Opinion
CASE NO. 11-22051-CV-LENARD/O'SULLIVAN
08-30-2012
NESREAM HUSAM SHEHADA, et al., Plaintiffs, v. CITY OF MIAMI BEACH, FLORIDA, et al., Defendants.
ORDER DENYING PLAINTIFFS' MOTION TO AMEND SECOND AMENDED COMPLAINT (D.E. 101)
THIS CAUSE is before the Court on Plaintiffs' Motion to Amend Second Amended Complaint (D.E. 101), filed June 18, 2012. Defendant City of Miami Beach filed its Response in Opposition (D.E. 118), on August 14, 2012. Having considered the Motion, Response, related pleadings, and the record, the Court finds as follows.
I. Background
This a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Defendant City of Miami Beach Police Officer Adam Tavss unjustifiably shot and killed Decedent Husien Husam Shehada while Husien was walking down the street. Plaintiff Samer Shehada was walking with Husien at the time. Plaintiffs Karlia Karpel and Natasha Johnson were Husien and Samer's girlfriends. They had been following behind and were detained following the shooting.
Plaintiff initiated this lawsuit on June 7, 2011. Plaintiffs' Second Amended Complaint sets forth the following claims against Defendants Tavss and the City of Miami Beach:
| Count | Plaintiff | Defendant | Basis of Claim | Allegation |
|---|---|---|---|---|
| 1 | Husien's Estate | City | 42 U.S.C. § 1983 /4th Amendment | Excessive use of force |
| 2 | Husien's Estate | Tavss | 42 U.S.C. § 1983 /4th Amendment | Excessive use of force |
| 3 | Husien's Estate | City | Florida state law | Wrongful death |
| 4 | Husien's Estate andSamer Shehada | Tavss | Florida state law | Intentional infliction ofemotional distress |
| 5 | Husien's Estate | City | Florida state law | Battery |
| 6 | Husien's Estate andSamer Shehada | City | Florida state law | Negligent hiring,retention, and supervision |
| 7 | Karpel and Johnson | City | Florida state law | False imprisonment |
| 8 | Samer Shehada | City | Florida state law | Assault |
On December 13, 2011, the Parties' filed a Joint Scheduling Form containing their agreed-upon pretrial deadlines. (D.E. 42-1) The Parties agreed, among other things, that "[a]ll motions for joinder of parties or to amend pleadings shall be filed" by "Jan. 29, 2012." (Id.) On February 2, 2012, the Court issued an Order adopting the Joint Scheduling Form in substantial part. (D.E. 49.) Of course, as the agreed deadline for amendment of pleadings had already passed, the Order listed that deadline as "N/A." (See id. at 2.)
II. Motion to Amend
Plaintiffs now move to amend their Second Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). (See Motion, D.E. 101.) Plaintiffs seek to add a count of negligent hiring and retention against the City under 42 U.S.C. § 1983. Plaintiffs assert that discovery has revealed a sufficient evidentiary basis for the additional claim. Plaintiffs further argue that Defendants will suffer no undue prejudice or surprise if the count is added, as similar theories of liability are already set forth within Count 6 of the Second Amended Complaint.
Defendant City of Miami Beach opposes Plaintiffs' Motion. (See Response, D.E. 118.) The City argues that leave to amend should be denied pursuant to Federal Rule of Civil Procedure 16(b), as the Parties' agreed deadline for amendment of pleadings has long expired and Plaintiffs fail to demonstrate good cause for their delay in amending. The City argues that the allegedly new discovery justifying Plaintiffs' proposed amendment has long been in Plaintiffs' possession:
In short, all of the newly discovered records and depositions that Plaintiffs claim justify their effort to add a new claim to their complaint were either provided to them in public records disclosures before the case was even filed, were provided early in the case in discovery, or were not obtainable by background investigator Alberti or by Tavvs because they were never entered into any law enforcement database under Tavvs' name. Because Plaintiffs[] have had all of the information that they have now since before the case was filed or shortly thereafter, Plaintiffs have not established excusable neglect for their last-minute motion to amend.(Response, D.E. 118 at 6.) The City also adds that Plaintiffs' amendment would be futile because the allegations set forth in the newly-proposed count would be unsustainable.
Plaintiffs have filed no reply in support of their Motion.
III. Discussion
"[W]hen a motion to amend [the complaint] is filed after a scheduling order deadline, Rule 16 [of the Federal Rules of Civil Procedure] is the proper guide for determining whether a party's delay may be excused." Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 n.2 (11th Cir. 1998) (per curiam).
Under Rule 16, district courts are required to enter a scheduling order that "limit[s] the time to . . . amend the pleadings." Fed. R. Civ. P. 16(b). This scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4); see also Francois v. Miami Dade Cnty., 432 F. App'x 819, 821 (11th Cir. 2011) (per curiam) (stating that "to amend a pleading after a court-imposed deadline, a party must show good cause pursuant to Federal Rule of Civil Procedure 16(b)"). "The good cause standard precludes modification unless the schedule cannot 'be met despite the diligence of the party seeking the extension.'" Sosa, 133 F.3d at 1418 (quoting Fed. R. Civ. P. 16 advisory committee's note); see also Francois, 432 F. App'x at 821 (stating that "[a] party may not show good cause for failing to amend his complaint within the deadline set by the court's scheduling order where he fails to act diligently in pursuing claims"). "In other words, good cause exists when evidence supporting the proposed amendment would not have been discovered in the exercise of reasonable diligence until after the amendment deadline had passed." Ameritox, Ltd. v. Aegis Servs. Corp., Case No. 07-80498, 2008 WL 2705435, at *2 (S.D. Fla. July 9, 2008). "If the court finds that the party lacked due diligence, then the inquiry into good cause is ended." Estate of Duckett v. Cable News Network LLLP, Case No. 5:06-cv-444-Oc-10GRJ, 2010 WL 2025220, at *2 (M.D. Fla. Apr. 19, 2010) (citing Sosa, 133 F.3d at 1418); see also Moyer v. Walt Disney World Co., 146 F. Supp. 2d 1249, 1252 (M.D. Fla. 2000) ("No diligence, no good cause, no leave to amend."). Accordingly, "even if the opposing party would not be prejudiced by the modification of a scheduling order, good cause is not shown if the amendment could have been timely made." Ameritox, 2008 WL 2705435, at *2.
In the event that good cause for an untimely amendment is shown under Rule 16, Rule 15 instructs the Court to "freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "'Although leave to amend shall be freely given when justice so requires, a motion to amend may be denied on numerous grounds such as undue delay, undue prejudice to the defendants, and futility of the amendment.'" Maynard v. Bd. of Regents, 342 F.3d 1281, 1287 (11th Cir. 2003) (quoting Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir. 2000)).
Here, Plaintiffs seek to amend their Second Amended Complaint well after the expiration of the agreed deadline for amendment of pleadings. The City cogently argues that all evidence forming the basis of Plaintiffs' proposed amendment has been within Plaintiffs' possession since the beginning of the case. The City's arguments remain un-rebutted by Plaintiffs. The Court accordingly finds no good cause for allowing Plaintiffs' belated amendment.
For these reasons, it is hereby ORDERED AND ADJUDGED that Plaintiffs' Motion to Amend Second Amended Complaint (D.E. 101), filed June 18, 2012, is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of August, 2012.
/s/ _________
JOAN A. LENARD
UNITED STATES DISTRICT JUDGE