Castilla v. National Union Fire Insurance Co. of Pittsburgh Pennsylvania

Filing 99

ORDER denying 91 Motion to Include 2 Other Policies That Are Part of the Original Breach of Contract. Signed by Judge James I. Cohn on 6/20/2012. (awe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-62086-CIV-COHN/SELTZER
ROLANDO CASTILLA,
an individual,
Plaintiff,
v.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH,
PENNSYLVANIA, a corporation,
Defendant.
___________________________________/
ORDER DENYING “MOTION TO INCLUDE 2 OTHER POLICIES THAT
ARE PART OF THE ORIGINAL BREACH OF CONTRACT”
THIS CAUSE is before the Court on Plaintiff Rolando Castilla’s “Motion to
Include 2 Other Policies That Are Part of the Original Breach of Contract” [DE 91]. The
Court has considered the Motion, Defendant National Union Fire Insurance Company of
Pittsburgh, Pennsylvania’s Response [DE 96], the record in this case, and is otherwise
fully advised in the premises.
I. BACKGROUND
On July 5, 2011, Plaintiff Rolando Castilla filed this action in the Circuit Court of
the Seventeenth Judicial Circuit, in and for Broward County, Florida [DE 4-1]. On
September 22, 2011, Defendant National Union Fire Insurance Company of Pittsburgh,
Pennsylvania removed the action to this Court [DE 1]. The current operative complaint
is the Second Amended Complaint [DE 29]. In the Second Amended Complaint,
Plaintiff brings one claim for breach of contract based on Defendant’s alleged failure to
pay insurance proceeds on a policy for accidental dismemberment. See Sec. Am.

Compl. Defendant also brings a Counterclaim [DE 34] against Plaintiff for insurance
fraud.
Although Plaintiff originally filed this action through counsel, he is currently
proceeding pro se. See Order Granting Motion to Set Aside Clerk’s Default [DE 59]. In
the instant pro se Motion, Plaintiff requests permission to add two insurance policies,
#47594661 and #47813025, to his case. See Mot. at 1. He represents that the failure
to include the policies was an “error that I didn’t [notice] till few days ago.” Id. He states
that his former attorneys failed to include the policies and dropped the claims on those
policies without his consent. See id. Defendant opposes Plaintiff’s request to add
claims under the two other policies. See Resp.
Meanwhile, trial in this case is set to begin on July 2, 2012. See Order Resetting
Trial and Pretrial Deadlines [DE 47] at 1. Amended pleadings were due by November
30, 2011. See Scheduling Order [DE 16].
II. LEGAL STANDARD
As explained by Federal Rule of Civil Procedure 16(b), a scheduling order such
as the one entered in this case “controls the course of the action unless the court
modifies it.” Fed. R. Civ. P. 16(d). Rule 16 further states that the “schedule may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
This good cause standard precludes modification unless the schedule cannot be met
“despite the diligence of the party seeking extension.” Sosa v. Airprint Sys., Inc., 133
F.3d 1417, 1418 (11th Cir. 1998).
Upon a determination that the party seeking amendment has met Rule 16(b)’s

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“good cause” standard, the Court must then examine whether the motion to amend
meets the requirements of Federal Rules of Civil Procedure 15(a). See Sosa, 133 F.3d
at 1419. Pursuant to Rule 15(a), a party may amend its pleading “by leave of court or
by written consent of the adverse party; and leave shall be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). In construing Rule 15(a), the Supreme Court has held
as follows:
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 amendment,
etc.—the leave sought should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962); see also McKinley v. Kaplan, 177 F.3d 1253
(11th Cir. 1999).
III. ANALYSIS
Plaintiff fails to meet the requirements of both Rule 16(b) and Rule 15(a). First,
Plaintiff has not demonstrated good cause to modify the Scheduling Order’s deadline to
amend pleadings because he was not diligent in seeking amendment. As Defendant
notes, Plaintiff actually was aware that the two other policies were no longer part of this
lawsuit much earlier than a “few days ago.” In support of this assertion, Defendant
submits the Declaration of its attorney, Jennifer Mansfield [DE 96-1]. Ms. Mansfield
explains that, in multiple conversations with Plaintiff since his attorney withdrew in
January 2012, she has reminded Plaintiff that his claims on the two other insurance
policies have been dropped. Mansfield Decl. ¶ 3. As an example of one of these
conversations with Plaintiff, Ms. Mansfield attaches a March 30, 2012 email in which
she reminded Plaintiff that he “filed an amended complaint in December that asserts a
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claim where the maximum that could ever be recovered under that policy is only
$25,000.” Id. ¶ 4; March 30, 2012 Email, Exhibit A to Mansfield Decl. [DE 96-1 at 4].
As further evidence that Plaintiff was aware that the two other policies were not part of
his currently operative complaint, Defendant points to an exchange at Plaintiff’s
continued deposition on April 16, 2012, in which Ms. Mansfield again reminded Plaintiff,
“You started the suit with three policies, but in December when you amended your
complaint you dropped it as to the two policies,” and “Your lawyers on your behalf filed
an amended complaint, it’s called the Second Amended Complaint, that only seeks
benefits under one policy.” Castilla Deposition, Volume III [DE 83-1] at 339:7-13.
Although Plaintiff claimed then, as he states in his instant Motion, that he did not
authorize his attorneys to drop his claims on the two other policies, id. at 339-341, this
evidence proves that he was at least aware that his claims on the two other policies
were dropped months ago, not merely a “few days ago.” Therefore, Plaintiff’s request
to amend his complaint will be denied because the deadline for amending pleadings
expired over six months ago, and Plaintiff does not meet Rule 16(b)’s “good cause”
requirement because he was not diligent in requesting this amendment.
Regardless, even if Plaintiff had shown good cause to extend the deadline under
Rule 16(b), the Court would not grant leave to amend under Rule 15(a) because of the
prejudice that Defendant would suffer if Plaintiff were permitted to add claims at this
late stage in the litigation. Defendant asserts that permitting Plaintiff to add claims now
“will greatly prejudice [Defendant’s] ability to obtain finality and defend itself, not to
mention result in substantial additional costs and attorney’s fees.” Resp. at 4.
Defendant notes, “Far too much time has passed and [Plaintiff’s] motion is far too late
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to contemplate allowing Plaintiff to re-plead his complaint yet again . . . . This case is on
the eve of trial – the joint pretrial stipulation is due in a week – and Plaintiff seeks to
start from scratch.” Id. As Defendant writes, “It is too late to start over.” Id. Therefore,
the Motion will be denied due to Plaintiff’s failure to show good cause to extend the
deadline to amend pleadings and because of the prejudice that Defendant would suffer
if Plaintiff were permitted to add his claims at this late stage in the litigation.1
IV. CONCLUSION
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that Plaintiff Rolando Castilla’s “Motion to Include
2 Other Policies That Are Part of the Original Breach of Contract” [DE 91] is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 20th day of June, 2012.

Copies provided to:
Counsel of record via CM/ECF
Pro se party via CM/ECF regular mail

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Defendant also argues that, for a number of reasons, including certain
reasons set forth in the pending Motion for Summary Judgment [DE 68], the proposed
amendments to Plaintiff’s complaint would be futile. The Court does not reach the
arguments for futility because this Motion must be denied for the reasons set forth
above. The Court will rule on the Motion for Summary Judgment in a separate Order.
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