Clark v. Hill et al
MEMORANDUM OPINION AND ORDER DENYING 123 MOTION for Leave to File 2nd Amended Complaint. Signed by Judge Virginia Emerson Hopkins on 12/11/2013. (JLC)
2013 Dec-11 AM 11:07
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DWIGHT A. CLARK,
BOBBIE N. HILL, LARRY GAGE
and JOSHUA D. RAND, et al.,
) Case No.: 2:12-CV-239-VEH
MEMORANDUM OPINION AND ORDER
This lawsuit, initiated in the Circuit Court of Jefferson County, Alabama, on
December 13, 2011 (Doc. 1 ¶ 1), arises out of “a dispute over the ownership of certain
funds maintained in a certain bank account following the maturity of a certificate of
deposit and a subsequent interpleader action.” (Doc. 1 ¶ 2). The three plaintiffs in
this action are Dwight A. Clark, William Randy Clark, and Theresa Michele Clark.
Defendants Bobbie N. Hill (“Mr. Hill”) and Larry Gage (“Mr. Gage”) removed the
action to this court on January 23, 2012, on the basis of diversity jurisdiction. (Id. ¶
10). Two other defendants in the case are Joshua Rand (“Mr. Rand”) and Kevin J.
Tallant (“Mr. Tallant”), in his capacity as the temporary administrator of the estate
of William H. Clark.
Plaintiffs’ amended pleading (Doc. 27) contains twelve counts: count I is for
unlawful deprivation of personalty asserted by Mr. Clark only against Mr. Hill, Mr.
Gage, and Mr. Rand; count II is for wanton deprivation of property asserted by Mr.
Clark only against Mr. Hill, Mr. Gage, and Mr. Rand; count III is for conversion
asserted by Mr. Clark only against Mr. Hill, Mr. Gage, and Mr. Rand; count IV is for
wanton conversion asserted by Mr. Clark only against Mr. Hill, Mr. Gage, and Mr.
Rand; count V is for tortious interference with contract asserted by Mr. Clark only
against Mr. Hill, Mr. Gage, and Mr. Rand; count VI is for wanton interference with
contract asserted by Mr. Clark only against Mr. Hill, Mr. Gage, and Mr. Rand; count
VII is for tortious interference with expectancy asserted by Mr. Clark only against
Mr. Hill, Mr. Gage, and Mr. Rand; count VIII is for wantonness interference with
expectancy asserted by Mr. Clark only against Mr. Hill, Mr. Gage, and Mr. Rand;
count IX is for negligence asserted by Mr. Clark only against Mr. Hill, Mr. Gage, and
Mr. Rand; count X is for wantonness asserted by Mr. Clark only against Mr. Hill, Mr.
Gage, and Mr. Rand; count XI is for breach of contract/constructive trust asserted by
Mr. Clark, Keith Clark, Randy Clark, and Michelle Clark against Mr. Hill and Mr.
Gage; and count XII is for a declaratory judgment asserted by Mr. Clark, Keith Clark,
Randy Clark, and Michelle Clark against Mr. Tallant. (Doc. 27 at 12-47).
Pending before the court is a Second Motion for Leave To Amend Complaint
(Doc. 123) (“Second Motion for Leave”) filed by Plaintiff Dwight Clark on
September 3, 2013.1 The Second Motion for Leave has been fully briefed (Docs. 124,
125) and for the reasons explained below is DENIED.
Plaintiff Dwight Clark filed the Second Motion for Leave nearly 16 months
after the elapse of the deadline to amend pleadings which, under the applicable
scheduling order, ran on May 15, 2012. (Doc. 14 at 2-3 (“Plaintiff may amend
pleadings and/or join additional parties, in accordance with Fed. R. Civ. P. 15, until
May 15, 2012.”)). Therefore, two standards apply to his amendment request. See,
e.g., Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (“However,
because Sosa’s motion to amend was filed after the scheduling order’s deadline, she
must first demonstrate good cause under Rule 16(b) before we will consider whether
By a separate memorandum opinion and order, the court addresses the seven other pending
motions filed by the parties: (1) Motion To Prohibit Expert From Testifying and To Prohibit Use
of Expert Report (Doc. 70) (“Plaintiffs' Motion To Prohibit Expert”) filed by Plaintiffs on March 22,
2013; (2) Motion for Summary Judgment (Doc. 78) (“Hill and Gage’s Rule 56 Motion”) filed by Mr.
Hill and Mr. Gage on May 1, 2013; (3) Motion for Summary Judgment (Doc. 82) (“Rand’s Rule 56
Motion”) filed by Mr. Rand on May 1, 2013; (4) Motion for Partial Summary Judgment (Doc. 87)
(“Plaintiffs’ Partial Rule 56 Motion”) filed by Plaintiffs on May 1, 2013; (5) Motion To Strike (Doc.
104) (“Hill and Gage’s Strike Motion”) filed by Mr. Hill and Mr. Gage on July 1, 2013; (6) Motion
To Withdraw Footnote Contained in His Opposition to Motion To Prohibit Expert Testimony (Doc.
110) (“Rand’s Motion To Withdraw Footnote”) filed by Mr. Rand on July 9, 2013; and (7) Second
Motion To Strike (Doc. 115) (“Hill and Gage’s Second Strike Motion”) filed by Mr. Hill and Mr.
Gage on July 29, 2013.
amendment is proper under Rule 15(a).
Under Rule 16(b)(4), a scheduling order “may be modified only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
Rule 15(a) governs amendments sought before trial and in relevant part
(2) Other Amendments. In all other cases, 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).
Obtaining leave under Rule 15(a)(2) is not without restraints. Leave should be
denied “in the presence of countervailing factors such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of
the allowance of the amendment, futility of the amendment, etc.” McKinley v.
Kaplan, 177 F.3d 1253, 1258 (11th Cir. 1999) (quoting Foman v. Davis, 371 U.S.
178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)); see Hall v. United Ins. Co. of
America, 367 F.3d 1255, 1263-64 (11th Cir. 2004) (“Under Foman, however, a
district court may properly deny leave to amend the complaint under Rule 15(a) when
such amendment would be futile.”).
The Second Motion for Leave seeks to add claims for the unauthorized practice
of law against Mr. Rand. As proposed by Plaintiff Dwight Clark, count XIII would
be a claim for the unauthorized practice of law and count XIV would be for the
wanton unauthorized practice of law. (Doc. 123-2 ¶¶ 78-87).
Assuming without deciding that Plaintiff Dwight Clark is able to meet Rule
16(b)’s good cause standard even though he waited nearly 8 months after Mr. Rand’s
deposition (which occurred on January 10, 2013) (Doc. 123 ¶ 4) to file his Second
Motion for Leave, the court, in its discretion, nonetheless denies the request to amend
on the grounds of undue delay and undue prejudice under Rule 15(a).
More particularly, as discovery has closed and the deadline for filing
dispositive motions has passed, the court concludes that allowing such a late addition
of this claim2 would be unfairly prejudicial to Mr. Rand. See, e.g., Hinson v. Clinch
County, Georgia Bd. of Educ., 231 F.3d 821, 826 (11th Cir. 2000) (affirming district
court’s decision to deny motion to amend complaint filed after “discovery was closed
While Alabama law does recognize a private cause of action for the unauthorized practice
of law, see, e.g., Fogarty v. Parker, Poe, Adams and Bernstein, L.L.P., 961 So. 2d 784, 791 (Ala.
2006) (“[T]he Armstrong decision, which recognizes a private cause of action for the unauthorized
practice of law, is consistent with Alabama caselaw that recognizes a private cause of action for a
criminal act that results in injury.”), the ability of an alleged injured third party, such as Plaintiff
Dwight Clark, to assert such a claim under the circumstances of this case is far from straightforward.
and dispositive motions had been filed”); Reese v. Herbert, 527 F.3d 1253, 1263
(11th Cir. 2008) (“Because the period for discovery had expired, granting the motion
would have caused the defendants undue prejudice, as they would not have been able
to conduct further discovery with respect to the claim the proposed amendment
asserted.” (citing Lowe’s Home Ctrs., Inc. v. Olin Corp., 313 F.3d 1307, 1315 (11th
Additionally, the court finds that Plaintiff Dwight Clark will not be unduly
prejudiced by disallowing his proposed claims because they are subsumed by his
count for negligence which has been pled against Mr. Rand and which claim will be
tried to a jury. Accordingly, “in the exercise of its inherent power to manage the
conduct of the litigation before it,” Reese, 527 F.3d at 1263, the Second Motion for
Leave is DENIED.
Therefore, as analyzed above, the Second Motion for Leave is DENIED.
DONE and ORDERED this the 11th day of December, 2013.
VIRGINIA EMERSON HOPKINS
United States District Judge
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