United States District Court, M.D. Florida, Orlando Division
B. SMITH United States Magistrate Judge
case comes before the Court without a hearing on
Plaintiff's Unopposed Motion for Extension of Time to
Disclose Expert Reports (Doc. 50). A brief overview of the
background of this case is required to place the motion in
September 9, 2016, Plaintiff filed Case No.
6:16-cv-1582-Orl-41DAB in this Court (Doc. 1). Her complaint
alleged that Defendant Macy's Credit and Customer
Services, Inc. (“Macys”) “robo-called'
her more than 100 times in violation of the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227 et seq. (Id.). In each of the
following motions and papers, Macys stated that FDS Bank
(“Bank”), a federal savings association owned by
FDS Thrift Holding Co., Inc., which in turn is owned by
Macys, was the proper Defendant: Certificate of Interested
Persons and Corporate Disclosure Statement (Doc. 11, filed
October 28, 2016); Defendant's Motion to Stay Proceedings
Pending Ruling by the D.C. Circuit Court of Appeals (Doc. 12,
filed October 28, 2016); Defendant's Motion to Dismiss
Count II of Plaintiff's Complaint (Doc. 13, filed October
28, 2016); and Defendant's Motion to Dismiss
Plaintiff's Amended Class Action Complaint (Doc. 20 filed,
December 16, 2016). For unknown reasons, on March 27, 2017,
Plaintiff voluntarily dismissed the case without prejudice
filed this case, No. 6:17-cv-692-Orl-41TBS on April 17,
(Doc. 1). Her complaint is a putative class action against
Macys for violation of the TCPA (Id.). In its
Certificate of Interested Persons/Corporate Disclosure
Statement and Motion to Dismiss, Macys again alleged that the
Bank is the correct defendant. (Docs. 10-11, both filed May
13, 2017, the parties filed their Case Management Report in
which they proposed that, (a) Plaintiff make her expert
disclosures by January 16, 2018; (b) Macys would make its
expert disclosures by February 16, 2018; and (c) Plaintiff
would make her rebuttal expert disclosures by March 9, 2018
(Doc. 18). The Court accepted these proposed deadlines and
incorporated them into the Case Management and Scheduling
Order (“CMSO”) which governs this case (Doc. 19).
with a July 17, 2017 deadline to file her motion for class
certification, Plaintiff filed her Motion for Extension of
Time for Plaintiff to File Motion for Class Certification on
July 7, 2017 (Doc. 21). She alleged that she needed
additional time to conduct discovery relevant to class
certification, and that an extension to October 17, 2017
should give her the time she required (Doc. 21). Macys
opposed the motion and had through July 21, 2017 to file its
response (Id.). Faced with this timing issue,
Plaintiff filed her motion for class certification on July
17, 2017 (Doc. 25). Consequently, the Court denied as moot,
her motion for extension of time (Doc. 28).
opposition to Plaintiff's Motion for Class Certification
and in the Declaration of Daniel Delgado in Support of
Defendant Macy's Credit and Customer Services, Inc.'s
Opposition to Plaintiff's Motion for Class Certification,
Macys once again asserted that the Bank is the proper
defendant (Docs. 34, 36-1 both filed August 16, 2017).
September 6, 2017, Plaintiff filed her Motion for Leave to
File Amended Complaint to Substitute Two Defendants and to
Set New Class Certification Deadline (Doc. 42). The motion
seeks to substitute the Bank and Department Stores National
Bank (“DSNB”) for Macys as defendants in this
case (Docs. 42, 42-1). Macys does not oppose the substitution
of the Bank or DSNB but it does object to other relief sought
in the motion including additional time to move for class
certification and the addition of a new putative sub-class
(Doc. 43). The district judge has this motion under
Plaintiff asks the Court for a 90 day extension from when it
rules on her motion to amend and grant other relief (Doc.
42), within to take discovery and make her expert disclosures
(Doc. 50). Plaintiff represents that Defendant does not
oppose the motion (Id. at 3-4).
motion asks the Court to modify the CMSO. A scheduling order
“may be modified only for good cause and with the
judge's consent.” Fed.R.Civ.P. 16(b)(4). The
“good cause standard precludes modification unless the
schedule cannot ‘be met despite the diligence of the
party seeking the extension.'” Sosa v. Airprint
Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1998).
“The good cause standard under Rule 16 focuses
primarily on the diligence of the party seeking modification
of the scheduling order.” Dang v. Sheriff of
Seminole Cty., Case No. 6:14-cv-37-Orl-31TBS, 2015 U.S.
Dist. LEXIS 50946, *3-4 (M.D. Fla. Apr. 16, 2015) (Smith J.).
“The burden of establishing good cause/diligence rests
squarely on the party seeking relief from the scheduling
order.” Northstar Marine, Inc. v. Huffman,
Case No. 13-0037-WS-C, 2014 U.S. Dist. LEXIS 102419, at *8
(S.D. Ala. July 28, 2014).
Court is not persuaded that Plaintiff has shown good cause
for the requested extension. She has been aware since October
28, 2016 that the Bank may be the correct defendant, but for
unknown reasons, she waited until September 6, 2017, to seek
leave to amend her complaint to make this change. No
explanation has been provided why this issue was not
investigated and the change made prior to the filing of the
current lawsuit, or if investigation was made, why Plaintiff
was not persuaded prior to September, 2017 that she had sued
the wrong company.
Court also finds the motion to be premature. Only if the
Court grants the motion for leave to amend will the Bank and
DSNB become parties to this case. Until that happens, class
discovery from them is inappropriate.
these reasons, the motion for extension of time is
DENIED without prejudice.