IN THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF FLORIDA

RUBEN BELLO,

Plaintiff,

vs.

DHL EXPRESS (USA), INC.,

a Florida Company,

Defendant.

Case No.: 22-cv-23005-DPG

RESPONSE IN OPPOSITION TO DEFENDANT’S PARTIALLY UNOPPOSED 

MOTION FOR LEAVE TO AMEND AFFIRMATIVE DEFENSES AND 

INCORPORATED MEMORANDUM OF LAW

Plaintiff, Ruben Bello, files this his response in opposition to Defendant’s Partially 

Unopposed Motion for Leave to Amend Affirmative Defenses and Incorporated Memorandum of 

Law and in support thereof, states, as follows: 

I. INTROUDCTION

On June 9, 2022, Plaintiff filed the instant action against Defendant for violations of the 

Family and Medical Leave Act (“FMLA”), Count I (FMLA Retaliation) and Count II (FMLA 

Interference) and the Florida Civil Rights Act (“FCRA”), Count III (FRCA Handicap 

Discrimination), in Miami-Dade County, Florida. On September 20, 2022, Defendant removed 

the action to this Court [D.E. 1], and filed its Answer and Affirmative Defenses on September 27, 

2022 [D.E. 7]. On October 14, 2022, the parties submitted their Joint Scheduling Report [D.E. 9], 

On October 21, 2022, this Court entered its Scheduling Order [D.E. 10] setting forth the deadlines 

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in this action, inter alia, the deadline to amend pleadings, December 9, 2022, and the deadline to 

complete discovery, March 17, 2023. On March 2, 2023, Defendant filed its Partially Unopposed 

Motion for Leave to Amend Affirmative Defenses and Incorporated Memorandum of Law. 

Plaintiff strongly opposes Defendant’s untimely attempt to add the defense of “Plaintiff’s failure 

to exhaust administrative remedies as to his disability discrimination claim.” First, Defendant 

failed/refused to promptly assert this affirmative defense, and thus waived it. Next, Defendant 

cannot show good cause for its failure to timely move to assert this defense. Finally, Plaintiff will 

be severely prejudiced should Defendant be allowed to assert this new defense more than nine (9) 

months after the filing of his complaint, and after his deposition was taken. 

II. LEGAL MEMORANDUM

A. Rule 15 --Amendment of Pleadings

Rule 15 of the Federal Rules of Civil Procedure generally governs amendments to 

pleadings. Apart from initial amendments permissible as a matter of course, “a party may amend 

its pleading only with the opposing party’s written consent or the court’s leave. The court should 

freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Nevertheless, “[a] district 

court need not . . . allow an amendment (1) where there has been undue delay, bad faith, dilatory 

motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where 

allowing amendment would cause undue prejudice to the opposing party; or (3) where amendment 

would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Ultimately, a court’s 

decision on whether to grant a litigant the opportunity to amend is discretionary. See Foman, 371 

U.S. at 182. 

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B. Rule 16 --Governs Where Motion to Amend is After Scheduling Order Deadline

However, when a party files a motion to amend after a scheduling order deadline, as is the 

case here, Rule 16 is the proper guide for determining whether a party’s delay may be excused. 

Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 n.2, 1419 (11th Cir. 1998). Rule 16 states that 

requests for leave to amend after the applicable deadline, as set forth in a court’s scheduling order, 

require a showing of “good cause.” Fed. R. Civ. P. 16(b)(4). “This good cause standard precludes 

modification unless the schedule cannot be met despite the diligence of the party seeking the 

extension.” Sosa, 133 F.3d at 1418 (quotation marks omitted); see also Smith v. Sch. Bd. of Orange 

Cty., 487 F.3d 1361, 1366-67 (11th Cir. 2007) (holding that “where a party files an untimely 

motion to amend, [courts] must first determine whether the party complied with Rule 16(b)’s good 

cause requirement,” before considering whether “justice so requires” allowing amendment). If the 

movant “was not diligent, the [good cause] inquiry should end.” Sosa, 133 F.3d at 1418 (quoting 

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).

i. No Good Cause 

Good cause exists when “evidence supporting the proposed amendment would not have 

been discovered in the exercise of reasonable diligence until after the amendment deadline 

passed.” Donahay v. Palm Beach Tours & Transp., Inc., 243 F.R.D. 697, 699 (S.D. Fla. 2007) 

(citation omitted). “[E]ven if the opposing party would not be prejudiced by the modification of a 

scheduling order, good cause is not shown if the amendment could have been timely made.” Id. In 

this regard, a court’s “evaluation of good cause [under Rule 16] is more stringent than its inquiry 

into the propriety of amendment under the more liberal Rule 15.” Id. (citing Sosa, 133 F.3d at 

1418). 

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Moreover, a plaintiff “must establish good cause for their delay in seeking to amend the 

pleadings after the Court’s deadline for amendment before the Court may consider whether to 

grant leave to amend under Rule 15.” Remington v. Newbridge Sec. Corp., No. 13-cv-60384, 2014 

WL 505153, at *12 (S.D. Fla. Feb. 7, 2014). Thus, the Court must first address whether good cause 

exists under Rule 16 before determining whether Defendant should be granted leave to amend 

under Rule 15. Sosa, 133 F.3d at 1418.

Defendant will not be able to establish good cause for its delay in seeking to amend its 

affirmative defenses in this action. First, Defendant submitted its Motion for Leave to Amend on 

March 2, 2023 [D.E. 17], approximately three (3) months after the Court’s deadline to amend.1

See [D.E. 10]. Defendant seeks to assert as an affirmative defense, “failure to exhaust 

administrative remedies on Plaintiff’s claim for disability discrimination,” for the first time 

approximately nine (9) months after Plaintiff’s Complaint was filed in this case. See [D.E. 17].

However, Defendant states that it seeks to add this affirmative defense based on new evidence 

obtained after Plaintiff’s deposition. However, Defendant misleads the Court in this regard. 

Specifically, Defendant was in possession of Plaintiff’s EEOC Charge (the document which now 

forms the basis of Defendant’s request for leave to amend its affirmative defenses) since as early 

as May 29, 2021, the date Defendant submitted their Position Statement in response to Plaintiff’s 

EEOC Charge. Further, Defendant was provided the EEOC Charge again on October 24, 2022, 

the date Plaintiff served its initial disclosures to Defendant in this action. Accordingly, Defendant 

could have complied with the Court’s Scheduling Order deadline of December 9, 2022 to amend 

and timely sought leave to amend its Answer and Affirmative Defenses. However, Defendant 

1 The Court’s Scheduling Order’s deadline to amend was December 9, 2022; and the discovery cut-off 

deadline is March 17, 2023.

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failed to do so. As such, Defendant cannot demonstrate good cause exists for its delay in seeking 

to promptly assert the exhaustion defense, or timely amend its pleading. Instead, now almost 

three (3) months after the Court’s deadline to amend, and a little less than two (2) weeks before 

the close of discovery Defendant moves to amend its pleading. 

ii. Defendant Waived Exhaustion of Administrative Remedies 

Further, by failing to promptly assert the affirmative defense of failure to exhaust 

administrative remedies in this action, Defendant waived the ability to assert the defense 

altogether. Here, Defendant unreasonably delayed asserting the exhaustion defense to Plaintiff’s 

detriment. In Fort Bend County v. Davis, the Supreme Court of the United States held that 

employers who do not timely assert failure to exhaust administrative remedies in employment 

discrimination cases risk waiving the defense. 

iii. Conclusion 

If Defendant were allowed to add this new affirmative defense, it would cause Plaintiff 

unreasonable prejudice and surprise. Based on the foregoing, Plaintiff requests that Defendant’s 

Motion to Amend their Answer and Affirmative Defenses to assert Plaintiff’s failure to exhaust its 

administrative remedies as to disability discrimination be denied as a matter of law, and that this 

affirmative defense be deemed waived.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, Ruben Bello, respectfully requests that Defendant’s Partially 

Unopposed Motion for Leave to Amend Affirmative Defenses to assert Plaintiff’s failure to 

exhaust its administrative remedies as to disability discrimination be denied as a matter of law, 

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and that this affirmative defense be waived, and granting such other and further relief as the Court 

deems just and proper. 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically 

filed with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being 

served on all parties in the manner specified, either via transmission of Notices of Electronic filing 

generated by CM/ECF or in some other authorized manner for those counselor parties who are not 

authorized to receive electronically Notices of Electronic Filing, this 13th day of March 2023. 

By: /s/ Henry Hernandez

 Henry Hernandez, Esq. 

 Florida Bar No. 542601 

Garcia Hernandez, P.A.

2655 S. LeJeune Road, Suite 802 

Coral Gables, FL 33134 

Email: Henry@HHLAWFLORIDA.com

 Tel: 305.771.3374 

 Co-Counsel for Plaintiff

By: /s/ Monica Espino 

Monica Espino, Esq. 

Florida Bar No. 834491

Espino Law 

2250 SW 3rd Ave, Suite 400 

Miami, FL 33129 

Email: me@espino-law.com

Tel: 305.704.3172 

 Co-Counsel for Plaintiff

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