Don Davis v. City of St. John

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2956
___________
Don Davis; Audrey Davis, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
City of St. John; Terry Milan, City *
Manager, personally; Jim Phillips, * [UNPUBLISHED]
Inspector; Robert Poteet, Inspector, *
*
Appellees. *
___________
Submitted: March 17, 2006
Filed: June 5, 2006
___________
Before ARNOLD and SMITH, Circuit Judges, and MAGNUSON,1 District Judge.
___________
PER CURIAM.
When Don and Audrey Davis sought leave to file a second amended complaint
in their suit under 42 U.S.C. § 1983 against the City of St. John and several city
employees, the district court2 denied it. The court then granted the defendants' motion
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, sitting by designation.
2
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
for summary judgment. Mr. and Ms. Davis appeal, contending that the court erred in
denying their motion to amend and in striking Mr. Davis's affidavit filed in opposition
to summary judgment. We affirm.
We review the district court's denial of a motion to amend for an abuse of
discretion. United States ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 555 (8th
Cir. 2006). After this action was filed, the district court conferred with counsel for the
parties and entered a pretrial scheduling order. See Fed. R. Civ. P. 16. The Davises
moved to amend their complaint over eight months after the order's deadline for the
amendment of pleadings. We have held that a district court may properly require that
good cause be shown for leave to file an amended pleading that is substantially out of
time under the court's Rule 16 pretrial scheduling order. Rainy Lake One Stop, Inc.
v. Marigold Foods (In Re: Milk Prods. Antitrust Litig.), 195 F.3d 430, 437 (8th Cir.
1999), cert. denied, 529 U.S. 1038 (2000). The primary measure of whether good
cause exists is the moving party's diligence in trying to meet the order's requirements.
Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001). Here, the plaintiffs have
not shown such diligence. Almost all of the information that the Davises sought to
add to their complaint had been in their possession well before the suit began, and yet
they did not seek its inclusion until after the parties had completed discovery and the
defendants had moved for summary judgment. We conclude that the district court did
not abuse its discretion in denying the motion to amend.
The plaintiffs also contend that the district court erred by granting the
defendants' motion to strike Mr. Davis's affidavit, rather than considering it when
ruling on the summary judgment motion. We again review the court's ruling for an
abuse of discretion. Davis v. U.S. Bancorp, 383 F.3d 761, 765 (8th Cir. 2004). In
construing the first amended complaint, the district court concluded that the only issue
at summary judgment was whether the defendants had violated the plaintiffs' equal-
protection rights by selectively enforcing the law. Mr. Davis said in his deposition
that he could not identify any other property owners whom the defendants had treated
-2-
differently from him. In his affidavit, however, he asserted that he was aware of such
individuals, though he did not name them. The affidavit directly contradicted
Mr. Davis's earlier testimony, and the plaintiffs made no attempt to explain this
discrepancy by filing a response to the motion to strike. We therefore conclude that
the district court was within its discretion in striking Mr. Davis's affidavit. See Dotson
v. Delta Consol. Indus., 251 F.3d 780, 781 (8th Cir. 2001).
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
-3-