Washington v. Carter's Retail, Inc.
Filing
30
ORDER finding as moot 29 Motion to strike; granting 22 Motion for extension of time to file; granting 23 motion to amend complaint. The Amended Complaint 24 is DEEMED FILED as of the date of this Order. Signed by Magistrate Judge Thomas E. Morris on 7/13/2011. (JE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
IN RE:
ESTATE OF BRIDGET WASHINGTON,
or ROBERT LEWIS WASHINGTON, JR.,
AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF BRIDGET WASHINGTON,
Plaintiffs,
vs.
CASE NO. 3:10-cv-1136-J-32TEM
CARTER’S RETAIL, INC., f/k/a,
OSHKOSH B’ GOSH RETAIL, INC.,
Defendant.
___________________________________/
ORDER
This matter is before the Court on Plaintiff, Robert Lewis Washington, Jr.’s, Motion
for Extension of Time to Amend Complaint (Doc. #22, Motion to Extend Time) and Motion
Amend the Complaint (Doc. #23).1 By way of a Consolidated Opposition (Doc. #28),
Defendant opposes both motions. Defendant also filed a Motion to Strike Count III from
Plaintiffs’ Complaint (Doc. #29, Motion to Strike). For the reasons stated herein, Plaintiff’s
Motion to Extend Time (Doc. #22) will be GRANTED, Plaintiff’s Motion to Amend Complaint
(Doc. #23) will be GRANTED, and Defendant’s Motion to Strike (Doc. #29) is DEEMED
MOOT.
1
On October, 22, 2010, the Decedent, Bridget Washington, died (Doc. #1 at 1). Ms. Washington’s estate
contends this action survives her death and that Robert Lewis Washington, Jr., as the named Personal
Representative of Ms. Washington’s estate, has standing to sue on behalf of the estate (Doc. #1 at 2).
I. Background
In this action, Plaintiff alleges Defendant violated the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq. (Doc. #1 at 1). On March 21, 2011, Plaintiff filed a
Consent to Join Collective Action by Catherine S. Harrington (Doc. #19). On April 11,
2011, the District Court entered a Case Management and Scheduling Order, which directed
that all motions to add parties or to amend the pleadings be filed on or before May 9, 2011
(Doc. #21 at 1).
On May 10, 2011, Plaintiff filed: (1) the instant Motion to Extend Time (Doc. #22);
(2) the Motion to Amend Complaint (Doc. #23); and a proposed amended complaint (Doc.
#24). Plaintiff’s Motion to Extend Time (Doc. #22) requests leave to permit the filing of the
Motion to Amend Complaint out of time, as the document was submitted after the May 9,
2011 deadline provided for in the Case Management and Scheduling Order (see Doc. #21
at 1).
In the Complaint (Doc. #1), Plaintiff alleges Defendant violated the Fair Labor
Standards Act by requiring a certain amount of work to be performed which necessitated
that employees work in excess of forty (40) hours per week (Doc. #1 at 6). Plaintiff claims
Defendant did not compensate its employees for time worked in excess of forty (40) hours
per week, requiring the Decedent and other employees of Defendant to work “off the clock”
in order to remain employed (Doc. #1 at 6). Plaintiff additionally maintains that, even
though such additional work was required, working the additional hours “off the clock”
nevertheless violated Defendant’s time-keeping policy, which also jeopardized the
employees’ continued employment (Doc. #1 at 7). Plaintiff claims the Decedent, after failed
2
attempts to correct the aforementioned with the district supervisor, contacted Defendant’s
Human Resources department to seek assistance in addressing the issue(s) related to
uncompensated work-hours (Doc. #1 at 6-8). Plaintiff alleges Defendant took no action
with respect to the Decedent’s requests, supra, but instead suspended Plaintiff without pay
pending an investigation into her alleged violations of Defendant’s time-keeping policy
(Doc. #1 at 8). Subsequently, on December 12, 2008, Plaintiff was terminated (Doc. #1 at
9).
Plaintiff claims she was terminated from her employment in retaliation for
complaining to Defendant’s Human Resources department (Doc. #1 at 11). Plaintiff also
maintains the reason(s) given for the Decedent’s termination were pre-textual (Doc. #1 at
11). Plaintiff additionally asserts grounds for a collective action with respect to other
employees that were similarly situated (Doc. #1 at 12).
II. Discussion
A.
Plaintiff’s Motion for Extension of Time to Amend the Pleadings
Plaintiff requests that the Court extend the deadline for amending the pleadings
(Doc. #22). As the Motion to Extend Time was filed on May 10, 2011, the request falls one
day after the deadline of May 9, 2011(see Doc. #21 at 1). As such, Plaintiff’s request to
modify the deadline is anaylized under both Rules 6 and 16 of the Federal Rules of Civil
Procedure. Ex rel. Miller v. Thrifty Rent-A-Car System, Inc., 609 F. Supp. 2d 1235, 1252
(M.D. Fla. 2009) (“when a party files a motion for leave to amend a pleading after the
relevant scheduling order deadline has passed, the party must demonstrate both good
3
cause and excusable neglect for the untimely motion”); see also Sosa v. Airprint Sys., Inc.,
133 F.3d 1417, 1418-19 & n. 2 (11th Cir. 1998).
The applicable portion of Rule 16 states, “[a] schedule may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Under Rule 6, “When
an act may or must be done within a specified time, the court may, for good cause, extend
time . . . on motion made after the time has expired if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).
Defendant contends Plaintiff cannot show good cause for failing to meet the subject
filing deadline and, therefore, is not entitled to an extension of time to amend the complaint
(Doc. #28 at 8).
The good cause standard “precludes modification unless the schedule cannot be
met despite the diligence of the party seeking the extension.” Sosa, 133 F.3d at 1418
(citations omitted). Cases in both the Eleventh Circuit and in the Middle District of Florida
have held that the moving party failed to establish good cause, and was not diligent, when
an extension of time to amend the pleadings was sought months after the filing deadline
had passed. S. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1242 (11th Cir. 2009)
(denying motion for extension of time to amend the pleadings when the motion was filed
five months after the deadline for such had expired); Romero v. Drummond Co., 552 F.3d
1303, 1318 (11th Cir. 2008) (denying extension on “the eve of trial”); Smith v. Sch. Bd. Of
Orange County, 487 F.3d 1361, 1367 (11th Cir. 2008) (denying motion to amend filed over
one year past the deadline); Lord v. Fairway Elec. Corp., 223 F. Supp. 2d 1270, 1276 (M.D.
4
Fla. 2002) (denying motion to amend when “final trail preparations should have been
underway”).
With respect to excusable neglect, the Supreme Court noted that, unless there is
sufficient indication Congress has intended otherwise, the phrase “excusable neglect”
should be interpreted as commonly used. Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 388 (1993). “Congress plainly contemplated that the courts
would be permitted, where appropriate, to accept late filings caused by inadvertence,
mistake, or carelessness, as well as by intervening circumstances beyond the party’s
control.” Id. Although Pioneer involved Bankruptcy Rule 9006, the Court noted the timecomputation and time-extension provisions of that rule, as well as Rule 6 of the Federal
Rules of Civil Procedure, are generally applicable to any time requirement found elsewhere,
unless expressly excepted. Id. at n.4. “The ordinary meaning of ‘neglect’ is ‘to give little
attention or respect’ to a matter” or “to leave undone or unattended to esp[ecially] through
carelessness.” Id. at 388 (citing WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1983)).
“The word [negligence] therefore encompasses both simple, faultless omissions to act and,
more commonly, omissions caused by carelessness.” Id.
In looking at all the circumstances leading to the omission in Pioneer, the Supreme
Court identified four factors that courts should consider: (1) the danger of prejudice to the
other party; (2) the length of the delay and its potential impact on the judicial proceedings;
(3) the reason for the delay, including whether it was within the reasonable control of the
movant; and (4) whether the movant acted in good faith. Id. at 395.
5
In an early post-Pioneer decision, the Eleventh Circuit noted it had been “at some
pain to define ‘excusable neglect’ in different fact situations in the past.” Cheney v. Anchor
Glass Container Corp., 71 F.3d 848, 849-50 (11th Cir. 1996). But based on examination
of the four Pioneer factors, supra, the Cheney court found the delay in filing a motion to set
aside a civil judgment was based on a communication failure between an associate
attorney and the lead counsel that amounted to “carelessness.” Id. at 850. The court
determined that such negligence was an innocent mistake, and was not made in bad faith.
Id. Finding no prejudice, the court held the neglect to be “excusable.” Id.
Here, Plaintiff’s counsel states she was busy outside of her office, with both workrelated and personal matters, until 9:00 p.m. on May 9, 2011, which was the deadline for
submitting a motion to amend the complaint (Doc. #22 at 2). At 9:00 p.m., Plaintiff’s
counsel claims she returned to her office in order to finalize both the Motion to Amend
Complaint (Doc. #22) and the proposed amended complaint (Doc. #24). When Plaintiff’s
counsel attempted to electronically file the papers using the Court’s electronic filing system
at 10:30 p.m., she was apparently unable to access the internet at her office due to an
internet “outage” (Doc. #22 at 2).2 Thus, Plaintiff was unable to timely file the subject
documents (Doc. #22 at 2).
Defendant cites, inter alia, McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387
(11th Cir. 1981), in support of its contention that the fact counsel for Plaintiff has a busy
practice does not establish excusable neglect (Doc. #28 at 13). In McLaughlin, however,
2
Pursuant to Rule 6(a)(4)(A) of the Federal Rules of Civil Procedure, the last day for electronic filing is “at
midnight in the court’s time zone.”
6
the court pointed out that having a busy practice was the “only” reason provided by the
counsel seeking an extension of time after having missed a filing deadline. 662 F.2d at
1387. Here, Plaintiff’s counsel maintains that, in addition to being busy, an internet outage
beyond her control precipitated her failure to meet the filing deadline (Doc. #22 at 2).
Defendant additionally claims it would suffer prejudice if the Court were to grant the
Motion to Extend Time (Doc. #22), as the proposed amended complaint adds a new partyplaintiff, Ms. Catherine S. Harrington, and an additional claim on behalf of the Decedent
pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2611 et seq. (Doc.
#28 at 13-14). Defendant, however, was already aware of the proposed additional party’s
desire to participate in the instant litigation. Specifically, the Consent to Join Collective
Action (Doc. #19), filed on March 28, 2011, indicates Ms. Harrington’s intent to join in any
collective FLSA action against Defendant. Although she apparently does not have a claim
for overtime compensation, the proposed amended complaint asserts a claim on her behalf
with respect to Defendant’s purported failure to pay her a minimum wage (Doc. #28 at 1314). Ms. Harrington’s minimum wage claim arises out of the same operative facts as the
Decedent’s claim(s) (see Doc. #1; Doc. #24). Further, Plaintiff avers Defendant was
already on notice as to the facts giving rise to the Decedent’s FMLA claim via responses
to discovery requests (Doc. #23 at 2).
Despite Defendant’s assertion(s) to the contrary, there is no discernable prejudice
here. “The inquiry is whether prejudice results from the delay, not from having to continue
to litigate the case.” Connecticut State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d
1337, 1357 (11th Cir. 2009) (emphasis in original). The motion was filed one day late, and
7
discovery is still ongoing (see Doc. #21 at 1). The proposed amended complaint (Doc. #24)
additionally withdraws the collective action count.
While waiting until the final hours to file the motion was undoubtedly careless, the
purported internet outage was outside of counsel for Plaintiff’s control. Plaintiff’s counsel
notified Defendant forthwith of her intent to file the instant motion, and does not appear to
have acted in bad faith. Therefore, the Court will grant Plaintiff’s Motion to Extend Time
(Doc.# 22) and accept the Motion to Amend Complaint (Doc. #23) as timely filed.
B.
Plaintiff’s Motion to Amend the Complaint
Plaintiff requests leave of Court to amend the Complaint (Doc. #23). By way of the
motion, Plaintiff seeks to add Ms. Harrington as an individual plaintiff in this matter and to
withdraw Count III, which asserts a collective action. Plaintiff also seeks to add a claim,
under the FMLA, with respect to the Decedent (Doc. #24 at 14-16). Defendant opposes
the relief sought by the motion, claiming Plaintiff’s motion, if granted, would prejudice
Defendant (Doc. #28 at 15-18). As noted above, the undersigned does not find Defendant
would be prejudiced; however, it is free to refute such at trial or in summary judgment
proceedings.
Rule 15(a) of the Federal Rules of Civil Procedure states that leave to amend “shall
be freely given when justice so requires.” Fed. R. Civ. P. 15; Foman v. Davis, 371 U.S.
178, 182 (1962). In the language of the Foman Court,
In the absence of any apparent or declared reason–such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of
8
amendment, etc.– the leave sought should, as the rules require, be ‘freely
given.’
Foman, 371 U.S. at 182. Upon due consideration, the undersigned finds Plaintiff’s Motion
to Amend Complaint (Doc. #23) not to be in bad faith, for purposes of delay, or for any
suspect reason stated above. Therefore, the motion will be granted.
III. Conclusion
Based on the foregoing, it is hereby ORDERED:
1.
Plaintiff’s Motion for Extension of Time (Doc. #22) is GRANTED.
2.
Plaintiff’s Motion to Amend Complaint (Doc. #23) is GRANTED.
3.
The Amended Complaint (Doc. #24) is DEEMED FILED as of the date of
this Order.
4.
Defendant’s Motion to Strike Count III of Plaintiffs’ Complaint (Doc. #29) is
DEEMED MOOT.
DONE AND ORDERED at Jacksonville, Florida this 13th day of July, 2011.
Copies to all counsel of record
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?