Yerk v. People for the Ethical Treatment of Animals
Filing
169
OPINION AND ORDER denying 115 Motion to strike and/or for sanctions; denying 152 Motion for relief from scheduling order and for leave to amend to assert punitive damages. Signed by Judge John E. Steele on 10/20/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT E. TARDIF, JR., as Trustee
for Jason Yerk,
Plaintiff,
vs.
Case No.
2:09-cv-537-FtM-29SPC
PEOPLE for the ETHICAL TREATMENT of
ANIMALS, a Virginia not-for-profit
corporation,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion for
Relief
From
Scheduling
Order
and
Motion
for
Leave
to
Amend
Complaint to Assert Punitive Damages (Doc. #152) filed on July 15,
2011.
Defendant’s Response (Doc. #153) in opposition was filed on
July 28, 2011.
Also before the Court is Plaintiff’s Motion to
Strike Defendant’s Pleadings for Fraud Upon the Court and/or Motion
for Sanctions (Doc. #115), filed on April 8, 2011.
Defendant’s
Response (Doc. #121) was filed on April 20, 2011.
Plaintiff’s request for punitive damages could have, and
should have, been alleged in his initial complaint.
Cohen v.
Office Depot, Inc., 184 F.3d 1292, 1297-1298 (11th Cir. 1999),
vacated in part on other grounds, 204 F.3d 1069 (11th Cir. 2000).
Plaintiff’s request to do so now is untimely.
No good cause has
been established, and undue prejudice will accrue to defendant at
this late stage of the proceedings if the amendment is allowed.
Plaintiff’s request for sanctions drew a factual response from
defendant which included defendant’s request for sanctions.
The
conduct of both sides during the course of this litigation has from
time to time been disappointing.
Striking pleadings and entering
a default is clearly a severe sanction to be used only in extreme
circumstances.
That standard has not been satisfied in this case.
Accordingly, it is now
ORDERED:
1.
Plaintiff’s Motion for Relief From Scheduling Order and
Motion for Leave to Amend Complaint to Assert Punitive Damages
(Doc. #152) is DENIED.
2.
Plaintiff’s Motion to Strike Defendant’s Pleadings for
Fraud Upon the Court and/or Motion for Sanctions (Doc. #115) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2011.
Copies:
Counsel of record
-2-
20th
day of
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