Drew et al v. City of Atmore

Filing 35

ORDER denying 25 Motion for Leave to File Amended Complaint as set out. Signed by Judge Kristi K. DuBose on 1/30/12. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SABRINA DREW, Individually, and as
Personal Representative of the Estate of
Danny Williams, deceased, and
ROY HENDERSON,
Plaintiffs,
vs.
CITY OF ATMORE, et al.,
Defendants.

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CIVIL ACTION NO. 11-0346-KD-B

ORDER
This action is before the Court on the Plaintiffs’ combined motion for leave to file
amended complaint outside of scheduling order guidelines and proposed amended complaint
(doc. 25), the response filed by the City of Atmore (doc. 28), and the Plaintiffs’ reply (doc. 32).
Upon consideration and for the reasons set forth herein, the motion is DENIED.
Since the district courts Amust issue a scheduling order[]@ which Amust limit the time . . .
to join other parties” and “amend the pleadings….@, Fed. R. Civ. P. 16(b)(1) and (3), this Court
entered a Rule 16(b) Scheduling Order which set a deadline of October 31, 2011. (Doc. 8).
Plaintiffs now seek leave to amend after the deadline. In that circumstance, leave to amend will
be given only upon a showing of Agood cause@ under Rule 16(b)(4).1 Smith v. School Bd. of
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After entry of the Rule 16(b) Scheduling Order, the Aschedule may be modified only for
good cause and with the judge=s consent.@ Fed. R. Civ. P. 16(b)(4). In contrast, Rule 15(a) of the
Federal Rules of Civil Procedure applies when the motion for leave to amend is filed before the
deadline and under that Rule “a party may amend its pleading only with the opposing party's
written consent or the court's leave” and the “court should freely give leave when justice so
requires.” After entry of the Rule 16(b) Scheduling Order, the Aschedule may be modified only
for good cause and with the judge=s consent.@ Fed. R. Civ. P. 16(b)(4).

Orange Cty., 487 F.3d 1361, 1366 (11th Cir. 2007); Sosa v. Airprint Systems, Inc., 133 F.3d
1417, 1419 (11th Cir. 1998) (“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.”). AThe good cause standard
articulated by Rule 16(b) precludes modification of a scheduling order deadline unless it cannot
>be met despite the diligence of the party seeking the extension.=@ Sosa, 133 F. 3d at 1418
(citations omitted); Romero v. Drummond Co., Inc., 552 F.3d 1303, 1319 (11th Cir. 2008) (to
establish good cause under Rule 16(b), “the party seeking [leave of court] must have been
diligent.”). However, “if a party was not diligent, the good cause inquiry should end.” Sosa, 133
F. 3d at 1418 (internal brackets omitted).
Plaintiffs have failed to establish any reason why they could not have filed their motion
for leave to amend during the six week time period between receipt of the initial disclosures on
September 12, 2011 and the deadline of October 31, 2011. Instead, Plaintiffs waited over three
months after receipt, and six weeks after the deadline, to file their motion for leave to amend.
Plaintiffs state that the City produced its initial disclosures on September 12, 2011, and that these
disclosures contained the identify of the officers and agencies involved in the incident and the
investigation. (doc. 25, p. 1). The City explains that the incident giving rise to the death of
Sabrina Drew’s husband Danny Williams was investigated by the Florida Department of Law
Enforcement (FDLE) and the Office of the State Attorney for the First Judicial Circuit of Florida
(doc. 28, p. 2-3). The City disclosed a memorandum which was prepared by Assistant State
Attorney John Molchan and addressed to the FDLE agent in charge of the investigation. (doc. 28,
Exhibit A). The officers involved in the incident and the investigation are identified in the
memorandum. (Id). The City also disclosed investigative summaries prepared by the FDLE and

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witness statements taken by the FDLE. (doc. 28, p. 3).
In support of their motion, Plaintiffs state that they are “in the process of scheduling the
depositions of the individuals sought to be named”. (doc. 25) However, waiting until December
2011, to begin scheduling depositions despite having received initial disclosures in September,
and responses to discovery requests in early November 2011, does not demonstrate due diligence
in attempting to meet the October 31, 2011. In their reply, Plaintiffs state that once they
“determined the officers involved through discovery”, they “sought leave to amend” and that
“the individual officers were not confirmed until very recently”. (doc. 32). The Court is unsure
what the Plaintiffs mean by “confirmed” or “very recently”.2 By their own admission Plaintiffs
had received, by way of the City’s initial disclosures, a copy of the investigative reports, witness
statements, and memorandum by the Florida Assistant State Attorney, as early as September 12,
2011, well before the December 14, 2011 motion for leave to amend was filed.
DONE this the 30th day of January, 2012.

s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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In the motion, Plaintiffs state that the City responded to their discovery requests on
November 9, 2011. Perhaps it is this response from which they argue that the “individual
officers were not confirmed until very recently”. But even then, Plaintiffs waited more than
another month to file their motion for leave to amend.

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