Shawnee Terminal Railroad Co., Inc. v. J.E. Estes Wood Co., Inc. et al
ORDER granting 127 Motion for Leave to File Third Amended Complaint. Signed by Judge Kristi K. DuBose on 9/12/2011. copies to parties. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SHAWNEE TERMINAL RAILROAD CO. )
INC., et al.,
J.E. ESTES WOOD CO., INC., et al.,
CIVIL ACTION NO. 09-00113-KD-N
This matter is before the Court on the Plaintiff=s “Motion for Leave to File Third Amended
Complaint” (Doc. 127) and Defendant A.A. Nettles, Sr.’s Objection (Doc. 133).
Motion to Amend
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, a party seeking to amend its
complaint after it has previously so amended, or after a responsive pleading has been filed, may do
so “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)). “However, where a party's motion to amend
is filed after the deadline for such motions, as delineated in the court's scheduling order, the party
must show good cause why leave to amend the complaint should be granted.” See, e.g., Sosa v.
Airprint Sys., 133 F.3d 1417, 1418 n. 2 (11th Cir. 1998) (providing that “when a motion to amend is
filed after a scheduling order deadline, Rule 16 is the proper guide for determining whether a party's
delay may be excused”); Anderson v. Board of School Comm’rs of Mobile Cty, 78 F. Supp. 2d
1266, 1268-1269 (S.D. Ala. 1999). Specifically, Rule 16(b)(4) provides that “[a] schedule may be
modified only for good cause and with the judge's consent.”
The Rule 16(b) deadline to amend pleadings expired on June 30, 2011. (Doc. 87 at 2).
Plaintiff filed its motion for leave to amend on August 31, 2011, approximately two (2) months after
the Court’s deadline.1 Therefore, Rule 16(b)(4)’s “good cause” requirement governs the Court’s
decision whether to grant Plaintiff’s motion for leave to amend.
Plaintiff seeks leave of court to file a third amended complaint to add a new claim for breach
of contract against Defendant A.A. Nettles, Sr., Properties, Ltd. (“Nettles”). As grounds, Plaintiff
states that while Defendant Nettles produced a 1975 lease between Louisville and Nashville
Railroad Company and individual Albert A. Nettles, Sr. in response to its discovery requests,2
Plaintiff only realized the existence of a breach of contract claim against Nettles -- based on this
lease -- for the first time during the August 9, 2011 deposition of Nettles’ corporate representative.
Specifically, Plaintiff asserts that the deposition testimony revealed that: 1) Nettles is a limited
partnership formed in 1988 comprised of family members; 2) Albert A. Nettles, Sr., died in 1990; 3)
Nettles continued to lease the area around Bridge 38 since Mr. Nettles died while making payments
to Alabama Railroad Co., Inc. and Plaintiff; and 4) Nettles has done nothing to keep the leased area
from being a fire hazard. (Doc. 127 at 2).
Defendant Nettles asserts, in response, that Plaintiff has failed to demonstrate “good cause”
under Rule 16(b), and moreover, cites as its only reason for the delay in filing “that it could not have
known about the lease prior to the deposition….on August 9, 2011.” (Doc. 133).
Defendant Nettles is correct that Plaintiff neither referenced nor addressed Rule 16(b)’s good
1 Plaintiff previously filed a Second Amended Complaint (with leave of court) on July 12, 2011. (Docs. 103, 109).
2 Plaintiff asserts that Defendant produced the lease to support its argument that the area around Bridge 38 floods,
creating a natural fire break to protect Bridge 38; Bridge 38 burned down on March 7, 2007, and the lease covers
cause requirement in its motion. However, Defendant Nettles is not correct in asserting that
Plaintiff’s basis for the request is that it could not have known about the lease prior to August 9,
2011. Rather, as detailed supra, Plaintiff asserts that while it already had the lease prior to August
9th, it was only on that date, through Nettles’ deposition testimony, that it learned that it had a breach
of contract claim against Nettles. Additionally, while Plaintiff has not specifically referenced Rule
16(b) or asserted that it has “good cause” for filing an amended complaint at this stage of the
litigation, the Court finds that Plaintiff’s explanation of why the breach of contract claim was only
recently realized suffices as “good cause” such that Plaintiff could not have included such a claim in
their prior complaints (which were filed prior to August 9, 2011). Thus, Plaintiff’s failure to amend
its complaints to add such a claim prior to the scheduling order deadline was not the result of a lack
of diligence in pursuing its claims.
As such, it is ORDERED that Plaintiff’s motion for leave to file a third amended complaint
(Doc. 127) is GRANTED.
DONE and ORDERED this the 12th day of September 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
property near the area where the accident that is the subject of the lawsuit occurred. (Doc. 127 at 1-2).
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