Hi guys! Brittany here.

An interesting case came out the other day and thought I would share it with you all.

Let’s get to it.

Jill Adler filed suit against All Hours Plumbing Drain Cleaning, alleging All Hours violated the TCPA by sending prerecorded telemarketing messages without obtaining the requisite prior express written consent.

But I’m not here to talk about whether an ATDS was used or whether Adler provided her consent to be contacted by All Hours. Not as fun, I know. Instead, I’m going to talk about amendments. More specifically, All Hours brought forth a motion to amend its Answer after the deadline contained in the Scheduling Order.

As I’m sure most of you are aware, Scheduling Orders in federal court are court orders that determine the flow of litigation. In other words, a scheduling order establishes important dates and deadlines that the parties have to adhere to leading up to trial. Most notably, a scheduling order usually contains the deadline for parties to amend the pleadings.

In this case, All Hours filed its Answer on April 16, 2021, which did not contain any counterclaims. The Scheduling Order contained a deadline, which provided the last day the parties could amend the pleadings was July 6, 2021.

On March 29, 2022, All hours filed a motion seeking to amend its answer to include a counterclaim for quantam meruit (damages). Although it was nearly nine months after the deadline, All hours argued that they recently learned of new information that necessitated the amendment. This seems reasonable to me.

Under Federal Rule of Civil Procedure 16(b)(4), “the court may extend the deadlines in a scheduling order if the movant is able to demonstrate ‘good cause’ for that modification.”  However, when a party seeks to extend the time to “perform ‘any act’ after the deadline has passed, the court may extend the deadline only upon a showing of good cause and that the failure to act was due to excusable neglect.”

In addition to Rule 16, a party seeking leave to amend must also satisfy the Rule 15(a) amendment standard. The decision to grant or deny a party’s request to amend is within the court’s discretion.

So, the court here lays out two elements that All Hours must meet—good cause and excusable neglect. Well, how can one show good cause?

The Court here says good cause requires “a greater showing than excusable neglect.” The good cause inquiry focuses on the diligence of the party and the party’s efforts to meet the deadline. Notably, carelessness (simply missing the deadline) does not equal diligence.

Sadly, the Court concluded All Hours failed to establish good cause to amend its Answer after the deadline had passed. All Hours argued the inquiry of good cause should focus on whether Adler would be prejudiced by the delay and, it didn’t seem as though she would. However, the Court found prejudice may be relevant in the excusable neglect analysis, but not for good cause.

I am saddened the Court wouldn’t even let the poor plumbing company collect for the work it did!

The Court did not even walk through the excusable neglect analysis. At the end, All Hours was unable to amend its Answer to include a counterclaim for damages unfortunately.

So a note to all the attorneys out there—act diligently and take these deadlines seriously because courts are looking to you for proof of good cause.


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