IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DONNA DORSEY DAVIS, :

as an individual and derivatively upon :

behalf of I-65 Properties, Inc., :

:

Plaintiff, :

:

vs. : Case No. 2:06-cv-766-MHT

:

RICHARD M. DORSEY, as an individual :

and CD&O, LLC, as a necessary party, :

:

Defendants. :

DEFENDANT’S OBJECTION TO 

PLAINTIFF’S MOTION TO JOIN DORSEY MOTOR SALES, INC. 

AS A NECESSARY PARTY

COMES NOW Richard M. Dorsey, Defendant in the above-styled cause, and submits this

Objection to Plaintiff’s Motion to Join Dorsey Motor Sales, Inc. as a Necessary Party. In support

of said objection, Defendant states as follows:

1. This action was filed by Plaintiff on August 25, 2006. 

2. Following the Parties’ Rule 26(f) Planning Meeting, this Court entered the Uniform

Scheduling Order which set various deadlines to which the parties are subject

during the course of this litigation. 

3. The November 2, 2006 Order stated in pertinent part as follows:

Please read this order carefully. These deadlines and

responsibilities may not be changed without leave of the

court. All parties are expected to comply with each and

every provision of this order in a timely manner, and

extensions will be granted in only extraordinary and

unforeseeable circumstances.

* * *

Section 4. Any motions to amend the pleadings and to add

parties shall be filed on or before February 8, 2007.

Case 2:06-cv-00766-MHT-TFM Document 57 Filed 06/25/2007 Page 1 of 4
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4. Following discovery in this matter, the Defendant moved for summary judgment,

and with Plaintiff’s response thereto, same is pending before this Honorable Court

for adjudication.

5. The pretrial of this matter was held on June 15, 2007 and the trial of this matter is

set for July 23, 2007.

6. On June 19, 2007, Plaintiff filed a motion seeking to add Dorsey Motor Sales, Inc.

as a necessary party-Defendant to this matter.

7. Pursuant to this Court’s order dated June 19, 2007, this objection follows.

8. When considering a party’s motion to amend his complaint after the entry of a

scheduling order, the Eleventh Circuit has adopted the “good cause” standard set

out in Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11 Cir. 1998): th

[W]here a party’s motion to amend is filed

after the deadline for such motions, as

delineated in the court’s scheduling order, the

party must show good cause why leave to

amend the complaint should be granted.

Id. at 1419 n.2.

This good cause standard precludes

modification unless the schedule cannot “be

met despite the diligence of the party seeking

the extension.”...(“If [a] party was not diligent,

the [good cause] inquiry should end.”)

Id. at 1418. (Internal citations omitted)(cited with approval by Wallace v. UAW Local

1639, 2007 WL 1793587)(S.D.Ala. June 18, 2007); Smith v. School Bd. of Orange

County, 2007 WL 1583873 (11 Cir. 2004); Nobles v. Rural Community Ins. th

Services, 303 F.Supp.2d 1279 (M.D.Ala. 2004); Duvall Chemicals, Inc. v. Osterman

& Co., 2007 WL 778554 (11 Cir. 2007); Saewitz v. Lexington Ins. Co., 133

th

Fed.Appx. 695 (11 Cir. 2005); Alexander v. AOL Time Warner, 132 Fed.Appx. 267

th

(11 Cir. 2005); Maynard v. Bd. of Regents, 342 F.3d 1281 (11 Cir. 2003). th th

9. Plaintiff’s late motion to add Dorsey Motor Sales, Inc. as a Defendant – made more

than four months after the deadline set for such an attempt, four days after pretrial

Case 2:06-cv-00766-MHT-TFM Document 57 Filed 06/25/2007 Page 2 of 4
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and one month before trial – is violative of Section 4 of this Court’s Scheduling

Order.

10. Accordingly, Plaintiff must demonstrate good cause why this amendment should be

allowed.

11. There can be no dispute that Plaintiff was aware of the identity and connection of

Dorsey Motor Sales to this action at the time this action was filed, and therefore,

Plaintiff has no excuse for why Dorsey Motor Sales was not made a defendant in

a timely manner.

12. Additionally, Plaintiff has not offered any justification or excuse for her failure to

timely seek this amendment before now. 

13. Absent Plaintiff’s ability or even attempt to demonstrate good cause for her more

than four month delay in seeking to add Dorsey Motor Sales as a defendant,

Plaintiff’s Motion is due to be denied.

14. Lastly, it would be highly prejudicial to force Dorsey Motor Sales to become a

Defendant in this matter a mere one month before the trial date and after the

conclusion of discovery and the submission of dispositive motions.

Wherefore the premises having been considered, Defendants respectfully request the Court

to deny Plaintiff’s Motion to Add Dorsey Motor Sales as Necessary Party as untimely.

Respectfully Submitted this 25 day of June, 2007.

th

RICHARD M. DORSEY, as an individual, and

CD&O, LLC, as a necessary party,

/s/ Clifford W. Cleveland 

CLIFFORD W. CLEVELAND 

OF COUNSEL:

CLEVELAND & COLLEY, P.C.

744 East Main Street

Prattville, AL 36067

(334) 365-1500 phone

(334) 365-1601 fax

Case 2:06-cv-00766-MHT-TFM Document 57 Filed 06/25/2007 Page 3 of 4
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CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the foregoing Objection to Plaintiff’s Motion

to Add Dorsey Motor Sales as Necessary Party with the Clerk of the Court for the United States

District Court, for the Middle District of Alabama, Northern Division, using the CM/ECF system

which will send notification of such filing to Lindsay B. Erwin, Esquire (lindsayerwin@gmail.com)

and James Edward Roberts, Esquire (attyjuris@aol.com) this the 25 day of June, 2007.

th

/s/ Clifford W. Cleveland 

OF COUNSEL

Case 2:06-cv-00766-MHT-TFM Document 57 Filed 06/25/2007 Page 4 of 4