Nekouee v. Captain D's, LLC (CONSENT)

Filing 25

ORDER denying 14 MOTION to Exclude Report and any Testimony or Evidence Concerning Alleged Regulatory Violations not in the Original Complaint; ORDER granting 16 First MOTION for Leave to Amend Complaint; further ORDERED that Nekouee shall file the amended complaint attached as an exhibit to his 16 motion on or before 8/13/2018. Signed by Honorable Judge Gray M. Borden on 8/10/2018. (alm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
FRED NEKOUEE,
Plaintiff,
v.
CAPTAIN D’S, LLC,
Defendant.

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CASE NO.: 2:18-cv-107-GMB
[WO]

ORDER
Pending before the court is the Motion to Exclude Report and Any Testimony or
Evidence Concerning Alleged Regulatory Violations not in the Original Complaint (Doc.
14) filed by Defendant Captain D’s, LLC (“Captain D’s”), and the First Motion for Leave
to Amend Complaint (Doc. 16) filed by Plaintiff Fred Nekouee. For the following reasons,
it is ORDERED that the defendant’s motion (Doc. 14) is DENIED, and the plaintiff’s
motion (Doc. 16) is GRANTED.
The parties’ dispute centers on an expert witness report submitted by Nekouee
which discusses five alleged violations of Americans with Disabilities Act (“ADA”)
regulations at the Captain D’s restaurant in Montgomery, Alabama. See Doc. 14. Captain
D’s asserts that Nekouee “seeks to add new regulatory violations via his expert report after
the deadline to amend his Complaint has passed.” Doc. 14 at 2. In response, Nekouee filed
a motion for leave to amend his complaint to include the five alterations at the restaurant
he argues violate the ADA. While Nekouee himself encountered the alterations on June
14, 2018, the expert witness was not able to identify the alleged violations until June 22,

2018. Doc. 16 at 1. According to Nekouee, the alterations were performed after he
commenced this lawsuit and, “[s]ince discovery is still ongoing, it would be a great
injustice to not allow [Nekouee] Leave to Amend his Complaint.” Doc. 16 at 2.
Rule 15 of the Federal Rules of Civil Procedure provides that courts “should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Captain D’s correctly points
out, however, that the deadline for amendments to pleadings as set forth in the Uniform
Scheduling Order expired on June 20, 2018. Doc. 13 at 2. Motions for leave to amend filed
after a scheduling order’s deadline to amend pleadings can only be granted upon a showing
of good cause under Federal Rule of Civil Procedure 16(b). See, e.g., Sosa v. Airprint Sys.,
Inc., 133 F.3d 1417, 1419 (11th Cir. 1998); see also Fed. R. Civ. P. 16(b)(4) (“A schedule
may be modified only for good cause and with the judge’s consent.”). Moreover, even
under Rule 15’s more liberal standard, courts need not permit amendment in the event of
undue delay, bad faith, or dilatory motive on the part of the plaintiff, where allowing
amendment would cause undue prejudice to the opposing party, or where the amendment
would be futile. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
Here, Nekouee has articulated good cause to justify the amendment. Specifically,
Nekouee asserts that he only discovered the alterations on June 14––just six days before
the expiration of the deadline to amend pleadings. And the fact that Nekouee’s expert
witness examined the alterations and issued his report just one week later, on June 22,
undermines any contention that Nekouee has unduly delayed proceedings or is acting with
a dilatory motive. Finally, any prejudice to Captain D’s is minimized by the fact that

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discovery in this matter is ongoing and the delay between the deadline to amend pleadings,
the expert witness report, and the motion for leave to amend is minimal.
Accordingly, it is ORDERED that Captain D’s motion in limine (Doc. 14) is
DENIED and Nekouee’s motion for leave to amend (Doc. 16) is GRANTED. It is further
ORDERED that Nekouee shall file the amended complaint attached as an exhibit to his
motion on or before August 13, 2018.
DONE this 10th day of August, 2018.

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