1

Initially, Sosa also sought review of the trial court's denial of her motion for relief pursuant

to Fed.R.Civ.P. 60(b)(3). Because counsel for the parties now agree that we do not have

jurisdiction to review the trial court's disposition of that motion, we do not address the merits of

that issue. 

United States Court of Appeals,

Eleventh Circuit.

No. 97-2376

Non-Argument Calendar.

Marlene SOSA, Plaintiff-Appellant,

v.

AIRPRINT SYSTEMS, INC., a Florida corporation, Defendant-Appellee.

Jan. 28, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 95-711-CivOrl-22), Anne C. Conway, Judge.

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Appellant Marlene Sosa sued appellee Airprint Systems, Inc. ("Airprint"), her former

employer, alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et

seq. ("ADEA"), and the Florida Civil Rights Act of 1992, Fla. Stat. Ch. 760 ("FCRA"). The district

court dismissed Sosa's case for lack of subject matter jurisdiction because Airprint had too few

employees to be subject to the provisions of the ADEA and FCRA. Sosa does not challenge that

ruling, but instead appeals the district court's denial of her motion to amend the complaint to add

Viking Industries, Inc. as a second defendant.1

 The motion to amend argued that the Viking

Industries and Airprint were so closely integrated that they could be considered a single employer

and that the two companies together employed more than the jurisdictional minimum number of
 2

In her motion for leave to amend, Sosa asked the district court to apply the "excusable

neglect" standard found in Fed.R.Civ.P. 6(b). As we explain below, when a motion to amend is

filed after a scheduling order deadline, Rule 16 is the proper guide for determining whether a

party's delay may be excused. See Johnson, 975 F.2d at 609; Anda v. Ralston Purina, Co., 959

F.2d 1149, 1155 (1st Cir.1992). However, even if we assume, arguendo, that excusable neglect

under Rule 6(b) were the proper standard, we would affirm the district court's decision in this

case. Given the length of Sosa's delay and the fact that it was within her control to name Viking

Industries as a defendant well in advance of the scheduling order's deadline, the district court

was authorized to conclude that Sosa's neglect was not excusable. See Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 1498, 123 L.Ed.2d 74

(1993) (relevant factors in evaluating excusable neglect include the length of the delay and

whether the delay was within control of the movant). 

employees. Noting that Sosa's motion to amend was filed well after the time prescribed by the

court's scheduling order, the district court denied the motion as untimely.

 District courts are required to "enter a scheduling order that limits the time to ... join other

parties and to amend the pleadings ..." Fed.R.Civ.P. 16(b). Such orders "control the subsequent

course of the action unless modified by a subsequent order," Fed.R.Civ.P. 16(e), and may be

modified only "upon a showing of good cause." Fed.R.Civ.P. 16(b). This good cause standard

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

the extension." Fed.R.Civ.P. 16 advisory committee's note; see also Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) ("If [a] party was not diligent, the [good cause]

inquiry should end.").2

 A district court's decision to enforce its pre-trial order will not be disturbed on appeal absent

an abuse of discretion. Santiago v. Lykes Bros. Steamship Co., 986 F.2d 423, 427 (11th Cir.1993).

Because our review of the record reveals that Sosa failed to demonstrate good cause for belatedly

amending her complaint, we find that the district court did not abuse its discretion and thus affirm

the decision below.

The record makes clear that Sosa's failure to comply with the court's scheduling order
resulted from a lack of diligence in pursuing her claim. First, despite Sosa's counsel's asserted

familiarity and experience with the employee numerosity requirement under the ADEA and FCRA,

counsel failed to ascertain the number of Airprint's employees before filing suit and took no steps

to acquire this information early in the discovery period. Even in the face of Airprint's assertion in

its answer that it "no longer has any employees," R.6-3, counsel waited some four months before

propounding written discovery and took no oral depositions until nearly three months after the

deadline for amending the complaint. Counsel thus left to chance a critical component of subject

matter jurisdiction.

Second, the information supporting the proposed amendment to the complaint was available

to Sosa even before she filed suit. Sosa's affidavit filed with the district court, in conjunction with

her motion for leave to amend, indicates that she had been aware of the existence of Viking

Industries since she began working for Airprint. Also, much of the evidence cited by counsel in

support of the motion-e.g., that Airprint and Viking Industries had a common principal address,

CEO, President, Secretary, and Treasurer-was public information obtained from the Florida

Department of State and was readily accessible to Sosa prior to initiating her action against Airprint.

Third, Airprint informed Sosa via interrogatory responses that it had not employed more than

20 employees during the relevant time period and that it was not an employer within the meaning

of the ADEA or the FCRA. Despite receiving this information two weeks prior to the deadline for

amending her complaint, Sosa waited approximately six months before taking steps to preserve her

ability to assert a viable theory of subject matter jurisdiction.

Sosa's brief on appeal does not address good cause under Rule 16(b), but focuses instead

upon the liberal amendment standard set out in Federal Rule of Civil Procedure 15(a). If Sosa's

motion for leave to amend had been filed within the time prescribed by the scheduling order, Rule
15(a) would be our primary focus, as well. However, because Sosa's motion to amend was filed

after the scheduling order's deadline, she must first demonstrate good cause under Rule 16(b) before

we will consider whether amendment is proper under Rule 15(a). Johnson, 975 F.2d at 607-608;

Anda, 959 F.2d at 1155. If we considered only Rule 15(a) without regard to Rule 16(b), we would

render scheduling orders meaningless and effectively would read Rule 16(b) and its good cause

requirement out of the Federal Rules of Civil Procedure.

In light of Sosa's lack of diligence in protecting her rights, Sosa's attempt to add a defendant

outside the time frame prescribed by the scheduling order was not supported by good cause. The

district court thus did not abuse its discretion by denying as untimely Sosa's motion for leave to

amend her complaint.

AFFIRMED.