This post does not come from the Reed Smith side of the blog.

Some of us here at the DDL Blog aren’t fans of typical New Year’s resolutions.  You never follow through, and you end up with an unused ab cruncher, a juicer of some sort that stays in the box, and a refrigerator full of rotting fruits.  We prefer atypical resolutions, ones that are more like affirmations.  For instance, I resolve to re-subscribe to Netflix.  I resolve to sleep even later on Sundays.  I resolve to deepen my relationship with chocolate.  I definitely resolve to continue to drink scotch.  Those are viable resolutions, ones that we’ll follow through on.  They remind us what we like to do and that we should do them.  No guilt.  You only feel good.  

Along these lines, we hope that some plaintiffs’ counsel have resolved this New Year to miss deadlines.  Courts don’t always enforce missed deadlines.  But when they do the defense usually benefits.  In Thorn v. Medtronic, Inc., 2015 U.S. App. LEXIS 22582 (6th Cir. Dec. 15, 2015), an infuse case, the trial court granted defendant’s motion to dismiss based, for the most part, on preemption.  Id. at *3.  The court entered judgment.  Mr. Thorn, the plaintiff, did not appeal.  

Thereafter, he sought leave to amend his complaint and add a fraud count.  Id.  He made the ordinary FRCP 15 amendment arguments—the defendant would not be prejudiced and an amended complaint would be in the interests of justice.  Id.

But he was making the wrong arguments.  And, regardless of what argument he made, he was too late.  Judgment had been entered, the deadline to appeal had passed, and the amendment standards of FRCP 15 no longer applied.  Instead, plaintiff had to reopen the judgment, or seek relief from it, under either FRCP 59 (New Trial, Altering or Amending a Judgment) or FRCP 60 (Relief from a Judgment or Order), and then seek to amend.  That wasn’t going to happen, and the district court spelled out the reasons:

Thorn could not proceed under Rule 15 because he must first seek to open or amend the judgment under Rule 59 or Rule 60; Thorn could not proceed under Rule 59 because he could not demonstrate an error of law, newly discovered evidence, or an intervening change in the law; Thorn could not proceed under Rule 60 because that rule does not allow the raising of new claims; and Thorn was not entitled to amendment because he could have included a fraud claim from the beginning.   

Id. at * 3-4.  By missing the deadline to file a Rule 15 motion for leave to amend, plaintiff put himself in a place from which he could not win.  Rule 15’s more lenient standard was replaced by the stringent standards of Rules 59 and 60, and the trial court denied plaintiff’s motion to amend.

Plaintiff did appeal this order.  But, while that appeal wasn’t too late, it was too little.  The Sixth Circuit applied an abuse of discretion standard and upheld the trial court’s judgment.  Id. at *4-6.  We don’t think, however, that the missed deadline mattered that much.  After finding preemption, the trial court was unlikely to allow the plaintiff leave to file a fraud claim.  

In any event, that case is over.  And, since we’re posting this in the late afternoon, we’ll be leaving soon.  But we won’t be going to the gym.  There is still a lot of chocolate left in the house.  Or maybe a nice scotch . . .