Connectus LLC v. Ampush Media, Inc.

Filing 105

ORDER: The Court GRANTS Connectus LLC's Motion to Voluntarily Dismiss Counts I, V, and VI (Doc. # 71 ). Counts I, V, VI are DISMISSED WITHOUT PREJUDICE. Connectus shall file, no later than November 14, 2016, a Second Amended Complaint omitting Counts I, V, and VI only. Signed by Judge Virginia M. Hernandez Covington on 11/10/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CONNECTUS LLC,
Plaintiff,
v.

Case No. 8:15-cv-2778-T-33JSS

AMPUSH MEDIA, INC., and
DGS EDU, LLC,
Defendants.
_______________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Connectus LLC’s Motion to Voluntarily Dismiss Counts I, V,
and VI Without Prejudice, filed on October 7, 2016. (Doc. #
71). On October 21, 2016, Defendants, Ampush Media, Inc. and
DGS Edu, LLC, filed a response in partial opposition to the
Motion. (Doc. # 79). For the reasons that follow, the Court
grants the Motion and dismisses Counts I, V, and VI without
prejudice.
I. Background
Given that the Court has thoroughly traced the facts of
this case before (Doc. # 45), a lengthy discussion of the
facts is not warranted and the Court provides only a brief
overview of the action.

On

December

11,

2015,

Connectus

filed

an

Amended

Complaint asserting nine different claims against Ampush and
DGS: Count I (civil theft), Count II (conversion), Count III
(misappropriation
(unfair

of

competition),

Deceptive

and

Unfair

trade
Count

V

Trade

secrets),
(violation
Practices

of

Count
the

Act),

IV

Florida

Count

VI

(violation of the Federal Wiretap Act), Count VII (unjust
enrichment), Count VIII (breach of contract), and Count IX
(injunctive relief). (Doc. # 9). Ampush filed its Answer on
January 29, 2016, Ampush and DGS filed a Motion to Dismiss or
Transfer on February 4, 2016, arguing Connectus’ filing of
suit in the Middle District of Florida violated the forumselection clause of the Media Service Level Agreement. (Doc.
## 30, 36). Connectus filed its response on February 18, 2016.
(Doc. # 41). The Court denied the Motion to Dismiss on February
26, 2016. (Doc # 45).
Connectus now seeks to voluntarily dismiss three of the
counts asserted in its Amended Complaint without prejudice:
Count I (civil theft), Count V (violation of the Florida
Deceptive and Unfair Trade Practices Act), and Count VI
(violation of the Federal Wiretap Act). (Doc. # 71 at 1).
Defendants have filed a response in partial opposition to the
Motion,

consenting

to

the

dismissal

2

of

the

claims

but

requesting the Court grant the dismissal with prejudice.
(Doc.

#

79

at

1).

The

Motion

is

ripe

for

the

Court’s

consideration.
II. Legal Standard
Fed. R. Civ. P. 41 “allows a plaintiff to dismiss all of
his claims against a particular defendant; its text does not
permit

plaintiffs

particular

claims

to

pick

within

and
an

choose,
action.”

dismissing
Klay

v.

only
United

Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 2004). For
that reason, the proper way for a plaintiff to eliminate
particular claims from an action should be to amend the
complaint under Rule 15 rather than dismiss under Rule 41.
Id.; State Treasurer of State of Mich. v. Barry, 168 F.3d 8,
15 (11th Cir. 1999) (“‘Rule 41 is not meant for the use the
parties in this case and others like it have put it: the rule
speaks of voluntary dismissal of “an action,” not a claim.’”).
Therefore,

a

court

should

construe

a

motion

for

voluntary dismissal as a request for leave to amend the
complaint pursuant to Rule 15(a)(2) when it has the limited
purpose of withdrawing some, but not all, of a plaintiff’s
claims against a defendant. Armington v. Dolgencorp, Inc.,
No. 3:07-CV-1130-J-JRK, 2009 WL 210723, at *2 (M.D. Fla. Jan.
20, 2009). Under Rule 15, “a party may amend its pleading

3

only with the opposing party’s written consent or the court’s
leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2).
“While ‘The Court should freely give leave when justice
so requires,’ a motion to amend filed after the deadline
established by the Case Management and Scheduling Order, as
in this case, will only be granted upon a showing of good
cause under Rule 16(b)(4).” Hess v. Coca-Cola Refreshments
USA, Inc., No. 8:13-CV-3136-T-33EAJ, 2014 WL 5080258, at *2
(M.D. Fla. Sept. 29, 2014)(citation omitted).
III. Analysis
Here, Connectus’ Motion is untimely under the Court’s
Case Management and Scheduling Order because the deadline for
filing motions to add parties or to amend pleadings was April
8, 2016. (Doc. # 40 at 1). As a result, the good cause standard
pursuant to Rule 16(b)(4), must be met before the Court can
apply the more liberal Rule 15 standard.
A. Rule 16(b)(4) “Good Cause”
“[A] district court has the inherent authority to manage
and control its own docket ‘so as to achieve the orderly and
expeditious disposition of cases.’” Voter Verified, Inc. v.
Premier Election Sols., Inc., No. 6:09–cv–1968–Orl-19–KRS,
2010 WL 1049793, at *2 (M.D. Fla. Mar. 22, 2010) (quoting

4

Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape
Serv., Inc., 556 F.3d 1232, 1240 (11th Cir. 2009)). According
to Rule 16(b)(4), “A schedule may be modified only for good
cause and with the judge's consent.” To show good cause, a
party

must

establish

that,

despite

his

diligence,

the

deadline could not be met. Sosa v. Airport Sys., Inc., 133
F.3d 1417, 1419 (11th Cir. 1998) (citation omitted).
By its Motion, Connectus requests the Court dismiss
Counts

I,

prejudice.

V,

and

(Doc.

VI
#

71

of
at

the
1).

Amended
While

Complaint
Connectus

without
has

not

specifically addressed good cause under Rule 16(b) in its
Motion, it does assert it is requesting to voluntarily dismiss
the three claims in order to narrow the focus of the case and
conserve the resources of the Court and parties. (Id. at 4).
As indicated in their response, Ampush and DGS do not
oppose the Motion. (Doc. # 79 at 1). However, they request
the Court dismiss any individual claims from the Amended
Complaint with prejudice. (Id. at 1–2). Ampush and DGS contend
that, at this stage of discovery, they would be unduly
impacted by the removal of Counts I, V, and VI without
prejudice because extensive discovery has already taken place
and they have encountered substantial costs in defending the
entire scope of the Amended Complaint. (Doc. # 79 at 6).

5

Ampush and DGS also state that permitting the withdraw of
claims without prejudice would expose them to a later suit on
the same issues. (Id.)
This Court finds Connectus’ Motion occurred within as
reasonable time because a motion for summary judgment is not
pending, and the discovery and dispositive motion deadlines
were approximately two months out at the time the Motion was
filed.
A plaintiff who, after engaging in discovery,
concludes in good faith that her claim lacks merit
should be encouraged to seek leave to amend her
pleading and eliminate that claim. That scenario
would provide good cause under Rules 15 and 16 to
modify a court’s scheduling order and amend the
complaint.
Feise

v.

N.

Broward

Hosp.

Dist.,

No.

14-CIV-61556-

Bloom/Valle, 2015 WL 4638606, at *2 (S.D. Fla. Aug. 4, 2015).
Therefore, Connectus’ efforts to conserve resources and limit
the scope of the case constitutes good cause. Accordingly,
the Court finds good cause to allow leave to amend.
B. Rule 15(b) Leave to Amend
Once good cause has been shown, the court may contemplate
whether leave should be granted under Rule 15.
Where a plaintiff seeks leave of the court to amend
his pleadings, pursuant to Fed. R. Civ. P. 15(a),
this court has held that absent prejudice to the
defendant, bad faith or undue delay on the part of

6

the plaintiff, it is an abuse of
discretion to deny leave to amend.

the

court’s

Warner v. Alexander Grant & Co., 828 F.2d 1528, 1531 (11th
Cir. 1987); see also Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 598 (5th Cir. 1981)(“[M]ere passage of time need
not result in refusal of leave to amend; on the contrary, it
is only undue delay that forecloses amendment. Amendment can
be appropriate as late as trial or even after trial.”).   
The record currently before the Court does not establish
that Connectus unduly delayed bringing the instant Motion.
Additionally, Ampush and DGS have failed to establish that
there was any bad faith on the part of Connectus. To the
contrary, Connectus is seeking voluntary dismissal to reduce
the number of claims asserted for efficiency in litigation
and consideration of judicial resources. (Doc. #71 at 2).
Furthermore, Ampush and DGS’s argument that Connectus
may obtain some tactical advantage over the Defendants in
future litigation is not enough to make dismissal without
prejudice inappropriate. Goodwin v. Reynolds, 757 F.3d 1216,
1219 (11th Cir. 2014) (stating “‘in most cases a dismissal
should be granted unless the defendant will suffer clear legal
prejudice, other than the mere prospect of a subsequent

7

lawsuit,

as

a

result’”

(citation

omitted)).1

Therefore,

amending the Complaint will not cause undue prejudice to
Ampush and DGS, nor is there any indication of bad faith or
undue delay on the part of Connectus. Accordingly, the Court
finds there is no substantial reason to deny leave to amend.
Therefore, Connectus’ Motion will be granted and Counts
I, V, and VI will be dismissed without prejudice. Connectus
shall file an amended complaint by November 14, 2016, and
shall only remove Counts I, V, and VI.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) The Court GRANTS Connectus LLC’s Motion to Voluntarily
Dismiss Counts I, V, and VI (Doc. # 71). Counts I, V, VI are
DISMISSED WITHOUT PREJUDICE.
(2) Connectus shall file, no later than November 14, 2016, a
Second Amended Complaint omitting Counts I, V, and VI only.
DONE and ORDERED in Chambers in Tampa, Florida, this
10th day of November, 2016.

1

While Goodwin addressed dismissal of an action under Rule
41(a)(2), the Court finds the rational of Goodwin instructive
in this case, where a party seeks to voluntarily dismiss some,
but not all, of the claims asserted.

8