Roberson v. BancorpSouth Bank, Inc.
ORDER denying 36 Motion to Amend Complaint as untimely. Signed by Chief Judge William H. Steele on 9/12/2013. copies to parties. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
ADRIA E. ROBERSON,
BANCORPSOUTH BANK, INC.,
CIVIL ACTION 12-0669-WS-N
This matter comes before the Court on plaintiff’s Motion for Leave to File Amended
Complaint (doc. 36). The Motion has been briefed and is now ripe for disposition.
Plaintiff, Adria E. Roberson, brought this action against defendant, BancorpSouth Bank,
Inc., alleging claims of sexual harassment, gender discrimination and retaliation under Title VII.
On March 1, 2013, Magistrate Judge Nelson entered a Rule 16(b) Scheduling Order (doc. 16)
providing, in relevant part, that “Any motion for leave to amend the pleadings or to join other
parties must be filed on or before May 13, 2013.” (Doc. 16, ¶ 5 (emphasis in original).)
On August 23, 2013, Roberson filed her Motion for Leave to File Amended Complaint,
explaining that she wished to amend her pleading “to clarify her factual allegations in support of
her existing causes of action pending in this matter.” (Doc. 36, at 1.) Plaintiff indicated that
“[a]s a result of [the] discovery process it has become apparent that the Plaintiff’s retaliation
claim … is grounded in ‘the participation clause’ of said code section” and that she wished to
clarify the factual allegations in her pleading to delineate the nature of her Title VII retaliation
claim. BancorpSouth opposes the Motion on various grounds.
Although the parties principally spar as to whether a “participation clause” retaliation
claim under Title VII is the same as, or different than, an “opposition clause” retaliation claim
under Title VII, the Court need not and does not reach that issue at this time. Defendant’s
alternate ground for opposing plaintiff’s request is dispositive. In particular, BancorpSouth
correctly points out that the deadline fixed in the Rule 16(b) Scheduling Order for motions to
amend the pleadings expired several months before Roberson requested leave to amend. The
scheduling order deadline is neither aspirational nor advisory. In that regard, the Federal Rules
of Civil Procedure provide that scheduling order deadlines “may be modified only for good
cause and with the judge’s consent.” Rule 16(b)(4), Fed.R.Civ.P.1 The “good cause” standard
“precludes modification unless the schedule cannot be met despite the diligence of the party
seeking the extension.” Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)
(citation and internal quotation marks omitted); see also Romero v. Drummond Co., 552 F.3d
1303, 1319 (11th Cir. 2008) (“To establish good cause, the party seeking the extension must have
been diligent.”). This rule is strictly enforced, particularly where, as here, the nonmovant has
objected to the proposed amendment as untimely under the applicable scheduling order.2
It is no answer to argue, as Roberson does, that leave to amend is freely granted under
Rule 15, Fed.R.Civ.P. To be sure, motions for amendment of pleadings are ordinarily evaluated
through the lens of the liberal amendment policy embodied in Rule 15(a)(2) (“The court should
freely give leave when justice so requires.”). However, the more stringent Rule 16(b)(4) test
applies where, as here, the request for amendment postdates the applicable scheduling order
deadline. Were the law otherwise, scheduling orders would be trivialized to the point of
meaninglessness. See Millenium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1299
See also Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1312 (11th Cir. 2009) (where
motion to amend came long after scheduling order deadline, “Plaintiffs were required to show
good cause under Federal Rule of Civil Procedure 16(b).”); Southern Grouts & Mortars, Inc. v.
3M Co., 575 F.3d 1235, 1241 (11th Cir. 2009) (“A plaintiff seeking leave to amend its complaint
after the deadline designated in a scheduling order must demonstrate ‘good cause’ under
See, e.g., Rogers v. Hartford Life and Acc. Ins. Co., 2012 WL 2395194, *1 n.3
(S.D. Ala. June 22, 2012) (“[A] scheduling order is not a frivolous piece of paper, idly entered,
which can be cavalierly disregarded by counsel without peril … Disregard of the order would
undermine the court’s ability to control its docket, disrupt the agreed-upon course of the
litigation, and reward the indolent and the cavalier.”) (citation omitted); Will-Burn Recording &
Pub. Co. v. Universal Music Group Records, 2009 WL 1118944, *2 n.5 (S.D. Ala. Apr. 27,
2009) (“Particularly where a nonmovant objects to a proposed amendment as untimely under the
applicable scheduling order, this Court has strictly applied the Rule 16(b) ‘good cause’ standard
to belated amendments to the pleadings.”).
(11th Cir. 2007) (“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.”) (citation omitted); Smith v. School Bd.
of Orange County, 487 F.3d 1361, 1367 (11th Cir. 2007) (“despite Smith’s argument on appeal
that the district court should have granted his motion to amend his complaint in accordance with
… Rule 15(a), Smith still had to comply with Rule 16(b)’s good cause requirement because he
filed his motion to amend” after the scheduling order deadline).
Plaintiff does not endeavor to formulate a “good cause” argument, nor does she directly
address BancorpSouth’s Rule 16(b)(4) ground for opposing the Motion. By all appearances,
Roberson had or could have had all of the facts she needed to frame her “participation clause”
retaliation claim well in advance of the applicable deadline, a circumstance which negates good
cause. See, e.g., Wolk v. Kodak Imaging Network, Inc., 840 F.Supp.2d 724, 735 (S.D.N.Y. 2012)
(“[T]he good cause standard is not satisfied when the proposed amendment rests on information
that the party knew, or should have known, in advance of the deadline.”) (citation omitted);
Kendall v. Thaxton Road LLC, 2011 WL 3903400, *5 (11th Cir. Sept. 7, 2011) (no good cause
for untimely amendment where “the facts with which Kendall wished to amend his complaint
were known to Kendall at the time he filed his initial complaint”). To the extent that Roberson
might suggest that new information was disclosed during discovery, such a suggestion does not
suffice under Rule 16(b)(4) because she does not specify what those facts were, why they were
previously undiscoverable, or how they promote a “participation clause” theory of retaliation.
See Smith, 487 F.3d at 1367 (where plaintiff claims that untimely amendment should be excused
because discovery yielded new information, such an argument does not satisfy Rule 16(b)(4)
where plaintiff “failed to further indicate what those new violations were, what facts supported
them, and why those facts previously were undiscoverable”).
Nor does plaintiff establish the requisite good cause via her position that there would be
no prejudice to defendant if the amendment were allowed. Diligence, not lack of prejudice, is
the touchstone of the Rule 16(b)(4) inquiry. See De Varona v. Discount Auto Parts, LLC, 285
F.R.D. 671, 672-73 (S.D. Fla. 2012) (“In short, diligence is the key to satisfying the good cause
requirement.”); Stonecrest Partners, LLC v. Bank of Hampton Roads, 770 F. Supp.2d 778, 786
(E.D.N.C. 2011) (opining that court has “no cause” to address prejudice “where the initial Rule
16(b) requirement of diligence has not been met”); Southern Track & Pump, Inc. v. Terex Corp.,
722 F. Supp.2d 509, 521 (D. Del. 2010) (“the good cause standard under Rule 16(b) hinges on
diligence of the movant, and not on prejudice to the non-moving party”) (citation omitted); Chao
v. Westside Drywall, Inc., 709 F. Supp.2d 1037, 1074 (D. Or. 2010) (“lack of prejudice to the
non-moving party does not constitute good cause” for an untimely amendment). As such, an
allegation that defendant would not be prejudiced if the amendment were permitted cannot help
plaintiff in the absence of a threshold showing of diligence, which she has not made.
In short, on this record, the Court readily concludes that Roberson, who is requesting
modification of the Rule 16(b) Scheduling Order’s deadline for motions to amend pleadings
some three and a half months after that deadline expired, has failed to make the necessary
showing of good cause for such modification. The orderly, efficient passage of lawsuits through
the federal courts demands that the Federal Rules of Civil Procedure be followed, that the parties
adhere to Scheduling Orders, and that parties act diligently to safeguard their rights and advance
their positions. Under the circumstances present here, allowing plaintiff's dilatory amendment
would undermine each of these objectives, supplanting predictable procedural rules and rigorous
scheduling deadlines with an ad hoc, chaotic, “anything-goes” approach. This the Court is
unwilling to do.
For all of the foregoing reasons, plaintiff’s Motion for Leave to File Amended Complaint
(doc. 36) is denied as untimely.
DONE and ORDERED this 12th day of September, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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