IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RETTA MARLENE POWERS, et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 09-0556-WS-C

 )

AUTOMOTIVE COMPUTER )

SERVICES, INC., et al., )

 )

Defendants. )

ORDER

This matter is before the Court on the plaintiffs’ motion for leave to amend the

complaint. (Doc. 58). The defendants have filed responses and the plaintiff a reply,

(Docs. 61-63), and the motion is ripe for resolution. After carefully considering the

foregoing and other relevant material in the file, the Court concludes that the motion is

due to be granted. 

The amended complaint, brought under the Fair Labor Standards Act, was filed by

five plaintiffs, on their own behalf and others similarly situated, against defendants

Automotive Computer Services, Inc. (“Automotive”) and Express Services, Inc.

(“Express”). (Doc. 44). The amended complaint alleges that the defendants “have had a

uniform policy and practice of consistently requiring all Technicians to work over 40

hours a week when performing Training Weeks and Go Live Weeks at car dealerships for

a salaried amount without overtime compensation.” (Id., ¶ 10 (emphasis added)). The

proposed second amended complaint would expand this allegation by deleting the

language italicized above. (Doc. 58, Exhibit A, ¶ 10). Through the amendment, the

plaintiffs “seek to clarify that they seek recovery for all hours worked in excess of forty in

any given week, regardless of the location those hours were worked.” (Doc. 58 at 2).

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Cornelius v. Home Comings Financial Network, Inc., 293 Fed. Appx. 723, 728

(11th Cir. 2008). 

2

When the Eleventh Circuit has noted litigants’ prior awareness of their proposed

claims as a circumstance to be weighed in determining whether they had exhibited undue

delay, it has done so in the context of motions to amend filed long after the deadline

established by the Rule 16(b) scheduling order had expired. E.g., Caruthers v. BSA

Advertising, Inc., 357 F.3d 1213, 1217-18 (11th Cir. 2004); McGregor v. Autozone, Inc.,

180 F.3d 1305, 1308-09 (11th Cir. 1999). Those cases do not apply here, since the motion

was filed over two months prior to that deadline. 

-2-

The motion for leave to amend was filed over two months before the deadline

provided by the Rule 16(b) scheduling order. (Doc. 47, ¶ 4). Accordingly, the plaintiffs

need not satisfy the “good cause” standard of Rule 16(b). Instead, they need only satisfy

Rule 15(a)(2), which provides that “[t]he court should freely give leave when justice so

requires.” 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). 

Defendant Express “does not object to Plaintiffs’ proposed amendment.” (Doc. 62

at 3). Defendant Automotive complains that granting the motion will eliminate one of its

objections to the plaintiffs’ pending motion to facilitate notice. (Doc. 61 at 2). That, of

course, is not grounds to deny leave to amend, but Automotive continues that the

plaintiffs have not shown they were unable to word their original complaint — filed some

five months previously — as broadly as the proposed second amended complaint. (Id. at

3). While “[a]n amendment filed approximately two years after the complaint it seeks to

amend is an unreasonably delayed one,”1

 Automotive offers no authority for the

proposition that any delay by the plaintiffs was undue.2

 It could scarcely be so, 

considering that the motion for leave to amend was filed: (1) less than six weeks after the

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scheduling order was entered; (2) barely a week after the defendants’ initial disclosures

were provided; and (3) eight months before the discovery period expires.

Automotive also argues that the second amended complaint is offered “solely for

the dilatory motive [sic] of trying to increase the opt-in class.” (Doc. 61 at 4). A dilatory

motive is one to delay the future progress of the proceedings, and Automotive does not

explain how the proposed amended complaint could possibly accomplish such delay. 

For the reasons set forth above, the motion for leave to amend the complaint is

granted. The plaintiffs are ordered to file and serve the second amended complaint on

or before March 9, 2010. 

DONE and ORDERED this 4th day of March, 2010.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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