1

Because the Board defendants filed their motion within the time allowed by the

Rule 16(b) scheduling order, they need not show good cause as a predicate to amendment. 

See Fed. R. Civ. P. 16(b)(4). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

PARK CITY WATER AUTHORITY, )

INC., )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 09-0240-WS-M

 )

NORTH FORK APARTMENTS, L.P., )

et al., )

 )

Defendants. )

ORDER

This matter is before the Court on the motion of the Board defendants for leave to

amend their answer. (Doc. 53). The plaintiff has filed a brief in opposition, (Doc. 56),

and the motion is ripe for resolution.

The motion seeks leave to amend, and “[t]he court should freely give leave when

justice so requires.” Fed. R. Civ. P. 15(a)(2).1

 This language “evinces a bias in favor of

granting leave to amend,” Dussouy v. Gulf Coast Investment Corp., 661 F.2d 594, 597 (5th

Cir. 1981), and Eleventh Circuit law is clear that leave to amend should be given under

this rule “[i]n the absence of any apparent or declared reason — such as undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of amendment, etc.” McKinley v. Kaplan, 177 F.3d

1253, 1258 (11th Cir. 1999) (internal quotes omitted). The plaintiff’s position that the

Board defendants “must provide the court with some basis to exercise its discretion,”

(Doc. 56, ¶ 2), is rejected as contrary to this authority. It is instead up to the plaintiff to

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In a similar vein, the plaintiff suggests the motion violates Rule 7(b)(1), which

requires that a motion “state with particularity the grounds for seeking the order.” (Doc.

56, ¶ 3). While Rule 7(b) applies to motions under Rule 15(a), “[t]he particularity

requirement of Rule 7(b) is met by submitting a proposed amendment with the motion for

leave to amend the complaint.” Wolgin v. Simon, 722 F.2d 389, 394 (8th Cir. 1983); see

also Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (in order to comply with

Rule 7(b), “[a] motion for leave to amend should either set forth the substance of the

proposed amendment or attach a copy of the proposed amendment.”). The Board

defendants filed a proposed amended complaint, (Doc. 53, Exhibit A), and so complied

with Rule 7(b). Moreover, the motion expressly asserts that the Board defendants seek

leave to amend in order to include several additional affirmative defenses that “have

become applicable in this case in part because of the pleadings and positions taken by the

Plaintiff and parties in collateral litigation currently pending in the Circuit Court of

Baldwin County.” (Doc. 53, ¶ 4). Rule 7(b) requires no more. 

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articulate some reason that amendment should be denied.2

The plaintiff asserts it will be substantially disadvantaged or prejudiced if

amendment is allowed, because it has tailored its case preparation to the original 14

affirmative defenses asserted by the Board defendants and because it might have sought

different discovery limits had it known the Board defendants would add eleven more

affirmative defenses now. (Doc. 56, ¶¶ 5-6). Discovery, however, extends into

September, (Doc. 48), so the plaintiff has adequate time to explore the new defenses. 

Moreover, the plaintiff itself requested the Magistrate Judge to allow the defendants until

June 3 to amend their pleadings, (Doc. 43 at 5, ¶ 6), so it can hardly complain that the

Board defendants filed their motion on May 14. The plaintiff identifies no case

approving denial of leave to amend under similar circumstances.

The plaintiff’s only other argument is that the Board defendants should have

asserted several of their affirmative defenses in their previously filed motion to dismiss

and that others (apparently advanced by other defendants) were rejected in the Court’s

order on motion to dismiss. (Doc. 56, ¶ 7). The plaintiff presumably intends thereby to

invoke futility as a ground to deny amendment. This argument is insufficiently developed

to allow its consideration by the Court and thus inadequate to justify denial of leave to

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amend. The plaintiff remains free to seek dismissal of any particular affirmative defense

or defenses as appropriate.

For the reasons set forth above, the motion for leave to amend is granted. The

Board defendants are ordered to file and serve their amended answer on or before June 1,

2010. 

 

DONE and ORDERED this 26th day of May, 2010.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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