United States District Court, S.D. Florida
POLLO CAMPESTRE, S.A. de C.V, Plaintiff,
CAMPERO, INC; CAMPERO INTERNATIONAL HOLDINGS LIMITED; and CAMPERO INTERNATIONAL LIMITED, Defendant.
ORDER ON CAMPERO'S MOTION FOR LEAVE TO FILE AN
G. TORRES, UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Campero, Inc.'s
(“Campero” or “Defendant”) motion for
leave to file an amended counterclaim against Pollo Capestre,
S.A. de C.V. (“Plaintiff”). [D.E. 100]. Plaintiff
filed an untimely response to Campero's motion on July
29, 2019 [D.E. 110] to which Campero replied on August 5,
2019. [D.E. 114]. Therefore, Campero's motion is now ripe
for disposition. After careful consideration of the motion,
response, relevant authority, and for the reasons discussed
below, Campero's motion for leave to amend is
operates Latin American style fried chicken restaurants
throughout El Salvador and Latin America while Campero does
the same throughout Virginia. On September 7, 2004, Plaintiff
registered a domain name and used it as an advertisement and
promotional platform targeting consumers in El Salvador. On
October 7, 2014, Plaintiff filed an application with the
United States Patent and Trademark Office
(“USPTO”) for the registration of the illustrated
service mark Campestre, with Serial No. 86416926, which
depicted the word “Pollo” sitting atop the word
“Campestre.” USPTO reviewed Plaintiff's
trademark application and approved the submission on July 26,
November 14, 2016, Campero filed its opposition against the
registration of Plaintiff's mark due to (1) the
likelihood of confusion under Trademark Act § 2(d); and
(2) fraud under USPTO. On December 19, 2017, the Trademark
Trial and Appeal Board (“TTAB”) of the USPTO
granted Campero's motion for summary judgment based on
the likelihood of confusion. Plaintiff then filed this action
seeking de novo review of the TTAB's decision.
APPLICABLE LEGAL PRINCIPLES AND LAW
Rule of Civil Procedure 15(a) governs amendments to
pleadings. A party may amend any pleading once as a matter of
right before a responsive pleading has been filed or within
twenty-one (21) days after serving the pleading if no
responsive pleading is allowed. See Fed. R. Civ. P.
15(a)(1). In all other situations, the amending party must
obtain written consent from the opposing party or leave of
the court to amend the pleading. See Fed. R. Civ. P.
15(a)(2). The rule declares that leave to amend Ashall be
freely given when justice so requires.” Id. If
the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits.
See Foman v. Davis, 371 U.S. 178, 182 (1962).
amendments leading to a modification of the required pretrial
scheduling order are subject to a “good cause”
standard of scrutiny. Fed.R.Civ.P. 16(b)(4). That means that
after the deadline for amending pleadings set forth in a
scheduling order has passed the party seeking the amendment
must show good cause why leave to amend the complaint should
be granted. See, e.g., Ray v. Equifax Info.
Servs., LLC, 2009 WL 977313, at *1 (11th Cir. 2009)
(citing Sosa v. Airprint Sys., Inc., 133 F.3d 1417,
1419 (11th Cir. 1998)). And a district court need not allow
an amendment where allowing the amendment would cause undue
prejudice to the opposing party. See Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
course, the grant or denial of an opportunity to amend is
within the discretion of the district court, but outright
refusal to grant the leave without any justifying reason
appearing for the denial is not an exercise of discretion; it
is merely abuse of that discretion and inconsistent with the
spirit of the Federal Rules. Id. In the absence of
any apparent or declared reason the leave sought should, as
the rules require, be “freely given.”
Id. Substantial reasons justifying a court's
denial of a request for leave to amend include undue delay,
bad faith or dilatory motive on the part of the movant, and
repeated failure to cure deficiencies by amendments
previously allowed. See, e.g., Well v. Xpedx, 2007
WL 1362717, *1 (M.D. Fla. 2007) (citing Burger King Corp.
v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999)).
when the amendment is sought because of new information
obtained during discovery, it is not an abuse of discretion
to deny leave to amend if the moving party unduly delays
pursuit of the amended pleading. See, e.g., United States
v. $172, 760 in U.S. Currency, 2007 WL 1068138 (M.D. Ga.
2007). Additionally, a district court may properly deny leave
to amend when an amendment would be futile. See Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1262-3 (11th Cir.
2004); see also Eveillard v. Nationstar Mortg. LLC,
2015 WL 1191170, at *6 (S.D. Fla. Mar. 16, 2015) (“The
law in this Circuit is clear that ‘a district court may
properly deny leave to amend the complaint under Rule 15(a)
when such amendment would be futile.'”) (quoting
Hall, 367 F.3d at 1263). “When a district
court denies the plaintiff leave to amend a complaint due to
futility, the court is making the legal conclusion that the
complaint, as amended, would necessarily fail.” St.
Charles Foods, Inc. v. Am.'s Favorite Chicken Co.,
198 F.3d 815, 822 (11th Cir. 1999). This determination is
akin to a finding that the proposed amendment would not
survive a motion to dismiss. See Christman v. Walsh,
416 Fed.Appx. 841, 844 (11th Cir. 2011) (“A district
court may deny leave to amend a complaint if it concludes
that the proposed amendment would be futile, meaning that the
amended complaint would not survive a motion to
seeks leave to amend its counterclaim to eliminate prior
references of Plaintiff's use of Campero's trademarks
in commerce. Campero claims that Plaintiff has sworn
under oath that its marks have not been used in commerce and
that an amended counterclaim is needed to refine its claims
under the Declaratory Judgment Act. Campero argues that there
is no reason to deny its request for leave to amend because
it has not engaged in bad faith or undue delay. Campero also
claims that Plaintiff will not suffer any undue prejudice and
that the proposed amendment is viable at the pleading stage.
Because Campero is entitled to protect its trademark rights
under federal law and will be prejudiced if not permitted to
do so, Campero concludes that it must be allowed to file an
filed its motion on July 8, 2019. Plaintiff then filed a
response on July 29, 2019 - one week after the deadline to do
so and in violation of the Local Rules. See Local
Rule 7.1(c) (“[E]ach party opposing a motion shall
serve an opposing memorandum of law no later than fourteen
(14) days after service of the motion. Failure to do so may
be deemed sufficient cause for granting the motion by
default.”). Plaintiff, who is represented by counsel,
did not seek an extension of time to file its response nor
did Plaintiff offer any explanation for the untimely filing.
Plaintiff merely filed its response outside of the required
time period and left it for the Court to consider.
begin with the well-settled principle that “[d]eadlines
are not meant to be aspirational” and attorneys
“must take responsibility for the obligations to which
[they] committed and get the work done by the
deadline.” Young v. City of Palm Bay, Fla.,
358 F.3d 859, 864 (11th Cir. 2004) (affirming the district
court's refusal to consider plaintiff's untimely
responses to defendants' summary judgment motions).
Indeed, “[a] district court must be able to exercise
its managerial power to maintain control over its
docket” and, absent good cause for an extension, the
Court's deadlines must be enforced to ensure fairness to
all sides. Id. As such, a Court's refusal to
consider an untimely timely motion is not an abuse of
discretion. See Mosley v. ...