . . . that carelessness is not compatible with a finding of
diligence and offers no reason for a grant for relief.” E.E.O.C. v. Hibbing Taconite Co.,

266 F.R.D. 260, 265

 (D. Minn. 2009) (quotation marks and citation omitted); see also 
C.H. Robinson Co. v. Zurich Am. Ins. Co., No. 02-cv-4794 (PAM/RLE),

2004 WL 1765320

 at *1 (D. Minn. Aug. 05, 2004) (“Carelessness does not excuse dilatoriness and 
‘offers no reason for a grant of relief.’”) (quoting N. Star Mut. Ins. Co. v. Zurich Ins. Co.,

269 F. Supp. 2d 1140, 1144

 (D. Minn. 2003)); Rosati v. Cleveland-Cliffs, Inc.,

259 F. Supp. 2d 861, 875

 (D. Minn. 2003) (“Carelessness is not compatible with a finding of 
diligence and offers no reason for a grant of relief.”) (cleaned up).  The Court denies the 
Motion because Defendants have not shown the good cause required to amend the 
scheduling order to permit the addition of counterclaims based on allegations that 
Plaintiff shared competitive and confidential information to Salesforce and customers 
about Apex in an attempt to cause Apex to lose business opportunities, including the 

proposed counterclaims for breach of contract, tortious interference with prospective 
business relations, and defamation.                                       
    For all of these reasons, the Court denies the Motion because Defendants have not 
shown the good cause required under Rule 16 to amend the scheduling order to permit 
their proposed late addition of counterclaims to their Answer.  The Court therefore does 
not reach whether amendment should be permitted under Rule 15.            

C.   Extension of Discovery Deadlines                                     
    Because Defendants have not met their burden to show good cause to amend the 
scheduling order to permit their proposed amendment of the Answer to add  
counterclaims, the request for the additional time for discovery based on the proposed 
new claims is also denied.                                                

                         IV.  ORDER                                      
    Based on the files, records, and proceedings herein, IT IS ORDERED THAT: 
Defendants’ Motion to Amend Answer to Plead Counterclaims and Extend the Discovery 
Deadline (Dkt. 145) is DENIED.                                            


Date: December 6, 2024         s/ Elizabeth Cowan Wright                  
                              ELIZABETH COWAN WRIGHT                     
                              United States Magistrate Judge