Discovery & Amending the Complaint

Nevada’s Court of Appeals makes the blog for the first time! On June 11 it published Nutton v. Sunset Station, Inc., 131 Nev. Adv. Op. 34 (2015). It concerned a slip and fall at a bowling alley allegedly caused excessive lane oil. Except Plaintiff’s own expert conceded this was not the case. If at first you don’t succeed…

Nutton sought to amend his theory of liability [3 weeks after the deadline to amend pleadings] to instead plead that the fall was caused by his street shoes and Sunset Station had negligently failed to ensure he wore bowling shoes while he bowled. The proposed amended complaint asserted that Sunset Station’s own policies required bowlers to wear bowling shoes at all times while bowling, but employees and agents of Sunset Station breached their duty by failing to enforce the policy and permitting Nutton to bowl without them.

The district court denied that request and instead granted summary judgment because Nutton’s expert conceded Sunset Station had not breached a standard of care. Nutton appealed and argued the district court abused its discretion by not permitting him to amend. After all, leave to amend is to be freely given, right? Not so much. The district court was affirmed.

[W]hen a motion seeking leave to amend a pleading is filed after the expiration of the deadline for filing such motions, the district court must first determine whether “good cause” exists for missing the deadline under NRCP 16(b) before the court can consider the merits of the motion under the standards of NRCP 15(a).

Nutton gave no good cause why he could not have timely sought to amend. The facts at issue were not new, he just had not timely sought to amend.

This standard is nearly identical to the standard used to evaluate untimely motions to extend and other discovery matters. Nutton, however, now gives teeth to the discovery scheduling deadline to seek leave to amend or add parties. It is a strong hint that, if your client believes additional claims may be warranted or that parties may need to be joined, diligently push forward on a discovery plan to vet those ideas before the clock runs out.