United States Court of Appeals

For the First Circuit

Nos. 02-1571, 03-1262

MICHAEL J. O'CONNELL and ROXANNE O'CONNELL,

Plaintiffs, Appellants,

v.

HYATT HOTELS OF PUERTO RICO 

and DORADO BEACH HOTEL CORPORATION,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Torruella, Lynch and Howard, 

Circuit Judges.

Neil Hoffman with whom Fredric S. Karpf and Law Offices of

Neil Hoffman, were on brief, for appellants.

Jeannette Lopez De Victoria with whom Pinto-Lugo, Oliveras &

Ortiz, P.S.C., was on brief, for appellees.

February 12, 2004
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HOWARD, Circuit Judge. Plaintiffs Michael and Roxanne

O'Connell appeal from the district court's denial of their motion

to amend the complaint. We affirm.

This lawsuit arises out of a slip-and-fall accident that

occurred at the Hyatt Regency Cerromar Beach Resort and Casino in

Dorado, Puerto Rico on November 12, 1997. Plaintiffs, who are

citizens of Pennsylvania, filed this action in the Pennsylvania

state court on November 9, 1999. The complaint originally named as

defendants Hyatt Corporation, Hyatt International Corporation,

Hyatt Hotels Corporation, and H. Group Holding, Inc. (the "original

defendants").

On December 28, 1999, the original defendants invoked the

federal courts' diversity jurisdiction to remove this case to the

United States District Court for the Eastern District of

Pennsylvania. See 28 U.S.C. § 1441. Several months later, on

March 7, 2000, the parties filed a stipulation to (1) dismiss the

original defendants from the action, (2) amend the caption of the

complaint to name Hyatt of Puerto Rico and Dorado Beach Hotel as

the proper defendants, and (3) transfer the case to the United

States District Court for the District of Puerto Rico. The parties

also stipulated that plaintiffs would amend the complaint to assert

allegations against these new defendants within thirty days of the

transfer. The federal court in Pennsylvania approved the
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stipulation and transferred the case to the District Court of

Puerto Rico on March 15, 2000.

Notwithstanding the stipulation, nothing further

transpired until November 8, 2000, when the Puerto Rico district

court entered a scheduling order pursuant to Fed. R. Civ. P. 16(b).

The scheduling order required that motions to amend the pleadings

had to be filed by November 21, 2000, and that any late motions to

amend the pleadings would be allowed only upon a demonstration of

good cause for the delay. Plaintiffs did not move to amend the

complaint before the November 21, 2000 deadline expired. Because

plaintiffs did not amend the complaint, the complaint continued to

assert allegations only against the original defendants.

On April 4, 2001, Hyatt Corporation, one of the original

defendants, moved to dismiss the complaint on personal jurisdiction

grounds. See Fed. R. Civ. P. 12(b)(2). In response, plaintiffs

moved to amend their complaint to state allegations against the new

defendants. On March 20, 2002, the district court denied Hyatt

Corporation's motion to dismiss the complaint because the original

defendants already had been dismissed pursuant to the stipulation

entered prior to the case's transfer. See Fed. R. Civ. P.

41(a)(1)(ii). In the same order, the court denied plaintiffs'

motion to amend the complaint because, inter alia, plaintiffs had

flouted the scheduling order deadline and had "provided no

explanation whatsoever for the long delay." The court subsequently
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denied plaintiffs' motion to reconsider and entered judgment on

January 10, 2003. Plaintiffs have timely appealed.

We review the denial of a motion to amend the pleadings

for an abuse of discretion and will affirm if any adequate reason

for the denial is apparent from the record. See Acosta-Mestre v.

Hilton Int'l of P.R., 156 F.3d 49, 51 (1st Cir. 1998). In

contesting the district court's ruling, plaintiffs highlight the

liberal amendment policy underlying Fed. R. Civ. P. 15(a),

contending that the denial of their motion was inconsistent with

the permissive bent of this Rule.

Rule 15(a) provides that leave to amend a complaint is

permitted, as a matter of course, before the opposing party has

filed a responsive pleading. Once a responsive pleading has been

filed, subsequent amendments require court approval, and such

approval is "freely given when justice so requires." See Fed. R.

Civ. P. 15(a). We have often described this standard as reflecting

the "liberal" amendment policy underlying Rule 15. See, e.g.,

Wilson v. Mendon, 294 F.3d 1, 7 n.16 (1st Cir. 2002); Mills v.

Maine, 118 F.3d 37, 53 (1st Cir. 1997); USM Corp. v. GKN Fasteners

Ltd., 578 F.2d 21, 23 (1st Cir. 1978).

Plaintiffs focus on Rule 15(a), emphasizing the Rule's

pro-amendment orientation. But plaintiffs have pinned their hopes

on the wrong rule. The standard applicable here is not the "freely
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given" Rule 15(a) standard but the more stringent "good cause"

standard under Fed. R. Civ. P. 16(b). 

Rule 16(b) requires that the district court enter a

scheduling order within 120 days of service of the complaint. The

scheduling order sets the deadlines for subsequent proceedings in

the litigation, including amending the pleadings. See Fed. R. Civ.

P. 16(b)(1). The purpose of limiting the period for amending the

pleadings is to assure "that at some point both the parties and the

pleadings will be fixed." Advisory Committee Notes to the 1983

Amendments to Fed. R. Civ. P. 16(b). The Rule does recognize,

however, that the parties will occasionally be unable to meet these

deadlines because scheduling order deadlines are established

relatively early in the litigation. See id. Therefore, the court

may extend a scheduling order deadline on a showing "of good cause

if the [deadline] cannot reasonably be met despite the diligence of

the party seeking the extension." Id.

Several courts have held that Rule 16(b)'s "good cause"

standard, rather than Rule 15(a)'s "freely given" standard, governs

motions to amend filed after scheduling order deadlines. See Leary

v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003); S&W Enters. v.

SouthTrust Bank of Ala., 315 F.3d 533, 536 (5th Cir. 2003); Parker

v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000); In

re Milk Prods. Antitrust Litig., 195 F.3d 430, 437-38 (8th Cir.

1999); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.
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1998) (per curiam); Johnson v. Mammoth Recreations, Inc., 975 F.2d

604, 608 (9th Cir. 1992); cf. Riofrio Anda v. Ralston Purina Co.,

959 F.2d 1149, 1154-55 (1st Cir. 1992) (affirming denial of motion

to amend filed after expiration of scheduling order deadline

because allowing amendment would be inconsistent with purposes of

Rule 16(b)). The rationale is that application of the "good cause"

standard preserves the integrity and effectiveness of Rule 16(b)

scheduling orders. See Sosa, 133 F.3d at 1419.

"In an era of burgeoning case loads and thronged dockets,

effective case management has become an essential tool for handling

civil litigation." Towers Ventures, Inc. v. Westfield, 296 F.3d

43, 45 (1st Cir. 2002). Rule 16 provides the district courts with

many of the devices necessary to manage its docket. See RosarioDiaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998). For Rule

16(b) to operate effectively, litigants cannot be permitted to

treat a scheduling order as a "frivolous piece of paper idly

entered, which can be cavalierly disregarded without peril."

Johnson, 975 F.2d at 610 (internal citations and quotations

omitted). As we observed in Riofrio Anda, 959 F.2d at 1155,

liberally granting motions to amend the pleadings--filed after a

party has disregarded the scheduling order deadline--would

effectively "nullif[y] the purpose of Rule 16(b)(1)." 

Unlike Rule 15(a)'s "freely given" standard, which

focuses mostly on the bad faith of the moving party and the
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prejudice to the opposing party, see Foman v. Davis, 371 U.S. 178,

182 (1962), Rule 16(b)'s "good cause" standard emphasizes the

diligence of the party seeking the amendment. See Rosario-Diaz,

140 F.3d at 315; accord Leary, 349 F.3d at 906; Parker, 204 F.3d at

340. Prejudice to the opposing party remains relevant but is not

the dominant criterion. See Johnson, 975 F.2d at 609.

"[I]ndifference" by the moving party "seal[s] off this avenue of

relief" irrespective of prejudice because such conduct is

incompatible with the showing of diligence necessary to establish

good cause. Rosario-Diaz, 140 F.3d at 315. We review the district

court's refusal to extend a Rule 16(b) scheduling order for good

cause under an abuse of discretion standard. See Vulcan Tools of

P.R. v. Makita U.S.A., Inc., 23 F.3d 564, 565 (1st Cir. 1994).

Plaintiffs suggest that, "due to circumstances not within

[their] control . . . the amended Civil Action was never filed by

the filing deadline." While plaintiffs are not altogether clear

on what stopped them from timely moving to amend, they appear to

blame the error on a failure of communication between local counsel

in Puerto Rico and lead counsel in Pennsylvania. Under the facts

of this case, this excuse does not establish good cause. Cf.

Rosario-Diaz, 140 F.3d at 315 ("Attorneys represent clients, and,

as a general rule, an attorney's blunder binds her client."). 

Plaintiffs stipulated that they would seek to amend the

complaint to include allegations against the new defendants within
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thirty days of the transfer. Plaintiffs were thus aware of their

obligation to move to amend. Nevertheless, they waited over a year

after the transfer and five months after the scheduling order

deadline to act. Such a long and unexplained delay vindicates the

district court's conclusion that plaintiffs were not diligently

pursuing this litigation. See, e.g., Leary, 349 F.3d at 908

(affirming district court's refusal to find good cause where

plaintiff was "obviously aware of the claim for many months" but

failed to move to amend the complaint until defendant moved for

summary judgment); Sosa, 133 F.3d at 1419 (affirming district

court's refusal to find good cause where "information supporting

the proposed amendment to the complaint was available [to

plaintiff] even before she filed suit"); Johnson, 975 F.2d at 609

(affirming district court's refusal to find good cause where

plaintiff knew that it had named the wrong party but failed to

amend complaint within the scheduling order deadline). 

Affirmed.