Murathoty v. EPL Inc

Filing 14

MEMORANDUM OPINION AND ORDER re 12 EPL's motion for leave to file a counterclaim is DENIED. The hearing set for April 14, 2016, is CANCELLED. Signed by Judge William M Acker, Jr on 4/11/16. (SAC )

FILED
2016 Apr-11 PM 03:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SUNITHA MURATHOTY,

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Plaintiff,
v.
EPL, Inc.,
Defendant.

CIVIL ACTION NO.
2:15-cv-1015-WMA

MEMORANDUM OPINION AND ORDER
Before the court is the motion (Doc. 12) of defendant EPL,
Inc., for leave to file a counterclaim.1 EPL seeks to assert a
fraud claim against plaintiff Sunitha Murathoty, alleging that she
misrepresented her experience and background on her resume while
seeking employment with EPL and had a third party participate in a
phone interview on her behalf.
The

court

entered

a

scheduling

order

in

this

matter

on

September 9, 2015, which imposed a deadline on EPL to amend the
pleadings by December 31, 2015. EPL filed the present motion on
March 22, 2016, nearly three months after the deadline. This
deadline may be modified only on a showing of “good cause.” Fed. R.
Civ. P. 16(b)(4); see also Green Island Holdings, LLC v. British
Am. Isle of Venice (BVI), LTD., 521 F. App’x 798, 800 (11th Cir.
2013). “[T]he diligence of the party seeking leave to amend [is] a
factor in the good-cause analysis.” Id. A lack of diligence is

1

The court initially set the motion for a hearing on April
14, 2016. After consideration, however, the court finds a hearing
to be unnecessary.

demonstrated if “the information providing the basis for the
proposed amendment was available to the party before the deadline.”
Id.
EPL argues that it has demonstrated good cause for its late
motion because Murathoty was not deposed until March 3, 2016, and
the basis for the counterclaim was only learned by EPL’s attorney
after investigating Murathoty’s testimony. (Doc. 12 at 2). EPL’s
own submissions, however, belie that assertion. In its answer and
in

the

present

motion,

EPL

asserts

that

it

discovered

that

Murathoty misrepresented her qualifications on her resume while
investigating her EEOC charge. (Docs. 5 at 7, 12 at 5). The
information

necessary

to

support

the

counterclaim,

then,

was

plainly available to EPL before the expiration of the deadline to
amend the pleadings. See Green Island Holdings, 521 F. App’x at 800
(noting

that

affirmative

the

denied

defense

that

amendment
the

Answer

“bore
had

similarity
originally

to

the

included,

implying that the basis for the proposed affirmative defense should
have been available before the deadline for amended pleadings”).
That the phone interview issue may not have been discovered until
Murathoty’s deposition is of no consequence. Plaintiffs are not
typically

aware

of

all

facts

supporting

their

claims

until

discovery, but that does not preclude them from asserting claims
based on the known facts. Accordingly, EPL’s motion (Doc. 12) for
leave to file a counterclaim is DENIED.2 The hearing set for April

2

Additionally, the court is not certain that it would have
subject-matter jurisdiction over the counterclaim. “[A] federal
court cannot consider a permissive counterclaim unless the

14, 2016, is CANCELLED.
DONE this 11th day of April, 2016.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

counterclaimant asserts an independent jurisdictional basis.”
East-Bibb Twiggs Neighborhood Ass’n v. Macon Bibb Planning and
Zoning Comm’n, 888 F.2d 1576, 1578 (11th Cir. 1989). The proposed
counterclaim does not assert a federal question or invoke the
court’s diversity jurisdiction. Whether EPL’s claims “arise out
of a common nucleus of operative fact” with Murathoty’s claim of
employment discrimination and thus sufficiently invoke
supplemental jurisdiction under 28 U.S.C. § 1367 is very much an
open question. Upper Chattahoochee Riverkeeper Fund, Inc. v. City
of Atlanta, 701 F.3d 669, 678 (11th Cir. 2012).