United States District Court

for the

Southern District of Florida

Lisa Donaldson, Plaintiff,

v.

Carnival Corporation, Defendant.

)

)

)

)

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Civil Action No. 20-23258-Civ-Scola

Order On Motion For Leave To File Second Amended Complaint

This matter is before the Court upon the Plaintiff’s motion to file a second 

amended complaint. (ECF No. 20.) The Plaintiff filed her first complaint in this 

matter on August 5, 2020. Thereafter, on August 28, 2020 the Defendant filed a 

motion to dismiss the Plaintiff’s complaint. (ECF No. 7.) On September 10, 2020, 

rather than file a response to the Defendant’ s motion, the Plaintiff filed her first 

amended complaint. (ECF No. 8.) The Defendant then moved a second time on 

October 4, 2020 to dismiss the Plaintiff’s complaint. (ECF No. 13.) Thereafter, the 

Court issued a scheduling order in this matter, setting a deadline of November 9, 

2020 for the parties to “join additional parties or to amend pleadings.” (ECF No. 

14.) The Defendant’s motion to dismiss became ripe for adjudication on October 

28, 2020, and on November 18, 2020, the Court entered an order granting in part 

and denying in part the Defendant’s motion to dismiss. (ECF No. 19.) On 

December 21, 2020, over four weeks after the Court entered its order and a month 

and a half after the deadline to amend pleadings had passed, the Plaintiff filed the 

instant motion seeking leave from the Court to file a second amended complaint 

pursuant to Federal Rule 15(a)(2). 

The Plaintiff’s motion misses the mark. The Defendant’s second motion to 

dismiss put the Plaintiff on notice of her pleading’s shortcomings. At that point, 

the Plaintiff had a choice: stand on her pleadings and oppose the motion to 

dismiss, or request leave to amend to address her pleading’s flaws. As a tactical 

decision, the Plaintiff chose to oppose the motion and lost. The Court will not now 

afford the Plaintiff yet another bite at the apple where she declined “to follow the 

well-trodden procedural path toward amendment.” Eiber Radiology, Inc. v. Toshiba 

Am. Med. Sys., Inc., 673 Fed. App’x 925, 930 (11th Cir. 2016). While it is certainly 

true that our legal system favors the resolution of cases on their merits, that rule 

is not without limits. Especially where, as here, the plaintiff’s own strategic 

decisions dictated the course of this litigation. Here, the Plaintiff reviewed the 

Defendant’s motion to dismiss, vigorously opposed it and then sat back and waited 

to see if the Court would let her pleading stand. Over a month after the Court 

issued its order, the Plaintiff suddenly came up with a litany of new facts that she 

claims will fix her pleading’s deficiencies. The Plaintiff had every opportunity to fix 

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the deficiencies the Defendant identified prior to the Court’s careful and thorough 

review. She should have taken her best shot from the get-go and not waited for 

the Defendant and the Court to have worked through her pleading before 

bothering to inform all involved that she had a better pleading in her quiver, in 

case things went badly for her. At bottom, this delay was a tactical choice that 

does not warrant leave to amend well over a month after the deadline. 

While Rule 15(a)(2) certainly requires “[t]he court [to] freely give leave” to 

amend “when justice so requires,” the Plaintiff has sought leave to amend long 

after the deadline to do so has passed. When leave to amend is sought after the

deadline to amend the pleadings has passed, the movant must do more than

argue leave is due under Federal Rule of Civil Procedure 15(a). That is, the

movant must also show “good cause” under Federal Rule of Civil 16(b)(4) in order 

to obtain the right to amend. See Sosa v. Air Print Sys., Inc., 133 F.3d 1417, 

1418 (11th Cir. 1998); Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only 

for good cause and with the judge’s consent.”). The standard set forth in Rule 

16(b) “precludes modification [of the scheduling order] unless the schedule 

cannot ‘be met despite the diligence of the party seeking the extension.’” See 

Sosa, 133 F.3d at 1418. Thus, “diligence is the key to satisfying the good cause 

requirement.” De Varona v. Discount Auto Parts, LLC, 285 F.R.D. 671, 672–73 

(S.D. Fla. 2012) (Ungaro, J.). Only if “good cause” for an untimely amendment is 

shown under Rule 16(b), does Rule 15(a)’s instruction, that leave should be 

freely given when justice so requires, come into play. See Fed. R. Civ. P. 15(a)(2). 

While the standard under Rule 15(a) is lenient, still, “a motion to amend may be 

denied on numerous grounds such as undue delay, undue prejudice to the 

[opposing party], and futility of the amendment.” See Maynard v. Bd. of Regents, 

342 F.3d 1281, 1287 (11th Cir. 2003) (citations omitted). As discussed above, 

the Plaintiff has failed to satisfy Rule 16(b) as she did not show good cause 

justifying her untimely proposed amendment. She merely made the strategic 

choice to await the Court’s ruling. “Permitting another round of amendments” at 

this point, “would . . . unduly protract [these] proceedings . . . and promote[]

judicial inefficiency.” Eiber, 673 Fed. App’x at 930.

For the foregoing reasons, the Court denies the Plaintiff’s motion for leave 

to amend. (ECF No. 20.)

Done and ordered, in Miami, Florida on January 6, 2021.

Robert N. Scola, Jr.

United States District Judge

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