Hi guys! Brittany here.
An interesting case came out the other day and I thought I’d share it with you all.
Jill Adler sued All Hours Plumbing Drain Cleaning, alleging that All Hours violated the TCPA by sending pre-recorded telemarketing messages without obtaining the required prior express written consent.
But I’m not here to say whether an ATDS was used or whether Adler gave her consent to be contacted by All Hours. Not as fun, I know. Instead, I’m going to talk about amendments. Specifically, All Hours made a motion to change its response after the deadline stated in the programming order.
As I’m sure most of you know, federal court scheduling orders are court orders that determine the course of litigation. In other words, a trial order establishes important dates and deadlines for the parties to meet before trial. More specifically, a scheduling order generally contains the time allowed for the parties to modify the pleadings.
In this case, All Hours filed its response on April 16, 2021, which did not contain any counterclaim. The scheduling order contained a deadline, which provided that the last day parties could amend the pleadings was July 6, 2021.
On March 29, 2022, All hours filed a motion to amend its response to include a counterclaim for quantam meruit (damages). Although nearly nine months have passed since the deadline, All Hours argued that they had recently learned of new information that required the amendment. That seems reasonable to me.
Under Federal Rule of Civil Procedure 16(b)(4), “the court may extend time in a scheduling order if the mover is able to show ‘good cause’ for such modification.” However, where a party seeks to extend the time to “do ‘any act’ after the expiry of the deadlinethe court may extend the time limit only on presentation of good cause and that the inaction was due to excusable negligence.”
In addition to Rule 16, a party seeking leave to amend must also meet the amending standard of Rule 15(a). The decision to grant or deny a party’s request for variation is within the discretion of the court.
Thus, the court here sets out two elements that all hours must meet – good cause and excusable negligence. Well, how can one show a good cause?
The Court says here that good cause requires “a greater demonstration than excusable negligence”. The investigation for cause concerns the diligence of the party and its efforts to meet the deadline. Notably, neglect (just missing the deadline) is not synonymous with diligence.
Unfortunately, the Court found that All Hours failed to show good cause to change its response after the deadline had expired. All Hours argued that the just cause inquiry should focus on whether Adler would be hurt by the delay and, it didn’t look like she would. However, the Court found that harm may be relevant in the excusable negligence analysis, but not for cause.
I’m saddened that the Court didn’t even let the poor plumbing company collect for the work they did!
The Court did not even go through the excusable negligence analysis. In the end, All Hours was unable to amend its response to include a counterclaim for damages, unfortunately.
So, a note to all lawyers – act diligently and take these deadlines seriously because the courts are looking to you for proof of just cause.