Peoplessouth Bank v. Farmer & Malone, P.A.
OPINION AND ORDER that plaintiff PeoplesSouth Bank's 70 motion for leave to amend its complaint is denied. Signed by Honorable Judge Myron H. Thompson on 5/8/2012. (cc, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
PEOPLESSOUTH BANK, a
FARMER & MALONE, P.A.,
an Alabama Legal
PEOPLESSOUTH BANK, a Bank
Chartered in Georgia,
ROBERT O. LISENBY, JR.,
an Individual, et al.,
CIVIL ACTION NO.
CIVIL ACTION NO.
OPINION AND ORDER
Plaintiff PeoplesSouth Bank (“PSB”) is pursuing this
Alabama Legal Services Liability Act, 1975 Ala. Code
§§ 6-5-570 to -581.*
Jurisdiction is proper pursuant to
28 U.S.C. § 1332 (diversity).
The lawsuit is now before
the court on PSB’s motion to amend its complaint.
the reasons that follow, that motion will be denied.
PSB filed its initial complaint in this case on
January 14, 2011.
It was later consolidated with a
related matter and the parties were given until June 10
to file a joint Rule 26(f) report, that is, a report
pursuant to Fed. R. Civ. P. 26(f).
On June 7, PSB
submitted that report, which requested that July 1 be set
as the “[f]inal date for plaintiff to amend pleadings
or join parties.”
Report of Parties’ Planning Meeting
(Doc. No. 25) at 5.
On June 14, this court entered a
scheduling order affording PSB two additional weeks and
*This case has been consolidated with a related
action brought by PSB against defendants Robert Lisenby,
Charles North, and Plum Creek Timberlands.
before the court relates only to the dispute between PSB
and Farmer & Malone.
setting July 15 as the deadline.
That order also gave
both parties 14 days to raise any objections to the dates
Neither party raised an objection.
On July 15, PSB moved to amend its complaint in the
That motion was granted three days
later and the parties have since been proceeding on PSB’s
first amended complaint as well as the initial complaint
in this case.
For more than nine months and without major incident,
the parties progressed toward the pretrial conference,
which is set for May 18, 2012, and the trial, which is
set for June 20, 2012.
However, on April 27--only three
weeks before the scheduled pretrial conference--PSB moved
objected, and this court held a telephone conference on
the matter on May 4.
“Both Rules 15 and 16 of the Federal Rules of Civil
Procedure facially guide the court’s decision whether to
allow an untimely amendment to the complaint.”
Rural Cmty. Ins. Servs., 303 F. Supp. 2d 1279, 1283 (M.D.
Ala. 2004) (Thompson, J.).
Rule 15 provides that, “A
party may amend its pleadings once as a matter of course
within: (A) 21 days after serving it, or (B) ... 21 days
after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.”
Fed. R. Civ. P. 15(a)(1).
all other cases, a party may amend its pleading only with
Fed. R. Civ. P. 15(a)(2).
Rule 15 states that,
“The court should freely give leave when justice so
Rule 16, on the other hand, requires the
district court to issue a scheduling order that “limit[s]
the time to ... amend the pleadings.” Fed. R. Civ. P.
Once such an order has been issued, the
“schedule may be modified only for good cause and with
the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
“The Eleventh Circuit Court of Appeals has found that
Rule 16's good-cause standard governs a party’s ability
to amend [its] complaint after the district court has
entered a scheduling order.”
Nobles, 303 F. Supp. 2d at
1283 (citing Sosa v. Airprint Sys., 133 F.3d 1417, 1418
n.2 (11th Cir. 1998)).
“It is only after the court
addresses whether the proposed amendment may be granted
under Rule 16 that the court is to determine whether it
is proper under Rule 15.”
In this case, PSB’s
motion to amend was filed more than nine months after the
determine whether it has shown good cause for this court
to modify that order.
PSB, both in its briefing and during this court’s
conference call on the matter, has failed even to attempt
to show “good cause” for its delay in filing this motion
to amend and has instead attempted to situate this case
with the more forgiving Rule 15 standard.
above, and as repeatedly affirmed in this circuit’s case
law, see Pugh v. Kobelco Constr. Mach. Am., LLC, 413 F.
App’x 134, 135 (11th Cir. 2011); Romero v. Drummond Co.,
552 F.3d 1303, 1319 (11th Cir. 2008), this court may
amend its scheduling order--a document to which both
parties agreed--only on a showing of good cause.
“precludes modification unless the schedule cannot be met
Sosa, 133 F.3d at 1418 (internal quotation
scheduling order lays out one diligence requirement,
motions will be denied.
at § 15(B).
Scheduling Order (Doc. No. 29)
“If foreseeable eleventh-hour extension
requests are inexcusable, a foreseeable extension request
that comes over two months [or, in this case, nine
McClaney v. Macon County Bd. of Educ., 2011 WL 9015, at
*3 (M.D. Ala. Jan. 3, 2011) (Thompson, J.), and that is
precisely what we have here.
PSB submits that this motion to amend was prompted by
information gathered while deposing key Farmer & Malone
But PSB knew full well that it would not be
deposing those witnesses until after the motion-to-amend
deadline, and it provides no reason why it failed to ask
the court to alter the deadline in order to accommodate
the parties’ discovery schedule.
counsels strongly against granting the motion.
admitted that no new evidence would be offered in this
case as a result of the amendment and that no new claims
against the defendants were being brought.
characterized the motion, as it did in its briefing to
Mot. for Leave to Amend Compl. (Doc. No. 70)
Were that the case, there would be no need to
amend at this late date and doing so would only assist
defense counsel in preparing for the quickly approaching
The fundamental change to the complaint appears to
allegations, but rather the insertion of a new demand for
There can be no doubt that such a
demand, had it been made in a timely fashion, would have
altered the strategic decisions Farmer & Malone made
while preparing for trial.
Its insertion into this case
at the eleventh hour would therefore prejudice Farmer &
Because PSB has offered this court no compelling
justification for its delay in filing its motion to amend
and because granting that motion would unduly prejudice
the defendant, the motion must be denied.
plaintiff PeoplesSouth Bank’s motion for leave to amend
its complaint (doc. no. 70) is denied.
DONE, this the 8th day of May, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?