Warhurst v. One Twenty Foot Bertran

Filing 39

ORDER granting 36 Motion to Amend Answer to Counterclaim; Plaintiff's Notice of Expert Disclosure 37 is STRICKEN. Signed by Magistrate Judge Katherine P. Nelson on 9/15/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EARNEST E. WARHURST, JR.,

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Plaintiff,
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v.
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ONE TWENTY FOOT BERTRAN, 1969 )
Model Year, bearing Alabama
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Registration No. AL8238LM, her
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engines, tackle, equipment,
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appurtenances, and attached travel
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trailer, etc., in rem, and DAVID L.
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JONES, in personam,
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Defendants.
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Civil Action No. 14-00245-N
IN ADMIRALTY

ORDER
This action is before the undersigned United States Magistrate Judge on
Plaintiff’s Motion for Leave to Amend Answer to Counterclaim (Doc. 36) and Notice
of Expert Disclosure (Doc. 37), and the Response filed by Defendant David L. Jones
(Doc. 38). Upon consideration, Motion for Leave to Amend Answer to Counterclaim
is GRANTED and the proposed Amended Answer to Counterclaim is deemed filed
upon entry of this order. The Notice of Expert Disclosure was not filed with the
court until September 8, 2014, whereas the Scheduling Order provided that any
motion to permit leave for expert discovery would be filed “no later than August 18,
2014.” Doc. 29 at 3. Accordingly, Plaintiff’s Notice of Expert Testimony is
STRICKEN.

Generally, in the absence of any reason to deny the motion, such as undue
prejudice to the non-movant, undue delay, bad faith or dilatory motive, or repeated
failure to cure deficiencies on the part of the movant, or futility, leave to amend
should be freely given when justice so requires. Foman v. Davis, 371 U.S. 178, 182,
83 S. Ct. 227, 230 (1962). Overall, “there must be a substantial reason to deny a
motion to amend.” Laurie v. Ala. Ct. of Crim.App., 256 F.3d 1266, 1274 (11th
Cir.2001). Also, “[t]his Circuit has accepted a policy of liberal amendment.” U.S. for
Use and Benefit of Krupp Steel Products, Inc. v. Aetna Ins. Co. 831 F.2d 978,
983 (11th Cir. 1987) (citing Longhan v. Firestone Tire & Rubber Co., 749 F.2d 1519
(11th Cir.1985) and Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594 (5th Cir.
Nov.1981) (“The policy of the federal rules is to permit liberal amendment to
facilitate determination of claims on the merits and to prevent litigation from
becoming a technical exercise in the fine points of pleading.”)).
The motion was filed after the August 18, 2014, deadline for amendment of
pleadings and joinder of parties as set in Scheduling Order (Doc. 29 at 3). However,
this amended answer comes in response to an amended counterclaim by the nonmovant (See

Doc. 31) and there is more than two weeks until the scheduled

September 30, 2014 bench trial, so the non-movant will not be prejudiced in
preparing for trial. The docket does not indicate that Plaintiff engaged in any undue
delay or bad faith, exhibited a dilatory motive, or repeatedly failed to cure
deficiencies in its pleadings. Accordingly, Motion for Leave to Amend Answer to
Counterclaim is GRANTED and the proposed Amended Answer to Counterclaim is

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deemed filed upon entry of this order.
Plaintiff’s Notice of Expert Disclosure was not filed with the court until
September 8, 2014. This Notice is time-barred by the Scheduling Order provided
that any motion to permit leave for expert discovery would be filed “no later than
August 18, 2014.” Doc. 29 at 3. Fed. R. Civ. P. 16(b)(4) states that a schedule may be
modified “only for good cause” and Plaintiff has not shown what cause there is to
modify the Scheduling Order in light of the relatively small amount in controversy
and the added cost of expert testimony. Accordingly, Plaintiff’s Notice of Expert
Testimony is STRICKEN.
DONE and ORDERED this the 15th day of September, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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