Sun Industries, LLC v. Utilities One Inc.

Filing 38

ORDER denying 34 Motion to Extend Deadline to Amend Pleadings and Affirmative Defenses. Signed by Judge Beth Bloom on 5/6/2022. See attached document for full details. (jas)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-22793-BLOOM/Otazo-Reyes
SUN INDUSTRIES, LLC,
Plaintiff,
v.
UTILITIES ONE, INC.,
Defendant.
________________________________/
ORDER DENYING MOTION TO EXTEND DEADLINE TO AMEND PLEADINGS
AND MOTION TO AMEND ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE is before the Court upon Defendant Utilities One, Inc.’s (“Defendant”)
Motion to Extend Deadline to Amend Pleadings and Affirmative Defenses, ECF No. [34]
(“Motion”), filed on April 28, 2022. Plaintiff Sun Industries, LLC (“Plaintiff”) filed a Response in
Opposition, ECF No. [36] (“Response”), on April 29, 2022, to which Defendant filed a Reply,
ECF No. [37] (“Reply”). The Court has carefully reviewed the Motion, the record in this case, the
applicable law, and is otherwise fully advised. For the reasons that follow, Defendant’s Motion is
denied.
I.

BACKGROUND

Defendant seeks to amend its Answer and Affirmative Defenses. Defendant argues that
there is an unpled defense regarding Plaintiff’s licensure that would bar Plaintiff’s claim. See ECF
No. [34] ¶¶ 5-9. Defendant’s request is more than four months after the Court’s December 18,
2021 deadline to amend pleadings and less than two months before the Court’s discovery deadline
on June 28, 2022. See ECF No. [25].1

1

The parties appear to mistakenly state that the discovery deadline is May 13, 2022. See ECF Nos. [34]
¶ 15, [36] at 1.

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Plaintiff responds that Defendant fails to explain how the basis for the purported defense
was uncovered through discovery or otherwise hidden from Defendant in a manner that would
warrant the Court permitting an amended Answer and Affirmative Defenses at this late stage. See
ECF No. [36]. According to Plaintiff, although Defendant’s Motion refers to newly discovered
information that “Plaintiff obtained an Electrical Contractor’s License in October 2021,” ECF No.
[34] ¶ 6, that information has always been public. Plaintiff submits that the Florida Department of
Business and Professional Regulation has a public website where Defendant could have discovered
that information. See ECF No. [36] at 2. Further, Plaintiff argues that it would be prejudiced by
the untimely amendment because Plaintiff’s licensing in various states, including Florida, creates
a new legal argument that would require significant pretrial and briefing and discovery. See id. at
2-3.
Defendant replies that Plaintiff will not be prejudiced. See ECF No. [37]. Defendant argues
that the unpled defense will not present a complicated issue and will not require a duplication of
previous discovery. See id. Defendant also offers to simplify the issue by stipulating that Plaintiff
is licensed outside of the State of Florida. See id. at 2.
II.

LEGAL STANDARD

Generally, Rule 15 of the Federal Rules of Civil Procedure governs amendment to
pleadings. Apart from initial amendments permissible as a matter of course, “a party
may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.
R. Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. However,
“[a] district court need not . . . allow an amendment where there has been undue delay, bad faith,
dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2)
where allowing amendment would cause undue prejudice to the opposing party; or (3) where
amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Ultimately,
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“the grant or denial of an opportunity to amend is within the discretion of the District
Court[.]” Foman v. Davis, 371 U.S. 178, 182 (1962). See also Espey v. Wainwright, 734 F.2d 748,
750 (11th Cir. 1984) (“This policy of Rule 15(a) in liberally permitting amendments to facilitate
determination of claims on the merits circumscribes the exercise of the trial court’s discretion;
thus, ‘[u]nless there is a substantial reason to deny leave to amend, the discretion of the district
court is not broad enough to permit denial.’”) (citation omitted).
In addition, under the Federal Rules of Civil Procedure, district courts are required to enter
a scheduling order that limits the time to amend the pleadings. See Fed. R. Civ. P. 16(b)(3).
Scheduling orders may be modified only “for good cause and with the judge’s consent.” See id. at
Rule 16(b). “This good cause standard precludes modification unless the schedule cannot be met
despite the diligence of the party seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417,
1418 (11th Cir. 1998) (quoting Fed. R. Civ. P. 16 advisory committee’s note) (quotations omitted).
Accordingly, when a motion to amend is filed after a scheduling order deadline, Rule 16 is the
proper guide for determining whether a party’s delay may be excused. Id. at 1418 n.2; see
also Smith v. Sch. Bd. of Orange Cty., 487 F.3d 1361, 1366-67 (11th Cir. 2007) (holding that
“where a party files an untimely motion to amend, [we] must first determine whether the party
complied with Rule 16(b)’s good cause requirement,” before considering whether “justice so
requires” allowing amendment). If the party seeking relief “was not diligent, the [good cause]
inquiry should end.” Sosa, 133 F.3d at 1418 (quoting Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 609 (9th Cir. 1992)).
Therefore, when a motion for leave to amend a pleading is filed after the deadline set in a
court’s scheduling order, the court employs a two-step analysis. Id. at 1419. First, the movant must
demonstrate good cause under Rule 16(b) of the Federal Rules of Civil Procedure. Good cause
exists when the deadline could not “be met despite the diligence of the party seeking the
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extension.” Id. at 1418 (quoting Fed. R. Civ. P. 16 advisory committee note). Courts consider three
factors in assessing diligence: (1) whether the movant failed to ascertain facts prior to filing the
pleading or failed to acquire information during the discovery period, (2) whether the information
supporting the proposed amendment was available to the movant, and (3) whether the movant
delayed in requesting leave to amend even after acquiring the information. See id. at 1419. If the
movant demonstrates good cause, the court proceeds to determine whether an amendment to the
pleadings is proper under Rule 15(a) of the Federal Rules of Civil Procedure. Id.
Through this lens, the Court addresses the instant Motion.
III.

DISCUSSION

Deciding whether Defendant is entitled to amend its Answer and Affirmative Defenses
raises two overarching issues. The first is whether “good cause” exists pursuant to Rule 16(b) to
amend the Court’s Scheduling Order and allow Defendant to amend an Answer and
Affirmative Defenses more than four months after the deadline. The second is whether there is a
“substantial reason” to deny leave to amend under Rule 15(a), such as if the amendment would be
futile or would cause undue prejudice to Plaintiff.
Upon review, the Court does not find good cause to allow Defendant to amend its Answer
and Affirmative Defenses because Defendant has failed to demonstrate that it could not meet the
deadline despite exercising due diligence. As Plaintiff correctly argues, the Florida Department of
Business and Professional Regulation has a public website where Defendant could have discovered
the information regarding Plaintiff’s licensure. See ECF No. [36] at 2 (citing Licensee Details for
Toby

Berthelot,

Florida

Department

of

Business

and

Professional

Regulation,

https://www.myfloridalicense.com/LicenseDetail.asp?SID=&id=D3642E86D8C8C83E0182631
6ECAA011D (last accessed May 6, 2022)). Defendant fails provide any reason why it was unable

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to locate the basis for its unpled defense or argue that Plaintiff somehow concealed Plaintiff’s
licensure.2
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion, ECF No.
[34], is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, on May 6, 2022.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

Given Defendant’s failure to establish good cause under Rule 16(b), the Court need not address the
“substantial reason” analysis under Rule 15(a). As such, Defendant’s reliance on Elliot v. Williams, No. 2081280-CIV, 2020 WL 12689592, at *2 (S.D. Fla. 2020), and Ayca v. Seven C’s Building Maintenance, Inc.,
No. 1:20-CV-20224, 2020 WL 2513105, *3-*4 (S.D. Fla. 2020), to argue that there is no substantial reason
to deny leave is inapposite.
2

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