Billingsley v. Orr

Filing 39

MEMORANDUM OPINION AND ORDER DENYING 36 Second MOTION for Leave to File Amended Complaint. Signed by Judge Virginia Emerson Hopkins on 4/7/2015. (JLC)

FILED
2015 Apr-07 AM 10:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
KRISTOPHER BILLINGSLEY,
Plaintiff,
v.
WILLIE ORR,
Defendant.

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CIVIL ACTION NO.:
1:13-CV-1337-VEH

MEMORANDUM OPINION AND ORDER
I.

Introduction
Pending before the court is Plaintiff Kristopher Billingsley’s (“Mr.

Billingsley”) Amended Motion for Leave (Doc. 36) (the “Second Motion”) filed on
March 19, 2015.1 The Second Motion seeks to reopen the Scheduling Order (Doc. 14)
filed on December 31, 2013, and to permit Mr. Billingsley to amend his complaint in
light of the summary judgment ruling entered by this court on January 13, 2015, that
was partially adverse to him. (Doc. 26). Defendant opposed the Second Motion on
March 25, 2015. (Doc. 37).

The court denied without prejudice Mr. Billingsley’s initial motion for leave
to amend because he had failed to comply with the requirements of the court’s
Uniform Initial Order. (Doc. 35).
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For the reasons explained below, the Second Motion is DENIED.2
II.

Standards
A.

Rule 16(b)(4)

Under Rule 16(b)(4), “[a] schedule may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Further, Rule 16’s good cause
standard “precludes modification unless the schedule could not ‘be met despite the
diligence of the party seeking the extension.’” Sosa v. Airprint Systems, Inc., 133 F.3d
1417, 1418 (11th Cir. 1988) (quoting Fed. R. Civ. P. 16 advisory committee notes).
Finally, “[a] district court’s decision to enforce its pre-trial order will not be disturbed
on appeal absent an abuse of discretion.” Sosa, 133 F.3d at 1418 (Santiago v. Lykes
Bros. Steamship Co., 986 F.2d 423, 427 (11th Cir. 1993)).
B.

Rule 15(a)(2)

Rule 15(a)(2) provides: “[A] party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Whenever a party seeks to
amend a pleading past the Rule 16 deadline (such as here), that party “must first
demonstrate good cause under Rule 16(b) before [the district court] will consider
Due to the upcoming final pretrial conference scheduled for May 21, 2015
(Doc. 34) and the straightforward nature of this issue, the court elects not wait on the
expiration of Mr. Billingsley’s deadline to reply before deciding the Second Motion.
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whether amendment is proper under Rule 15(a).” Sosa, 133 F.3d at 1418 (emphasis
added).
III.

Analysis
In dismissing Count One of his complaint on summary judgment, this court

appropriately concluded that Mr. Billingsley had not pled an excessive force claim
independent from his unlawful arrest count. (Doc. 26 at 11-14). The court then
determined that no unconstitutional search and seizure had occurred or, alternatively,
that qualified immunity protected Defendant from any liability for such a claim. (Id.
at 14-19). As a result, neither an independent nor a dependent claim for excessive
force under federal law is a part of this case.
Upset with this ruling, Mr. Billingsley filed a Motion To Amend, Alter or
Vacate (Doc. 28) on January 23, 2015, insisting (and despite the inadequate
allegations contained in his pleading as expressly pointed out by the court in its
summary judgment ruling) that his “Complaint sufficiently included an excessive
force claim.” (Doc. 28 at 3). On March 9, 2015, the court denied Mr. Billingsley’s
Motion To Amend, Alter or Vacate, and explained to him that:
[I]t was incumbent upon Mr. Billingsley to seek leave to amend his
complaint and clarify that he was asserting a Fourth Amendment
excessive force claim entirely separate from his Fourth Amendment
illegal search and seizure claim asserted in Count One. To date, Mr.
Billingsley has not sought permission for such an amendment. Instead,
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he has ineffectively chosen to quibble over the court’s excessive force
analysis on summary judgment without regard to key underpinnings
behind the court’s ruling.
(Doc. 32 at 6).
Mr. Billingsley initiated this lawsuit on July 18, 2013 (Doc. 1) and his deadline
to amend under the Scheduling Order was March 3, 2014. (Doc. 14 at 2). Against this
procedural backdrop, Mr. Billingsley’s Second Motion seeks to rectify his Fourth
Amendment pleading error by reopening the Scheduling Order and obtaining leave
to add an independent claim of excessive force over (i) 18 months after he first filed
suit and (ii) 12 months after his deadline to amend has expired.
Undeterred by these expansive elapses in time, Mr. Billingsley maintains that
the record does not establish a lack of diligence on his part; yet, he offers no on-point
case authority to support his position. Instead, Mr. Billingsley cites to Young v. City
of Gulf Shores, No. 07-0810-WS-M, 2009 WL 321221 (S.D. Ala. 2009), in which the
good cause standard was not met by the plaintiff and then claims that his “case is
much different than Young” because he had a “good faith[] belie[f] that [his]
excessive force claim was properly pled and that Defendant was on notice of the
excessive force claim.” (Doc. 36 at 3).
Regardless of Mr. Billingsley’s efforts to distinguish his case from Young, the
binding decision of Oravec v. Sunny Isles Luxury Ventures, L.C., 257 F.3d 1218 (11th
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Cir. 2008) (cited by Defendant (Doc. 37 at 4)) controls the outcome here. In Oravec,
the Eleventh Circuit upheld the district court’s decision to deny the plaintiff’s request
to amend comparably filed over one year after the applicable deadline had passed and
only after that the court had voiced its view that certain of the plaintiff’s copyright
claims were jurisdictionally defective.
As the Eleventh Circuit explained why the district court in Oravec acted within
its discretion in denying the motion to amend:
We have recognized that Rule 16(a)’s good cause standard
“precludes modification [of the scheduling order] unless the schedule
cannot be met despite the diligence of the party seeking the extension.”
See Sosa, 133 F.3d at 1418 (internal quotation marks omitted); see also
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.
1992) (“If [a] party was not diligent, the [good cause] inquiry should
end.”). Here, Oravec did not show the requisite level of diligence in
pursuing his claims. He filed his motion to amend on July 12, 2006, over
twenty months after filing the original complaint, more than a year after
the expiration of the deadline for amending the pleadings, and only six
weeks before trial. Oravec argues that he lacked notice of the
jurisdictional concern regarding his PGS copyrights until the district
court indicated on July 7 that those claims could not be maintained.
However, the fact that Oravec or his counsel misunderstood the scope
of legal protection available for PGS works does not constitute good
cause. In any event, Oravec was aware of the defendants’ challenge to
his March 2004 Copyright claim since at least April 2006, when the
defendants filed their motion for summary judgment. He nonetheless
waited an additional three months to file additional copyright
registrations and to seek leave to amend. Under these circumstances, the
district court acted within its discretion in denying his motion.
527 F.3d at 1232 (emphasis added); see also Dilmar Oil Co., Inc. v. Federated Mut.
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Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997) (“Carelessness is not compatible with
a finding of diligence and offers no reason for a grant of relief.” (citing Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992))).
Akin to the plaintiff in Oravec, Mr. Billingsley attempts to justify his dilatory
amendment due to his misapprehension of Fourth Amendment law.
Had Plaintiff been aware that this Court or Defendant had an issue with
the pleadings or that an excessive force claim was not properly pled,
Plaintiff would have amended the original Complaint. However,
Plaintiff has just become aware of this pleading issue. Now that Plaintiff
is aware that the pleading of his excessive force claim is at issue,
Plaintiff respectfully requests that this Honorable Court permit Plaintiff
to file an Amended Complaint adding a specific excessive force claim
under Plaintiff’s Fourth Amendment claim.
(Doc. 36 at 6 (emphasis added)).
However, as Oravec underscores, counsel’s ignorance of the law is inconsistent
with diligence and carefulness and, thus, cannot constitute good cause under Rule
16(b)(4), especially when the case has proceeded way beyond the deadline to amend,
the court has decided summary judgment, and the lawsuit is set for trial (or, like here,
is trial ready and set for a final pretrial conference). At a minimum, in an effort to
show diligence, Mr. Billingsley should have immediately sought leave to amend his
complaint when he became aware of his pleading problem over 2 months ago, but
instead he chose to challenge this court’s summary judgment ruling on

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reconsideration by questioning the court’s allegedly misguided “emphasis on the
pleadings” (Doc. 28 at 3) and, regardless, asserting that his complaint sufficiently
“included an excessive force claim.” Id.
Mr. Billingsley also suggests that his Second Motion should be granted
because his misunderstanding of the law was sincere (see, e.g., Doc. 36 at 3
(“Plaintiff . . . in good faith believed that the excessive force claim was properly pled
. . . .”)) and Defendant cannot show any real prejudice if the amendment is allowed.
(See, e.g., Doc. 36 at 6 (“Defendant showed that he was on notice of an excessive
force claim through joint filings by Plaintiff and Defendant.”)). Taking as given the
absence of his bad faith as well as any resulting prejudice to Defendant, Mr.
Billingsley’s rationale, nonetheless, still misses the mark as “Rule 16(b) does not
focus on the bad faith of the movant, or the prejudice to the opposing party. Rather,
it focuses on the diligence of the party seeking leave to modify the scheduling order
to permit the proposed amendment.” Dilmar, 986 F. Supp. at 980 (emphasis added);
cf. Johnson, 975 F.2d at 609 (“Although the existence or degree of prejudice to the
party opposing the modification might supply additional reasons to deny a motion,
the focus of the inquiry is upon the moving party’s reasons for seeking
modification.”) (emphasis added).

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IV.

Conclusion
Thus, Mr. Billingsley has not met Rule 16(b)(4)’s diligence standard, and his

Second Motion is DENIED.3
DONE and ORDERED this 7th day of April, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

Because Mr. Billingsley has not demonstrated good cause, the court does not
consider the merits of his Second Motion’s contingent component under Rule
15(a)(2). Cf. Sosa, 133 F.3d at 1419 (“If we considered only Rule 15(a) without
regard to Rule 16(b), we would render scheduling orders meaningless and effectively
would read Rule 16(b) and its good cause requirement out of the Federal Rules of
Civil Procedure.”).
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