United States District Court 

for the 

Southern District of Florida 

Ray F. Bueno, Plaintiff,

v. 

University of Miami et al., 

Defendants.

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Civil Action No. 22-22831-Civ-Scola 

Order Denying Motion for Leave to File Second Amended Complaint 

This matter is before the Court on Plaintiff Ray F. Bueno’s (“Bueno”) 

motion for leave to file a second amended complaint. (Mot., ECF No. 46.) The 

Defendant University of Miami (the “University”) has responded in opposition to 

Bueno’s motion (Resp., ECF No. 52), and Bueno has not replied. Having 

reviewed the record, the parties’ briefs, and the relevant legal authorities, the 

Court denies Bueno’s motion. (Mot., ECF No. 46.) 

This case concerns a student loan debt. On September 6, 2022, Bueno 

filed his complaint, purporting to state a claim under the Fair Credit Reporting 

Act, 15 U.S.C. § 1681s-2(b), against the University of Miami for reporting 

inaccurate information to credit reporting agencies. (Compl. ¶¶ 49-60, ECF No. 

1.)1 On October 20, 2022, the University moved to dismiss the complaint for 

failure to state a claim (ECF No. 18), and on November 17, 2022, Bueno filed a 

response in opposition (ECF No. 25). 

Even though it had earlier entered a scheduling order setting the 

deadline to amend pleadings as November 21, 2022 (ECF No. 20),2 on 

December 7, 2022, the Court sua sponte ordered Bueno to file a more definite 

statement in the form of an amended complaint consistent with Rule 12(e), 

and, in turn, denied the University’s motion to dismiss (ECF No. 18), without 

prejudice, as moot. Bueno filed the amended complaint on December 21, 2022 

(ECF No. 34), and, on January 4, 2023, the University once again moved to 

dismiss (ECF No. 40). Now, rather than respond to the University’s motion to 

dismiss, Bueno moves the Court for leave to file a second amended complaint. 

(Mot., ECF No. 46.) Notably, Bueno never moved the Court for an extension of 

the November 21, 2022, deadline to amend pleadings. 

1 Bueno’s initial complaint also asserted claims against Equifax Information Services, LLC 

(“Equifax”) and Trans Union, LLC (“Trans Union”). On December 21, 2022, Bueno filed notices 

of settlement as to both Equifax and Trans Union (ECF Nos. 32, 33), and on December 29, 

2022, Equifax was dismissed from the case with prejudice (ECF No. 38). In light of the 

foregoing, and because Trans Union has not responded to Plaintiff’s motion for leave to file a 

second amended complaint, the instant order focuses on the University’s opposition.

2 On January 5, 2023, the Court entered an amended scheduling order indicating that the 

deadline to amend pleadings had passed. (ECF No. 43.)

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Where a party seeks leave to amend after the deadline to do so 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 Procedure 16(b) 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

(quoting Fed. R. Civ. P. 16 advisory committee’s note). 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) (cleaned up).

As grounds for his motion, Bueno states that he seeks to file a second 

amended complaint to (1) incorporate evidence learned through discovery, (2) 

clarify factual allegations to address arguments made in the University’s 

pending motion to dismiss, and (3) include exhibits in response to the 

University’s pending motion to dismiss. (Mot. ¶¶ 10–12, ECF No. 46.) The 

University argues that Bueno’s motion should be denied because he has not 

demonstrated good cause for leave to amend as he is required to do following 

the expiration of the deadline to amend pleadings. (Resp. 4–7, ECF No. 52.) The 

Court agrees. 

Bueno’s second and third reasons for amendment past the deadline in 

essence propose that he should be allowed leave to amend to respond to the 

arguments raised in the University’s pending motion to dismiss. These reasons 

are irrelevant to whether he acted diligently in seeking amendment. Thus, of 

Bueno’s stated reasons for seeking amendment, only the first—i.e., to conform 

the pleadings to evidence obtained through discovery—suggests good cause for 

seeking leave to amend after the deadline to do so has passed. If Bueno quickly 

sought leave amend to incorporate information newly learned in discovery, that 

would potentially constitute good cause as required by Fed. R. Civ. P. 16(b). 

See, e.g., Adderley v. Three Angels Broad. Network, Inc., Civil Action No. 18-

23362-Civ-Scola, 2019 U.S. Dist. LEXIS 244522, at *3 (S.D. Fla. Apr. 9, 2019)

(Scola, J.) (granting motion for leave to file second amended complaint where,

the same day on which a second extension of the deadline for leave to amend 

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was ending, the plaintiff received over 1,000 pages in additional discovery from 

the defendants). 

However, Bueno does not identify or point to any particular information 

learned during discovery that he seeks to incorporate in his proposed second 

amended complaint. Instead, he merely states that between November 19, 

2022 (before he filed his amended complaint), and the date of the pending 

motion to amend, the parties have exchanged written discovery and their 

counsel have met to confer regarding discovery. (Mot. ¶¶ 5–6, ECF No. 46.) 

Indeed, a side-by-side comparison of Bueno’s amended complaint (ECF No. 34) 

and his proposed second amended complaint (ECF No. 46-1) reveals little 

difference between the two, and certainly no difference so significant as to 

result from the discovery of novel information.3 

Accordingly, the Court denies Bueno’s motion for leave to file a second 

amended complaint. (Mot., ECF No. 46.) Bueno has fourteen (14) days from 

the date of this order to file a response to the University’s pending motion to 

dismiss (ECF No. 40). 

Done and ordered at Miami, Florida, on February 13, 2023. 

 ________________________________ 

 Robert N. Scola, Jr. 

 United States District Judge 

3 Because the Court finds Bueno’s failure to demonstrate good cause dispositive, it need not 

address the University’s argument that the proposed amendment would be futile. (Resp. 7–8, 

ECF No. 52.)

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