United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE.
court has for consideration the Defendant Huntsville City
Board of Education's Motion for Leave to Amend the
Pleadings, doc. 12. This case arises from a dispute over the
Board's termination of Mary Michelle Zirnis'
employment. Zirnis alleges that the Board discharged her in
retaliation for protected activity under the False Claims Act
(FCA), 31 U.S.C. § 3730(h), and because of her
disabilities and in retaliation for requesting reasonable
accommodations under § 504 of the Rehabilitation Act, 29
U.S.C. § 791 et seq. Doc. 1. The court has for
consideration the Board's motion to amend its Answer to
allow it, in part, to assert counterclaims. The Board has
filed the proposed amendment with just four months left in
discovery. Docs. 12-1; 9 at 1. The Board's proposed
amendments revise some of the responses and affirmative
defenses in its Answer and assert three state law
counterclaims against Zirnis for violations of Alabama Code
§ 6-5-4(a), fraudulent misrepresentation, and fraudulent
suppression. Doc. 12-1. Zirnis partially opposes the motion,
solely as to the addition of the counterclaims. Doc. 13 at 1.
For the reasons explained below, the motion is due to be
Federal Rule of Civil Procedure 15(a)(2), once the time has
run to amend a pleading as a matter of course, “a party
may amend its pleading only with the opposing party's
written consent or the court's leave.” The court is
instructed to “freely give leave when justice so
requires.” Id. However, “[t]he decision
whether to grant leave to amend is committed to the sound
discretion of the trial court.” Shipner v. E. Air
Lines, Inc., 868 F.2d 401, 406 (11th Cir. 1989).
“[A] motion to amend may be denied on numerous grounds,
such as undue delay, undue prejudice to the [nonmoving
party], and futility of the amendment.” Carruthers
v. BSA Advertising, Inc., 357 F.3d 1213, 1218 (11th Cir.
offers two reasons in opposition to the addition of the
counterclaims: (1) that the proposed counterclaims are
compulsory-which the Board does not dispute, see
doc. 14 at 2, 5-and that the Board's motion is therefore
precluded by Federal Rule of Civil Procedure 13. Doc. 13 at
3-4; and, alternatively, (2) that the Board unduly delayed in
raising its counterclaims, and that doing so now is unduly
prejudicial, doc. 13 at 6-7.
stated previously, the Board does not dispute that its
counterclaims are compulsory under Rule 13(a). Therefore, the
court turns to Zirnis' secondary contention that Rule
13(a) precludes the Board from asserting its counterclaims
now because, under the Rule, a party “must state”
any compulsory counterclaim it has “at the time”
it serves its answer, if it knew the grounds for the
counterclaim at that time. Fed.R.Civ.P. 13(a); see
doc. 13 at 5-6. It is undisputed that the Board knew the
basis for its counterclaims at the time it filed its answer.
See doc. 13 at 6; 14 at 4. However, “[a]n
amendment to add a counterclaim [is] governed by Rule 15[,
]” not Rule 13. Fed.R.Civ.P. 13, Advisory Committee
Notes, 2009 Amendments; see Univalor Tr. SA v. Columbia
Petroleum, LLC, 315 F.R.D. 374, 380 (S.D. Ala. 2016)
(noting that a party that omits a compulsory counterclaim
from its answer is “not necessarily” precluded
from subsequently asserting it in the same
litigation). Thus, the court must consider whether,
under Rule 15(a)(2), “justice . . . requires”
granting the Board leave to amend its Answer.
respect, as for Zirnis' first contention regarding undue
delay, notably, the Board filed the present motion before the
court's deadline for amending pleadings and four months
before the discovery deadline. See id. at 6; 9 at 1,
3; Uter v. Peacock, No. CV 04-0279-CB-C, 2005 WL
8158698, at *2 (S.D. Ala. Apr. 28, 2005) (granting leave to
add defendant's compulsory counterclaims although
defendant allegedly knew “about the existence of these
counterclaims since the answer was filed but failed to assert
them until the last day for amending the pleadings.”).
Furthermore, although the Board could have asserted its
counterclaims in its Answer, “[t]he mere passage of
time, without anything more, is an insufficient reason to
deny leave to amend.” Floyd v. Eastern Airlines,
Inc., 872 F.2d 1462, 1490 (11th Cir. 1989),
rev'd on other grounds, 499 U.S. 530 (1991).
Finally, the timing of the Board's motion does not
reflect the kind of significant delay that the Eleventh
Circuit has previously held warrants preclusion of a
party's motion to amend its pleadings. See Campbell
v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999)
(affirming denial of motion to amend where motion to amend
was filed “more than one year after discovery had
ended” and “after dispositive motions had been
filed”); Tampa Bay Water v. HDR Eng'g,
Inc., 731 F.3d 1171, 1176 (11th Cir. 2013),
overruled on other grounds by CSX Transp., Inc. v. Gen.
Mills, Inc., 846 F.3d 1333 (11th Cir. 2017) (affirming
denial of motion to amend where plaintiff “knew of the
factual basis for both” claims for over a year before
moving to amend). Accordingly, the court declines to find
that the Board unduly delayed in asserting its counterclaims.
second contention is related to undue prejudice.
Specifically, Zirnis asserts that allowing the counterclaims
would “greatly increase” the scope of
discovery, which will “work a hardship” on her.
Doc. 13 at 6-7. Zirnis also contends that adding the
counterclaims would cause her to seek “coverage from
available insurance or other source [sic] to defend her,
” possibly leading to the addition of new counsel and
“delay[ing] resolution of the case for months.”
Id. at 7. However, “‘undue
prejudice' is a lofty threshold. It requires more than a
likelihood of incurring additional expense and delay.”
Matthews v. Brookstone Stores, No. CV 05-0369-WS-C,
2006 WL 8438063, at *4 (S.D. Ala. Mar. 27, 2006) (citing
Loggerhead Turtle v. Cty. Council of Volusia Cty.,
Fla., 148 F.3d 1231, 1257 (11th Cir. 1998)). Although
the addition of the counterclaims would undoubtedly generate
additional expenses for Zirnis, this hardship must be
“weigh[ed] against any prejudice to the moving party if
amendment were not permitted.” Lockett v. Gen. Fin.
Loan Co. of Downtown, 623 F.2d 1128, 1131 (5th Cir.
1980) (citation omitted). “The argument of allowing
amendment is especially compelling when, as here, the omitted
counterclaim is compulsory.” Spartan Grain
& Mill Co. v. Ayers, 517 F.2d 214, 220 (5th Cir.
1975). Given their compulsory nature, preclusion of the
Board's counterclaims would prejudice the Board by
preventing it from raising these claims in future litigation.
See Southern Constr. Co., Inc. v. Pickard, 371 U.S.
57, 60 (1962) (noting that Rule 13(a) prevents parties from
asserting omitted compulsory counterclaims in future
court is also not swayed by the contentions of delay because
it believes that the remaining time is more than sufficient
to conduct discovery on all claims. The parties should
proceed with all speed because the court will not
grant an extension of the discovery deadline premised
generally on the addition of the counterclaims. Moreover,
“[t]he lengthy nature of litigation, without any other
evidence of prejudice . . . or bad faith . . . does not
justify denying . . . the opportunity to amend [a
pleading].” Bryant v. Dupree, 252 F.3d 1161,
1164 (11th Cir. 2001). Thus, in light of Rule 15(a)'s
liberal standard indicating that “[d]istrict courts . .
. should grant a motion to amend ‘unless there are
substantial reasons to deny' it, ” the court finds
that the Board's proposed counterclaims should be
allowed. See Bowers v. U.S. Parole Comm'n,
Warden, 760 F.3d 1177, 1186 (11th Cir. 2014) (quoting
Espey v. Wainwright, 734 F.2d 748, 750 (11th Cir.
1984) (alterations to quotation omitted). Therefore, the
Board's motion for leave to amend the pleadings, doc. 12,
is GRANTED. The Board is
DIRECTED to file its Amended Answer as a
separate docket entry.
 Rule 13(a) states, in part:
“(1) In General. A pleading must state
as a counterclaim any claim that-at the time of its
service-the pleader has against an opposing party if the
(A) arises out of the transaction or occurrence that
is the subject matter of the opposing party's claim . .
 Prior to the 2009 Amendments, Federal
Rule of Civil Procedure 13(f) governed whether “the
court may permit a party to amend a pleading to add a
counterclaim[.]” Fed.R.Civ.P. 13, Advisory Committee
Notes, 2009 Amendments (abrogating Rule 13(f)). However, Rule
13(f) was “administered . . . according to the same
standard [in Rule 15(a)(2)] directing that leave should be
freely given when justice so requires.” Id;
see, e.g., Vulcan Mktg., Inc. v. Tech.
Consumer Prod., Inc., 614 F.Supp.2d 1253, 1256 (N.D.
Ala. 2009) ...