United States District Court, M.D. Florida, Tampa Division
ORDER ON MOTION FOR LEAVE TO AMEND
S. SNEED, UNTIED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Motion for
Leave of Court to File First Amended Complaint
(“Motion”). (Dkt. 23.) Plaintiff moves to file an
amended complaint to remove the “Unknown Executor of
Estate of Stacey Gonzalez” as a Defendant from this
action. For the reasons that follow, Plaintiff's Motion
20, 2017, Plaintiff filed its Complaint, alleging specific
performance of an indemnity agreement, breach of an indemnity
agreement, and common law indemnity against all Defendants
and asserting diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a). (Dkt. 1.) On September 26, 2017, Plaintiff
moved for an entry of Clerk's default as to Midstate
Contractors, Inc. and Robert Gonzalez. (Dkt. 11.) The Clerk
of Court subsequently entered defaults against both
Defendants on September 27, 2017. (Dkts. 12-13.) On December
5, 2017, the Court granted Plaintiff's request for an
extension of time to serve the Unknown Executor of the Estate
of Stacey Gonzalez. (Dkt. 15.) Plaintiff later sought to
substitute Shari Mormon as Executor of the Estate of Stacey
Gonzalez in place of the “Unknown Executor.”
(Dkt. 17.) Plaintiff had reason to believe that Shari Mormon
was the sister of decedent as Ms. Mormon stated that she was
the Executor of the Estate of Stacey Gonzalez and accepted
service as the Executor of the Estate. (Dkts. 16, 23 at 2.)
However, Plaintiff now states that “there has been no
confirmation of that factual assertion from Ms. Mormon with
Florida's probate courts for the counties of Pasco,
Pinellas, or Hillsborough.” (Dkt. 23 at 2.) Further,
Plaintiff has not received any notice of any estate from
either Robert Gonzalez, the surviving spouse, or Shari Mormon
as required by Florida Statute § 733.2121.
(Id.) Thus, Plaintiff has concluded that no estate
exists for Stacey Gonzalez. (Id.) Plaintiff now
seeks leave of Court to amend its Complaint in order to
remove the Unknown Executor of Estate of Stacey Gonzalez from
this action and proceed against the remaining Defendants.
(Id. at 3.)
Federal Rule of Civil Procedure 15, a party may amend its
pleading “once within a short time after the filing of
responsive pleadings, and after that, ‘only with the
opposing party's written consent or the court's
leave, ' which ‘[t]he court should freely give . .
. when justice so requires.'” In re Engle
Cases, 767 F.3d 1082, 1108 (11th Cir. 2014) (quoting
Fed.R.Civ.P. 15(a)(2)). Because the purpose of Rule 15(a) is
to “allow parties to have their claims heard on the
merits, ” leave to amend should be liberally granted
“when the underlying facts or circumstances relied upon
by a plaintiff may be a proper subject of relief.”
Id. (internal quotation and citation omitted).
However, a motion for leave to amend may appropriately be
denied for the following reasons: (1) there has been undue
delay, bad faith, dilatory motive, or repeated failure to
cure deficiencies by amendments previously allowed; (2)
allowing amendment would cause undue prejudice to the
opposing party; or (3) amendment would be futile. Bryant
v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
case, Plaintiff moves to amend its Complaint for the first
time, and asserts that the only difference between the
original Complaint and the amended complaint will be the
absence of the “Unknown Executor of Estate of Stacey
Gonzalez” as a Defendant. (Dkt. 23.) Thus, the amended
complaint will not contain a new claim for relief against the
defaulted Defendants. Further, there is no indication that
leave to amend is sought based on bad faith or that the
amendment would cause undue prejudice to Defendants. See
Bryant, 252 F.3d at 1163.
also asks the Court to disallow Defendants Robert Gonzalez
and Midstate Contractors, Inc. an opportunity to file a
responsive pleading without first asking leave to do so.
(Dkt. 23 at 4.) The Clerk of Court has entered defaults
against Robert Gonzalez and Midstate Contractors, Inc. (Dkts.
12-13.) After a party's default has been entered, but
before the entry of default judgment, the district court may
exercise its discretion to set aside the default for
“good cause.” Fed.R.Civ.P. 55(c); see Jones
v. Harrell, 858 F.2d 667, 669 (11th Cir. 1988) (stating
that Rule 55(c) applies when a judgment has not been entered
and provides the court discretion to set aside the entry of
default). Thus, Robert Gonzalez and Midstate Contractors,
Inc. must move to set aside the defaults in order to file a
responsive pleading. See Fed. R. Civ. P. 55(c).
Accordingly, it is
1. Plaintiff's Motion for Leave of Court to File First
Amended Complaint (Dkt. 23) is GRANTED.
2. Plaintiff shall file its Amended Complaint within ten (10)
days of this Order.
3. Plaintiffs Motion to Substitute Party-Defendant (Dkt. 17)
and Motion for Default Against Defendant Shari Mormon as
Executor of Estate of Stacey Gonzalez (Dkt. 19) are
DENIED as moot.