United States District Court, M.D. Alabama, Northern Division
AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC. d/b/a ABC SUPPLY CO., INC., Plaintiff,
PRECISION ROOFING AND CONSULTING, LLC d/b/a PRECISION ROOFING, INC., and MICHAEL S. DUNN, Defendants.
MEMORANDUM OPINION AND ORDER
Harold Albritton Senior United States District Judge
FACTS AND PROCEDURAL HISTORY
cause is before the court on a Motion for Leave to Amend
Answer and Amended Motions (Doc. #44, 45, 52), filed by the
5, 2017, the parties filed a Proposed Joint Discovery Plan
(Doc. #18). A Uniform Scheduling Order was entered on May 22,
2017 in accordance with the parties' submission. Under
the Uniform Scheduling Order, motions to amend the pleadings
were due by June 23, 2017. (Doc. #27). The discovery cut-off
was November 15, 2017.
Defendants obtained new counsel in this case following
withdrawal of former counsel. New Defense counsel appeared in
this action on October 30, 2017. On November 13, 2017,
Defendants' counsel sought to amend the Answer to assert
affirmative defenses not previously raised. On November 17,
2017, the Defendants sought to extend the deadline in which
to conduct discovery. No discovery has been conducted in this
courts are required to “enter a scheduling order that
limits the time to ... amend the pleadings, complete
discovery ...” Fed.R.Civ.P. 16(b)(3). Such orders may
be modified only “ for good cause.” Fed.R.Civ.P.
16(b)(4). The good cause standard precludes modification of
the Uniform Scheduling Order 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). The burden of establishing
good cause under the rule rests on the party seeking relief
from the scheduling order. See, e.g., Race Tires America,
Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3rd
noted, the Defendants seek to extend two deadlines in the
Uniform Scheduling Order: the deadline to amend the pleadings
and the discovery cut-off. Both deadlines have passed under the
Uniform Scheduling Order. (Doc. #27).
Defendants contend that the Plaintiff failed to comply with
Rule 26 and has not provided initial disclosures,
establishing good cause for amending the Scheduling Order to
allow additional time for discovery. The Defendants do not
describe the discovery needed, stating that until the
Plaintiff makes the initial disclosures required by Rule 26,
counsel is not in the position to determine all needed
discovery. The Defendants' reason for amending the answer
is that affirmative defenses were omitted from the original
Plaintiff opposes these requests of the Defendants. The
Plaintiff's position is that there has been no showing of
good cause because mere change in counsel is not a sufficient
basis for allowing amendment of the pleadings or discovery
after the deadlines established in the Uniform Scheduling
Order. The Plaintiff also states that it will be prejudiced
by a delay and more costs and expenses.
the argument that initial disclosures were not made,
establishing cause for extending the discovery deadline, the
Plaintiff presents an affidavit of counsel that he and
previous Defense counsel understood that each party had the
relevant documents concerning the Plaintiff's claims.
(Doc. #56-1). Plaintiff argues that all counsel understood
that they would cooperate and exchange any further documents
as needed or requested, but neither party did so, and no
party objected to the failure to make formal disclosures.
Counsel for Plaintiff states in his affidavit that neither
party conducted discovery because each party had the relevant
documents described in the Joint Discovery Plan. (Doc.
#56-1). Counsel for Plaintiff also states that he made
disclosures to the Defendants at the request of new Defense
counsel on December 22, 2017 and December 27, 2017,
consisting of the contracts and communications between ABC
and Defendants. (Doc. #56-1).
regard to the extension of time sought to amend the answer,
the Defendants have offered no explanation for seeking to
amend the answer other than that former counsel asserted only
three affirmative defenses and other defenses were available.
This court is persuaded by the reasoning of other courts that
to find good cause simply on the basis of the party getting
new counsel would be to allow a party to manufacture good
cause at any time simply by switching counsel. See,
e.g., Alexander v. Westbury Union Free Sch.
Dist., 829 F.Supp.2d 89, 118 (E.D.N.Y. 2011). The
relevant question is not when the party decided to make the
amendment, but when the facts on which the proposed amendment
is based were available. Kontarines v. Mortg. Elec.
Registration Sys., Inc., No. 15-CV-2206 (ARR), 2016 WL
3821310, at *4 (E.D.N.Y. July 12, 2016). There has been no
showing in this case that the facts underlying the
affirmative defenses the Defendants seek to add were not
available before the Uniform Scheduling Order deadline. While
the Defendants have argued that there is no prejudice,
diligence, not lack of prejudice, is the key to the inquiry.
Rogers v. Hartford Life & Acc. Ins. Co., No.
CIV.A. 12-0019-WS-B, 2012 WL 2395194, at *3 (S.D. Ala. June
22, 2012). The Motion to Amend to add affirmative defenses
is, therefore, due to be DENIED.
the request for additional discovery, the Plaintiff has
represented that counsel for the parties had an agreement
regarding the disclosure of documents, no objection was made
to that agreement until new counsel made an appearance, and
that the documents agreed to be provided have been provided
to the Defendants. The court agrees that it appears the
Defendants seek to conduct formal discovery apparently as a
change in strategy, rather than as a request based on facts
previously unavailable. See, e.g., Rossvanes v.
Equip. Sales Corp., No. CIV.A. 09-0822-CG-N, 2010 WL
4269151, at *2 (S.D. Ala. Oct. 25, 2010) (stating
“Plaintiff cannot salvage her case or avoid the
consequences of her lack of diligence by pointing to her
attorney's failings.”). While the Defendants state
that they cannot identify at this time the discovery
required, such a broad request for discovery is not
sufficient to establish that discovery deadline could not
have been met through due diligence. The court must conclude,
therefore, that the Defendants have failed to support their
Motion. Cf. Northstar Marine, Inc. v. Huffman, No.
CIV.A. 13-0037-WS-C, 2014 WL 3720537, at *4 (S.D. Ala. July
28, 2014) (stating “[t]o cast aside a critical
Scheduling Order deadline a year after the fact on a showing
as threadbare as that offered by Huffman would be to strip
the Scheduling Order of any meaningful force or effect,
rendering it a toothless advisory document whose
prescriptions and requirements can be lightly cast aside for
the haziest and most amorphous of reasons.”).