Peoplessouth Bank v. Farmer & Malone, P.A.

Filing 74

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
Georgia Banking
Corporation,
Plaintiff,
v.
FARMER & MALONE, P.A.,
an Alabama Legal
Professional Association,
Defendant.

PEOPLESSOUTH BANK, a Bank
Chartered in Georgia,
Plaintiff,
v.
ROBERT O. LISENBY, JR.,
an Individual, et al.,
Defendants.

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CIVIL ACTION NO.
1:11cv36-MHT
(WO)

CIVIL ACTION NO.
1:11cv176-MHT

OPINION AND ORDER
Plaintiff PeoplesSouth Bank (“PSB”) is pursuing this
lawsuit

against

defendant

Farmer

&

Malone

under

the

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.

For

the reasons that follow, that motion will be denied.

I.

BACKGROUND

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.
The issue
before the court relates only to the dispute between PSB
and Farmer & Malone.
2

setting July 15 as the deadline.

That order also gave

both parties 14 days to raise any objections to the dates
set within.

Neither party raised an objection.

On July 15, PSB moved to amend its complaint in the
consolidated cases.

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
to

amend

its

initial

complaint.

Farmer

&

Malone

objected, and this court held a telephone conference on
the matter on May 4.

3

II.

DISCUSSION

“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.”

Nobles v.

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).

“In

all other cases, a party may amend its pleading only with
the

opposing

leave.”

party’s

written

consent

Fed. R. Civ. P. 15(a)(2).

or

the

court’s

Rule 15 states that,

“The court should freely give leave when justice so
requires.”

Id.

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.
16(b)(3)(A).

Once such an order has been issued, the

4

“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.”

Id.

In this case, PSB’s

motion to amend was filed more than nine months after the
scheduling-order

deadline.

Thus,

the

court

must

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

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with the more forgiving Rule 15 standard.

As explained

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.
The

good-cause

standard

applicable

to

Rule

16

“precludes modification unless the schedule cannot be met
despite

the

extension.”
marks

and

diligence

of

the

party

seeking

the

Sosa, 133 F.3d at 1418 (internal quotation
footnote

omitted).

In

this

case,

the

scheduling order lays out one diligence requirement,
explaining

that,

circumstances,

absent

eleventh-hour

motions will be denied.
at § 15(B).

unforseen

and

extension

unavoidable
requests

and

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

6

months]

after

a

deadline

is

even

more

inexcusable,”

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
personnel.

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.
Moreover,

the

nature

of

the

proposed

amendments

counsels strongly against granting the motion.

During

the

freely

telephone

conference

on

this

matter,

PSB

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.

Instead, PSB

characterized the motion, as it did in its briefing to
this

court,

as

“merely”

providing

7

“more

specific

statements
Complaint.”
at 5.

of

the

general

claims

...

stated

in

the

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
trial.
The fundamental change to the complaint appears to
be,

not

the

increased

specificity

about

PSB’s

allegations, but rather the insertion of a new demand for
punitive damages.

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 &
Malone.

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.

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***
For

the

foregoing

reasons,

it

is

ORDERED

that

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