United States District Court, S.D. Florida
ARMEN A. TEMURIAN, et al, Plaintiffs,
PHILLIP A. PICCOLO, JR., et al, Defendants.
ORDER DENYING MOTION TO AMEND
SMITH, UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on Plaintiffs' Motion
for Leave to Amend the Second Amended Complaint
(“Motion to Amend”) (ECF No. 155), filed on
October 3, 2019. Although the deadline to file motions to
amend pleadings passed on June 24, 2019, Plaintiffs seek to
file the proposed Third Amended Complaint attached to the
Motion to Amend (ECF No. 155-3), which would add counts
arising under the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §§ 1961-68
(“RICO”). Defendants filed a Response (ECF No.
156) on October 4, 2019, and Plaintiffs filed a Reply (ECF
No. 161) on October 7, 2019. The Court has carefully reviewed
the Motion to Amend, all supporting and opposing submissions,
and the record as a whole. For the reasons set forth below,
Plaintiffs' Motion to Amend (ECF No. 155) is
filed their original Complaint (ECF No. 1) on November 9,
2018, alleging seventeen causes of action against Defendants.
Plaintiffs filed their First Amended Complaint (ECF No. 33)
as a matter of course on January 7, 2019, adding two
additional causes of action for a total of nineteen counts.
On January 8, 2019, the Court entered its Scheduling Order
(ECF No. 35), which, among other things, set the trial date
for February 3, 2020, and set the deadline for all amendments
to pleadings for March 11, 2019.
moved to extend the amended pleadings deadline first on March
11, 2019 (ECF No. 51); the Court granted Plaintiff's
motion the next day (ECF No. 52), extending the deadline to
April 27, 2019. On April 17, 2019, Plaintiffs moved for a
second extension of time to file amended pleadings (ECF No.
55), which the Court granted the same day (ECF No. 56),
extending the deadline to May 24, 2019.
April 22, 2019, the Court entered an Order (ECF No. 59)
granting Defendants' Motion to Dismiss the First Amended
Complaint (ECF No. 36), and permitting Plaintiffs to file a
Second Amended Complaint on or before April 29, 2019.
Plaintiffs filed two motions for extension of time (ECF Nos.
66, 68), which the Court granted, extending the deadline to
file the Second Amended Complaint to May 2, 2019 (ECF No.
67), and then May 3, 2019 (ECF No. 69). Plaintiffs filed
their Second Amended Complaint, the current operative
pleading, on May 3, 2019 (ECF No. 71), which pleads a total
of twenty counts against Defendants. Defendants moved to
dismiss the Second Amended Complaint on May 12, 2019 (ECF No.
24, 2019, Plaintiffs filed a third motion to extend the
deadline to file amended pleadings (ECF No. 84), which the
Court granted the same day (ECF No. 85). The Order set the
amended pleadings deadline for June 24, 2019-the current
deadline-and further stated that “the parties are
advised that the Court will grant no further extensions
absent extenuating circumstances.”
days after the deadline for amendments to pleadings passed,
on July 17, 2019, Plaintiffs filed their first Motion to
Amend the Second Amended Complaint (ECF No. 111). In that
motion, Plaintiffs sought leave to file, and attached, a
Third Amended Complaint which would add three additional
counts under RICO and one alternative count for fraudulent
inducement (ECF No. 111-1). The same day, the Court struck
this motion for failure to comply with the conferral
requirements of Local Rule 7.1(a)(3) (ECF No. 112).
days passed. On October 3, 2019, Plaintiffs filed the present
Motion to Amend (ECF No. 155), 101 days after the deadline
for amended pleadings passed. The Motion to Amend again seeks
leave to file a Third Amended Complaint, and again seeks to
add additional counts under RICO.
15(a) of the Federal Rules of Civil Procedure states that a
party may amend its pleading once as a matter of course, and
in all other cases only with opposing party's consent or
with the court's leave. “The court should freely
give leave when justice so requires.” Fed.R.Civ.P.
15(a)(2). But, “[w]hen amendment to a complaint is
sought after the deadline established in a scheduling order,
as is the case here, the plaintiff must first demonstrate
good cause under Fed.R.Civ.P. 16 before a court will consider
whether amendment is proper under Fed R. Civ. P.
15(a).” Kernal Records Oy v. Mosley, 794
F.Supp.2d 1355, 1368-69 (S.D. Fla. 2011) (citing Smith v.
School Bd. of Orange County, 487 F.3d 1361, 1366 (11th
Cir. 2007)). “To show good cause for an untimely
amendment, a plaintiff must demonstrate diligence.”
Kernal Records Oy, 794 F.Supp.2d at 1368-69.
“Diligence is evaluated by considering the following
factors: (1) whether the plaintiff failed to ascertain facts
prior to filing the complaint and to acquire information
during the discovery period; (2) whether the information
supporting the proposed amendment was available to the
plaintiff; and (3) whether even after acquiring the
information the plaintiff delayed in seeking the
have failed to show good cause for moving for a third
amendment of their complaint, over three months after the
amended pleadings deadline passed. Plaintiffs maintain that
they have exercised diligence by abstaining from filing the
Motion to Amend before they had obtained through discovery
more evidence to bolster their RICO claims. However,
Plaintiffs already believed that they had enough information
to pursue four RICO claims against Defendants in their
original Motion to Amend filed on July 17, 2019 (ECF No.
111), under certification of Rule 11. Indeed, as Plaintiffs
themselves concede, “[t]he proposed Amended Complaint
filed as (ECF No. 111) is essentially the same as the one
filed as an attachment to this instant Motion.” The
only material difference between the two proposed complaints
is that the first one proposed adding four counts, while the
second one proposed adding two. Thus, Plaintiffs are not
relying on any new information for their new proposed RICO
counts, and cannot claim that they demonstrated diligence in
waiting seventy-eight days from the time the Court struck the
first motion to amend, to the time they filed the present
Motion to Amend. Under these circumstances, justice does not
require the third amendment of Plaintiffs' complaint, and
the Court accordingly denies Plaintiffs' request.