UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-24000-BLOOM/Torres

ROTHFOS CORPORATION, 

Plaintiff, 

v. 

H&H COFFEE INVESTMENTS, LLC, 

 Defendant. 

__________________________________/ 

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT

THIS CAUSE is before the Court upon Plaintiff Rothfos Corporation’s (“Plaintiff”)

Motion for Leave to Amend Complaint (“Motion”), ECF No. [76]. Defendant H&H Coffee 

Investments, LLC (“Defendant”) filed a Response (“Response”), ECF No. [90], and Plaintiffs filed 

a Reply (“Reply”), ECF No. [93]. The Court has considered the Motion, the opposing and 

supporting submissions, the record, the applicable law, and is otherwise fully advised. For the 

reasons set forth below, the Motion is granted. 

I. BACKGROUND

This action arises from a contractual dispute between Plaintiff and third-party CLR 

Roasters, LLC (“CLR”). Plaintiff alleges that, between February 2019 and December 2021, it 

entered into 49 purchase orders with CLR for 147,950 bags of coffee beans (“Purchase 

Contracts”). ECF No. [9] ¶ 15. CLR allegedly breached those Purchase Contracts by failing to 

deliver the coffee beans. ECF No. [9] ¶¶ 17-18. Thereafter, Plaintiff and CLR reached a “Workout 

Agreement” under which they would “roll over” to the 2021-2022 crop year approximately 33,550 

bags of coffee beans that Plaintiff had already paid for. Id. ¶¶ 19-20. 

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On or about December 24, 2021, Defendant executed a Corporate Guaranty (“Guaranty”) 

as a condition to Plaintiff extending further credit to CLR. Id. ¶¶ 26, 28. As part of that Guaranty, 

Defendant granted a mortgage to Plaintiff over a warehouse in Miami-Dade County (“Mortgaged 

Property”). Id. ¶¶ 3, 28. The Guaranty provides, in relevant part, that H&H “absolutely, 

unconditionally and irrevocably guarantees as primary obligor and not merely as surety, the 

punctual payment, when due ... of all present and future obligations, liabilities, covenants and 

agreements required to be observed, performed, or paid by CLR[.]” ECF No. [9-4] at 2 ¶ 1. The 

Guaranty also provides that “[Defendant] agrees that [Plaintiff] need not attempt to collect any 

Obligations from CLR or any other entity or to realize upon any collateral to enforce the 

obligations hereunder,” and that “[t]he obligations of [Defendant] under this Guaranty are 

independent of the Obligations and [Plaintiff] may bring a separate action or actions against CLR 

and or [Defendant] or any other guarantors.” Id. ¶ 2.

Plaintiff allegedly notified Defendant of CLR’s default of the Purchase Contracts and 

Workout Agreement, but Defendant has failed to cure. ECF No. [9] ¶¶ 39, 40. Plaintiff brings this 

suit for breach of the Guaranty and to foreclose on the Mortgaged Property that was secured 

thereunder. Id. at 10-12. 

On November 6, 2023, Plaintiffs filed the instant Motion seeking leave to file a Second

Amended Complaint to add five additional defendants with leasehold interests in the Mortgaged 

Property—H&H Coffee Export Corp., Cachita Latina Radio Corp., Cachita Universal Studios,

Inc., ENTV USA CR Publishing Corp., and ENTV USA, Inc. (“Putative Defendants”)—to Count 

II of the First Amended Complaint.1 Defendant responds that it does not oppose granting Plaintiff 

leave to amend, but requests that the Court extend its discovery and pre-trial deadlines to allow 

1 Plaintiff also seeks leave to amend in order to delete paragraph 8 of the First Amended Complaint, 

a “now-irrelevant allegation related to subject-matter jurisdiction.” Motion at 1.

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the Putative Defendants to conduct discovery and engage in motion practice. Plaintiff replies that 

the Motion should accordingly be granted for good cause shown, and in light of Defendant’s lack 

of opposition. 

The Court entered a Scheduling Order on January 31, 2023, ECF No. [17]. The Scheduling 

Order established a deadline for the parties to amend pleadings or join parties by March 31, 2023.

Id. The Scheduling Order also established a deadline for the parties to complete discovery by 

October 3, 2023. Id. Plaintiff filed the instant Motion on November 6, 2023, approximately seven 

months after the Court’s March 31, 3023 deadline to amend pleadings. On November 27, 2023, 

the Court entered its Order Scheduling Trial, ECF No. [98]. The Scheduling Order set this case for

trial during the Court’s two-week trial calendar beginning on January 29, 2024, with calendar call 

scheduled for January 23, 2024.2 Id. 

II. LEGAL STANDARD

Generally, Rule 15 of the Federal Rules of Civil Procedure governs amendment 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). A plaintiff should be afforded 

the opportunity to test their claim on the merits as long as the underlying facts or circumstances 

may properly warrant relief. Foman v. Davis, 371 U.S. 178, 182 (1962). However, “[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 

2 The Order Scheduling Trial also required the Parties to file deposition filings and designations by 

January 8, 2024, to file objections or deposition counter-designations by January 12, 2024, and to file a 

pretrial stipulation, a neutral statement of the case, a joint list of witnesses, witness and exhibit lists, and a 

list of stipulated facts on or before January 15, 2024. See generally id. 

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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). In any event, “the grant 

or denial of an opportunity to amend is within the discretion of the District Court.” Foman, 371 

U.S. at 182. 

When “a motion to amend is filed after a scheduling order deadline, [Federal Rule of Civil 

Procedure] 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 (11th Cir. 1998). The “schedule may be modified 

only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). Therefore, “[a] plaintiff 

seeking leave to amend its complaint after the deadline designated in a scheduling order must 

demonstrate ‘good cause’ under Fed. R. Civ. P. 16(b).” S. Grouts & Mortars, Inc. v. 3M Co., 575 

F.3d 1235, 1241 (11th Cir. 2009) (per curiam); see also Remington v. Newbridge Sec. Corp., 2014 

WL 505153, at *12 (S.D. Fla. Feb. 7, 2014) (“Plaintiffs 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.”) (citing Sosa, 133 F.3d at 1419). 

“The good cause standard required to modify a scheduling order precludes modification 

unless the schedule ‘cannot be met despite the diligence of the party seeking the extension.’” De 

Varona v. Disc. Auto Parts, LLC, 285 F.R.D. 671, 672 (S.D. Fla. 2012) (quoting Sosa, 133 F.3d at 

1418); see also Smith v. Sch. Bd. of Orange Cnty., 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 party seeking relief “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)). 

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Thus, when a motion for leave to amend a pleading is filed after the deadline set in a court’s 

scheduling order, the court employs a two-step analysis. Sosa, 133 F.3d at 1419. First, the movant 

must demonstrate good cause under Rule 16(b). 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). Accordingly, “the likelihood of obtaining permission to amend 

diminishes drastically after the court enters a scheduling order with deadlines for amendments that 

have expired.” Id.

Courts consider three factors in assessing diligence: (1) whether the movant failed to 

ascertain facts prior to filing the pleading or failed to acquire information during the discovery 

period; (2) whether the information supporting the proposed amendment was available to the 

movant; and (3) whether the movant delayed in requesting leave to amend even after acquiring the 

information. See Sosa, 133 F.3d at 1419. 

Regarding the second step of the analysis, if the movant demonstrates good cause, the court 

must determine whether an amendment to the pleadings is proper under Rule 15(a) of the Federal 

Rules of Civil Procedure. Id.

III. DISCUSSION

The Court accordingly must determine whether Plaintiff has established good cause for 

filing their Motion over seven months after the Court’s deadline to amend pleadings. Plaintiff 

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contends that good cause exists because Defendant did not disclose the existence of the Putative 

Defendants’ lease for the Mortgaged Property until after the deadline to amend pleadings had 

passed. As stated, Defendant does not oppose granting the Motion, but requests that the Court 

adjust its Scheduling Order to afford the putative defendants “an opportunity to fully defend 

themselves, participate in motion practice, and conduct discovery.” ECF No. [90] at 1. 

As noted, the Scheduling Order imposed a March 31, 3023 deadline to amend pleadings. 

Plaintiff served Defendant with its initial interrogatories on February 10, 2023. ECF No. [77] ¶ 1. 

The Parties subsequently agreed to extend Defendant’s time to respond to Plaintiff’s discovery 

demands until fifteen days after Magistrate Judge Alicia M. Otazo-Reyes ruled on Defendant’s

Motion to Compel Arbitration. Id. ¶ 2. Judge Otazo-Reyes ruled on the Motion to Compel 

Arbitration on May 10, 2023, establishing a May 26, 2023 deadline for Defendant to respond to 

Plaintiff’s discovery requests. See ECF No. [28]. Defendant’s responses on May 25, 2023 and May 

26, 2023 represented that it was not in possession of any leases, subleases, or rental agreements 

from the Mortgaged property, nor was it aware of any such leases or agreements.3 However, on 

June 30, 2023, Defendant produced a copy of a 26-year lease for the Mortgaged Property dated 

July 29, 2021 between Defendant and five Florida corporations—putative defendants H&H Coffee 

Export Corp., Cachita Latina Radio Corp., Cachita Universal Studios Inc., ENTV USA CR 

Publishing Corp., and ENTV USA, Inc. ECF No. [77] at 2; ECF No. [77-3].

The Court finds that good cause exists to permit leave to amend. First, Plaintiff explains 

that it was unable to meet the Court’s March 31, 2023 deadline because it agreed to provide 

3 On May 25, 2023, Defendant’s principal, Alain Piedra Hernandez, stated that he was unaware of 

the names or addresses of any tenants that leased space at the Mortgaged Property from January 1, 2021 

through February 10, 2023. ECF No. [77-1] at 3. Defendant similarly responded to Plaintiff’s first request 

for production on May 26, 2023 by stating that it did not have any “leases, subleases, or rental agreements 

from the Mortgaged [P]roperty from 2021 through the present[]” in its possession, custody, or control. ECF 

No. [77-2] at 4.

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Defendant with an extension to respond to Plaintiff’s discovery requests until after Judge OtazoReyes ruled on the Motion to Compel Arbitration. Moreover, Defendant failed to disclose the 

existence of the putative defendants’ lease for the Mortgaged Property in its May 25, 2023 and 

May 26, 2023 discovery responses, and did not provide this lease to Plaintiff until June 30, 2023. 

This information was therefore unavailable to Plaintiff until June 30, 2023, after the Court’s 

deadline had passed.

4 Although Plaintiff “certainly did not rush to the courthouse upon learning” 

of the Putative Defendants’ lease for the Mortgaged Property, the Court is “reluctant to find that 

leave to amend shall not be permitted[]” in light of Defendant’s failure to disclose this lease in its 

discovery responses. Aceituno v. Carnival Corp., No. 20-CV-23935, 2021 WL 1647890, at *3 

(S.D. Fla. Apr. 27, 2021). Defendant has also indicated that it will not be prejudiced by the 

proposed amendment, provided that the putative defendants are permitted to conduct limited 

discovery and respond to Plaintiff’s foreclosure claim. 

Plaintiff has thus demonstrated good cause under Rule 16(b). The Court also finds that

amending the pleadings is proper under Rule 15(a). For the reasons discussed above, the Court 

determines that Plaintiff did not unduly delay filing the instant Motion, nor will allowing 

amendment cause undue prejudice to Defendant. Accordingly, amendment is warranted. 

Furthermore, the Court agrees that extending its pretrial deadlines is appropriate to afford the 

Putative Defendants the opportunity to conducted limited discovery and engage in motion practice. 

4 Plaintiff presumably could have discovered the existence of the Putative Defendants’ lease for the 

Mortgaged Property without relying solely on Defendant’s discovery responses. However, the Court finds 

that Plaintiff’s timely discovery requests for this information and subsequent reliance on Defendant’s 

representations that no such lease existed demonstrates that Plaintiff was reasonably diligent in attempting 

to ascertain this information before the Court’s deadline. 

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IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that 

1. Plaintiff’s Motion, ECF No. [76], is GRANTED. 

2. Defendant’s Motion for Summary Judgment, ECF No. [74], and Plaintiff’s Motion for 

Summary Judgment, ECF No. [78], are DENIED as moot. 

3. Plaintiff shall file its Second Amended Complaint and proposed summonses for the 

Putative Defendants on or before January 5, 2024. Plaintiff must perfect service on the 

Putative Defendants on or before January 19, 2024. The Putative Defendants shall file 

responses to the Second Amended Complaint—and Defendant must file its answer and 

counterclaim—on or before February 9, 2024. 

4. The Court’s Scheduling Order, ECF No. [17], and Order Scheduling Trial, ECF No. 

[98], are AMENDED as follows:

This case is set for trial during the Court’s two-week trial calendar beginning on August 

26, 2024, at 9:00 a.m. Calendar call will be held at 1:45 p.m. on Tuesday, August 20, 2024. No 

pre-trial conference will be held unless a party requests one at a later date and the Court determines 

that one is necessary. Unless instructed otherwise by subsequent order, the trial and all other 

proceedings in this case shall be conducted in Courtroom 10-2 at the Wilkie D. Ferguson, Jr. 

United States Courthouse, 400 North Miami Avenue, Miami, FL 33128. The parties shall 

adhere to the following schedule:

May 27, 2024 All discovery, including expert discovery, is completed.

June 10, 2024 All pre-trial motions, motions in limine, and Daubert motions (which 

include motions to strike experts) are filed. This deadline includes all 

dispositive motions. 

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August 12, 2024 Parties submit joint pre-trial stipulation in accordance with Local Rule 

16.1(e), proposed jury instructions and verdict form, or proposed findings 

of fact and conclusions of law, as applicable.

DONE AND ORDERED in Chambers at Miami, Florida, on December 28, 2023.

__________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: Counsel of Record

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