United States District Court, S.D. Florida
WYNDHAM VACATION OWNERSHIP, INC., et al. Plaintiffs,
TOTTEN FRANQUI DAVIS & BURK, LLC, et al. Defendants.
ALTMAN UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on the Motion to Continue
(“Motion”) filed by the Defendants, Eric Cline,
Shyla Cline, and Scott Morse (collectively the “Moving
Defendants”) [ECF No. 193], on April 16, 2019. For the
reasons set forth below, the Motion is
Court entered a Scheduling Order on November 29, 2018. [ECF
No. 73]. Since then, different groups of Defendants have
moved to continue either the trial or the impending discovery
deadlines no fewer than four times. [ECF No.'s 76, 89,
modify a scheduling order, a litigant must show “good
cause” and obtain the “judge's
consent.” See Fed. R. Civ. P. 16(b)(4);
see also Oravec v. Sunny Isles Luxury Ventures,
L.C., 527 F.3d 1218, 1232 (11th Cir. 2008). Each of the
various Defendants' first three attempts to continue the
applicable deadlines was denied for failure to show good
cause. [ECF No.'s 89, 107].
the Moving Defendants have now filed what amounts to a fourth
motion to amend the Scheduling Order and to continue the
deadlines contained therein. See Mot. at 1 [ECF No.
193]. In their Motion, the Moving Defendants raise three
principal arguments. First, they ask the Court to
extend the discovery deadlines so that they can file new
answers and counterclaims to the Plaintiffs' Second
Amended Complaint. See Mot. ¶¶ 11-12 [ECF
No. 193]. Second, they suggest that the trial date
should be continued because of an ongoing dispute between the
parties as to the applicability of the automatic stay
provisions of 11 U.S.C. § 362. See Mot. ¶
10 [ECF No. 193]. Third, they claim that, at the
time of their Motion, there was no “operative
complaint” on file. See Mot. ¶ 12 [ECF
No. 193]. These arguments are unpersuasive.
the Second Amended Complaint provides no basis for any
continuance-let alone the indefinite extension the Motion
requests. After all, the Second Amended Complaint does
nothing more than include the names of the holding companies
the Defendants voluntarily incorporated. [ECF No. 194]. It
adds no charges and alleges no new substantive facts.
[Id.]. Indeed, that limited amendment was all this
Court allowed in its order granting the Plaintiff leave to
file a Second Amended Complaint in the first place. [ECF No.
188]. In short, the Second Amended Complaint did nothing to
alter or expand the scope of the discovery that has been
necessary in this case from the very beginning. Accordingly,
the filing of the Second Amended Complaint cannot provide the
Moving Defendants with the “good cause” they need
to modify the Scheduling Order.
whether or not the bankruptcy court ultimately concludes that
the Moving Defendants are subject to the automatic stay
provisions of 11 U.S.C. § 362 is immaterial to the
question of whether a continuance is warranted here. After
all, if the stay provisions do apply to the Moving
Defendants, then the case will be stayed, and no further
discovery-extended or not- will be permitted. On the other
hand, if the stay provisions do not apply to the Moving
Defendants, then the case should proceed as it had prior to
the Suggestion of Bankruptcy-that is, according to the
original schedule. Either way, the Moving Defendants'
cogitations about whether or not the stay provisions might
one day apply them-without more-do not constitute sufficient
“good cause” for the Court to modify the
the Moving Defendants' suggestion that no
“operative complaint” existed at the time of
their Motion, Mot. ¶¶ 11-12 [ECF No. 193], is wrong
as a matter of both law and logic. As a matter of law, an
operative complaint did exist at the time of the
Motion. The Plaintiffs' Motion for Leave to File a Second
Amended Complaint did not vitiate the First Amended Complaint
[ECF No. 40]. That First Amended Complaint continued to
exist-and to operate in the case-until it was superseded by
the Second Amended Complaint. C.f. Fawzy v. Wauquiez
Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017) (“[A]
properly filed amended complaint
supersedes the original one and
becomes the operative complaint . .
. .” (emphasis added)). And this makes sense. After
all, had the Court denied the Plaintiffs leave to file their
Second Amended Complaint, that denial would not have worked a
simultaneous dismissal of the Plaintiffs' claims. Why?
Because the First Amended Complaint would have remained in
operation. In any event, even if there had been no operative
complaint at the time of the Motion, the Second Amended
Complaint [ECF No. 194] was filed a few hours later-thus
mooting this third argument entirely.
AND ADJUDGED that the Defendants' Motion to
Continue [ECF No. 193] is DENIED
The Court notes that the Plaintiffs
filed their Motion for Leave to File the Second Amended
Complaint  on January 7, 2019-that is, on the very date
this Court set as the deadline for motions ...