1 Plaintiff’s counsel represents that he made a “strategic decision” not to plead

causes of action for breach of the Collective Bargaining Agreement or violation of the National

Labor Relations Act in the original Complaint because “insufficient information existed” and, at

any rate, “any ‘duty of fair representation’ claim was probably barred by a 6 month statute of

limitation[s].” (Motion, at 2.)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RUFUS ENGLISH, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 05-0312-WS-B

 )

CSA EQUIPMENT COMPANY LLC, )

et al., )

 )

Defendants. )

ORDER

This matter is before the Court on plaintiff’s Motion to Supplement or Amend the

Complaint (doc. 31). The Motion has been briefed and is ripe for disposition at this time.

I. Background.

On May 27, 2005, plaintiff Rufus English (“English”), by and through counsel, filed an

18-page, 75-paragraph Complaint (doc. 1) against defendants CSA Equipment Company LLC

(“CSA”) and ILA Local 1459 (“ILA”) (collectively, “Defendants”). The Complaint enumerated

four causes of action, including a claim of race discrimination pursuant to Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.; a race discrimination claim under

42 U.S.C. § 1981; an age discrimination claim pursuant to the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621 et seq.; and a state-law claim for emotional distress.1

 The

factual underpinnings of these claims lie, inter alia, in English’s contentions that he was

furloughed from his job on January 4, 2002, that a white co-worker with less seniority was

rehired immediately while English was not, and that CSA wrongfully failed to rehire him when

two Regular Clerk positions became available in March 2004. English maintains that

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 1 of 11
2 The Court’s task in considering the proposed amendment has been hindered by

the vagueness with which that amendment is pleaded. Although rich in factual detail, the 10-

page proposed amendment only hints at the legal theories animating the newly asserted Count

Five. That cause of action is enigmatically labeled “Collective Bargaining Agreement,” quotes

large chunks of §§ 7 and 8 of the NLRA, and is silent as to which form of claim is asserted

against which defendant. At most, the Court gathers from the proposed pleading that English

would charge both Defendants with breaching the CBA and engaging in sundry unfair labor

practices. Any other nuance to plaintiff’s proposed Count Five has been camouflaged by the

impenetrable manner in which the claim was pleaded.

3 Paragraph 78(a) of the proposed amendment alleges that the date of this discharge

was “January 4, 2004.” (Id.) That date is apparently a typographical error, inasmuch as

Paragraphs 36(j) and 36(n) fix the date of these events as January 4, 2002.

-2-

Defendants’ alleged course of conduct was motivated by discriminatory animus concerning his

race (African-American) and age (60 at the time of filing the Complaint).

On August 25, 2005, then-Magistrate Judge DuBose entered a Rule 16(b) Scheduling

Order (doc. 14) providing, in pertinent part, that “[a]ny motion for leave to amend the pleadings

or to join other parties must be filed on or before November 7, 2005.” (Doc. 14, ¶ 5.) Plaintiff’s

counsel did not object to this deadline, which conformed to the cutoff date requested by the

parties via their Report of Parties’ Planning Meeting (doc. 12). At no time prior to November 7,

2005 did plaintiff seek enlargement of that deadline or indicate that additional discovery efforts

were necessary before he could finally determine whether amendments to his pleading might be

warranted.

On January 24, 2006, some 78 days after the applicable Scheduling Order deadline had

lapsed, plaintiff filed a Motion to Supplement or Amend the Complaint (doc. 31), seeking to

interpose new causes of action for violation of the National Labor Relations Act, 29 U.S.C. §§

157 and 158 (“NLRA”), and breach of the Collective Bargaining Agreement (“CBA”) between

CSA and ILA.2

 In particular, a proposed Paragraph 78 of the Complaint alleges that Defendants

violated the CBA and “the National Labor law” in no fewer than 10 respects, including: (i)

discharging English and two less senior employees in January 2002,3 then immediately rehiring

the least senior of the three (John Hayes) in a “rouge [sic]” to evade CBA seniority requirements;

(ii) rehiring Hayes without Union approval; (iii) hiring Jones Franklin over English in June

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 2 of 11
4 Plaintiff’s filings interchangeably refer to this individual as “Gibbons” and

“Givens”. (Compare doc. 31, ¶ 36(v) et seq. with doc. 36, at 10-11.) The Court has no idea

which is correct. For consistency’s sake, this Order will use “Gibbons.”

5 Three technical defects plague the reply brief. First, plaintiff’s 19-page

submission is in derogation of Local Rule 7.1(b), which provides that “[a] reply brief by movant

shall not exceed fifteen (15) pages in length.” Id. Plaintiff’s counsel neither requested leave to

exceed that limitation, nor did he explain why he could not effectively rebut defendants’

arguments within the allotted limit. Second, the nearly 100 pages of deposition excerpts

accompanying the reply brief are not copies of pages from the official transcript, but are instead

evidently pasted from a diskette copy into a word processor. Third, much of what plaintiff has

chosen to submit is of negligible benefit in determining the propriety of the requested

amendment, but merely serves to clutter the court file with discovery materials that have no more

than a tangential bearing on the matter at hand, in contravention of Local Rule 5.5(c)’s directive

that, “[i]f discovery materials are germane to any motion or response, only the relevant portions

of the material shall be filed ....” Id. Notwithstanding these shortcomings, the Court in its

discretion will consider the reply brief and attachments as filed. 

-3-

2002; (iv) planning to hire Gerry Gibbons4

 whenever a Company Clerk position became

available, without regard to seniority and qualifications; (v) ILA engaging in a “scheme” to

reduce the applicant pool for Company Clerk positions to improve Gibbons’ odds of hire; (vi)

ILA recommending an applicant for hire; (vii) CSA disqualifying an applicant so that Gibbons

could be hired; (viii) “discriminatorily hiring Mr. Gibbons over Mr. English” despite the latter’s

superior qualifications; (ix) arbitrarily and capriciously hiring Gibbons over English despite the

latter’s superior qualifications; and (x) selecting “grievance members who was [sic] biased and

incapable of reaching a fair decision.” (Proposed Amendment (doc. 31), ¶ 78.) Plaintiff

explains that these causes of action are “newly discovered claims,” that the discovery process

illuminated these claims, and that they “became more transparent” after a spate of depositions

taken in mid-January 2006. (Motion, at 2.) Defendants have filed separate memoranda of law

(docs. 34, 35) and exhibits in opposition to the Motion, and plaintiff has submitted a reply brief

(doc. 36), including extensive evidentiary submissions, in support of his position.5

II. Rule 16(b) Analysis.

A. Legal Standard.

The parties’ briefs focus almost exclusively on the liberal amendment standard of Rule

15, Fed.R.Civ.P. In so doing, they overlook the key threshold issue of whether the Motion can

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 3 of 11
6 See also Morrison v. Exxonmobil Corp., 2006 WL 42142, *3 (M.D. Ga. Jan. 6,

2006) (“When a motion to amend is filed after a scheduling order deadline, as is the case here,

Rule 16 is the proper guide for determining whether a party's delay may be excused.”);

Richardson v. Georgia Pacific Corp., 2005 WL 1278833, *1 (S.D. Ala. May 26, 2005) (“A

motion for leave to amend filed after the deadline for amending pleadings set forth in the

scheduling order is governed by the stricter standard for amendment set forth in Rule 16(b)

rather than the liberal amendment standard set out in Federal Rule of Civil Procedure 15(a).”);

Nobles v. Rural Community Ins. Services, 303 F. Supp.2d 1279, 1283 (M.D. Ala. 2004) (“It is

only after the court addresses whether the proposed amendment may be granted under Rule 16

that the court is to determine whether it is proper under Rule 15.”).

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withstand scrutiny under Rule 16(b), which forbids modification of a scheduling order absent a

showing of “good cause.” Under the law of this Circuit, the Rule 16 hurdle must be surmounted

before the Rule 15 question may be considered. See Sosa v. Airprint Systems, Inc., 133 F.3d

1417, 1419 (11th Cir. 1998) (“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)”); Alexander v. AOL Time Warner, Inc.,

2005 WL 1182950, *1 (11th Cir. May 19, 2005) (when granting leave to amend a complaint

“would require modifying a Rule 16 scheduling order, the movant must first show good cause”).6

 The deadlines set forth in Rule 16(b) scheduling orders are firm settings that must be taken

seriously by both the Court and the litigants appearing before it. To allow parties to circumvent

those long-expired deadlines merely by invoking the liberal leave to amend policy espoused by

Rule 15(a) would be to “render scheduling orders meaningless and effectively ... read Rule 16(b)

and its good cause requirement out of the Federal Rules of Civil Procedure.” Sosa, 133 F.3d at

1419. The Court will not trivialize the Scheduling Order in such a manner. Thus, extension of

those deadlines is not automatic, and plaintiff’s request is not a mere formality to be rubberstamped without scrutiny.

Plaintiff’s late-filed proposed amendment is not permissible unless it comports with Rule

16(b)’s directive that modifications to a pretrial scheduling order may be made only “upon a

showing of good cause.” Id. Interpreting this standard, the Eleventh Circuit has explained that it

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

seeking the extension.” Sosa, 133 F.3d at 1418; see also Argo Systems FZE v. Liberty Ins. PTE,

Ltd., 2005 WL 1355060, *5-6 (S.D. Ala. June 7, 2005) (explaining that Rule 16(b) good cause

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 4 of 11
7 English maintains that his proposed Count Five is motivated in part by his

assessment “that the layoff and rehire scheme was an attempt to circumvent the CBA’s last in,

first out requirements.” (Reply, at 3.) But he offers no reason why he could not have made that

assessment before filing the initial Complaint, wherein he lodged specific allegations about that

very “layoff and rehire scheme.” Plaintiff does not suggest that he was unaware of the

disparities in seniority between himself and Hayes, or that he was ignorant of the CBA’s

purported “last in, first out requirements” until conducting substantial discovery in this litigation. 

Additionally, English contends that part of the justification for Count Five is that he learned in

discovery that CSA violated the CBA by rehiring Hayes without union consent. (Id.) But

English then cites deposition testimony from the Union President, Mike Bowden, that he did

consent to such rehire on behalf of the Union. (Id. at 8-9.) Thus, plaintiff points to discovery

conflicting with allegations in his proposed Count Five; surely, he did not need to take such

discovery before pleading facts that controvert it. The Court understands that English disputes

Bowden’s authority to provide such consent, but English offers no reason why he could not have

known of or had reason to believe that objection contemporaneously with filing the original

Complaint.

-5-

standard precludes modification of scheduling order unless existing schedule cannot be met

despite movant’s diligence); Williams v. Baldwin County Comm’n, 203 F.R.D. 512, 516-17 (S.D.

Ala. 2001) (denying extension where plaintiff’s counsel was inattentive to scheduling order). 

Therefore, the touchstone of the Rule 16(b) inquiry is whether English exercised diligence in

pleading potential claims against Defendants. The Court answers this question in the negative.

B. Application of Legal Standard to Proposed Claims.

1. Plaintiff Was Not Reasonably Diligent in Pleading Count Five.

The alleged violations of the CBA and “the National Labor law” that English identifies in

his proposed Count Five may be grouped into the following categories: (a) the discharge of

English and Hayes in January 2002, and Hayes’ subsequent rehire; (b) the selection of Franklin

over English in June 2002; (c) Defendants’ chicanery in hiring Gibbons over English; and (d) the

biased grievance committee. Yet the initial Complaint, filed eight months before the

Amendment, includes many of these allegations already. For example, Paragraph 17 of the

Complaint alleges that English and two other clerks were furloughed in January 2002, and that

Hayes was promptly rehired despite having less seniority than plaintiff.7

 If English knew these

facts in May 2005, why could he not have pleaded Count Five claims predicated on those facts at

that time? Likewise, Paragraph 29 of the Complaint alleges that Gibbons was hired for a

Regular Clerk position despite being less senior than English. Again, given English’s

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 5 of 11
8 English points to facts elicited in discovery that Gibbons had less seniority than

any other applicants, that the union recommended Gibbons for the position, that the CBA did not

allow Gibbons to be hired for that position unless its incumbent had been removed for cause, and

that the incumbent was in fact removed for cause. (Reply, at 10-11.) Plaintiff unquestionably

knew of the seniority disparity when he filed his Complaint. The additional facts cited by

plaintiff may (or may not) bolster Count Five, but plaintiff certainly could have pleaded Count

Five without the benefit of such facts.

9 Section 15 is, apparently, the provision of the CBA barring discrimination on the

basis of race, age or other class status. The entire thrust of the initial Complaint is that

Defendants conspired in discriminatory behavior that would violate Section 15. It is therefore a

mystery why plaintiff waited to plead a violation of that CBA provision until submitting his

proposed Amended Complaint.

-6-

knowledge in May 2005 that Gibbons was hired in his stead despite being less qualified, there is

no apparent reason why he could not have pleaded that the hiring decision violated the CBA and

the NLRA.8

 The Complaint accuses Defendants of having “promoted a policy of racial

exclusion,” in contravention of the terms of the CBA. (Complaint, ¶ 35.) It charges ILA with

“selectively listing names to be forwarded to Defendant CSA” for hiring purposes in a racially

discriminatory manner, such that the union was complicit in the employer’s wrongful decisions. 

(Id., ¶ 37.) It contends that the union’s listing practice also effects age discrimination against

older workers, inasmuch as Defendants “have conspired to deprive Mr. English from [sic]

employment opportunities.” (Id., ¶ 59.) Yet plaintiff has waited until now to allege that such

policies and practices violate the CBA and the NLRA.

Clearly, English could have pleaded his CBA and NLRA claims against Defendants well

in advance of his January 2006 proposed amendment. This conclusion is reinforced by several

documents submitted by Defendants. A sharply-worded letter by English to ILA representatives

dated April 12, 2004 purported to initiate a grievance over the hiring of a less senior white

applicant (presumably Gibbons) for the Company Clerk job. (See doc. 34, at Exh. 1.) English’s

grievance letter alleged “that sections of our contract and rules has [sic] been violated

continuously by [ILA] and [CSA]”; that the hiring of less senior white clerks “violates Section 7

of the Working Agreement (Contract)”; that the failure to maintain a recent seniority list/roster

approved by both Defendants “is a violation of Section 8 of the Working Agreement”; that

Defendants “have violated section 15 of the working agreement continuously”;9

 and that his

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 6 of 11
10 Part of the proposed Count Five alleges violations of the CBA and NLRA

predicated on the selection of grievance committee members who were “biased and incapable of

reaching a fair decision.” (Proposed Amendment, ¶ 78(j).) Given that he had previously filed

unfair labor practice charges challenging the composition of the grievance committee, English

cannot credibly deny knowledge of this objection when he filed his Complaint. To be sure,

English may have learned more facts about alleged grievance committee biases during the

discovery process. But he plainly had sufficient information to articulate the claim as of the

filing of the original Complaint. His failure to do so reflects a lack of the diligence required by

Rule 16(b).

-7-

seniority had been diluted or changed. (Id.) Other exhibits reflect that English filed the

following unfair labor practice charges against Defendants with the National Labor Relations

Board: (a) a charge dated June 25, 2004, accusing ILA of violating the NLRA by failing to

represent him “in a grievance concerning the company’s selection of a less senior person for

work” (doc. 34, Exh. 2); (b) a charge dated October 5, 2004 alleging that CSA violated the

NLRA by denying English a company clerk position and allowing its supervisor to serve as a

union official and grievance committee member (Id.); and (c) another charge dated October 5,

2004 alleging that ILA violated the NLRA by allowing a company supervisor to serve as a union

official and grievance committee member (Id.).10

Considered fairly then, the record shows that plaintiff was well aware of the claims

subsumed in Count Five at the time he filed his original Complaint. By failing to include those

claims in the initial Complaint, and by delaying some eight months after initiating this lawsuit

before requesting leave to inject such claims into these proceedings, English did not exercise the

diligence required by Rule 16(b).

2. Plaintiff’s Counterarguments are not Persuasive.

 Plaintiff attempts to establish diligence by arguing that facts gleaned from the discovery

process were essential to his decision to plead Count Five. The Court has no doubt that plaintiff

learned facts in discovery that strengthened his impressions about these claims. For example,

plaintiff indicates that he learned through discovery “who were involved in the decision making

process, how the process functioned, and what facts justified ...decisions adverse to Mr.

English.” (Motion, at 2.) But knowledge of those facts was not a necessary precursor to

plaintiff’s ability to plead Count Five. The original Complaint is chock full of allegations that

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 7 of 11
11 Plaintiff balks that, of the claims identified in the April 2004 letter, “[n]one ... are

included in the proposed amendment.” (Reply, at 13-14.) This statement is patently incorrect. 

Like the April 2004 letter, the proposed Amended Complaint is motivated in large part by

seniority-based objections. Like the April 2004 letter, the proposed Amended Complaint alleges

discrimination in violation of the CBA. Similarly meritless is plaintiff’s contention that his

unfair labor practice charges are distinguishable from his proposed Count Five because the

former “challenged only one member of the Grievance Committee,” while the latter challenges

all of them. (Reply Brief, at 14.) Such a contention fails on its face.

-8-

CSA and ILA conspired together to deprive English of employment, even though at the time of

filing he presumably lacked those same details of who was involved in the decision making

process, how the process functioned, and what facts justified those decisions. To accept

plaintiff’s rationale would be to determine that English needed details about the adverse

decisions to allege breaches of the CBA and NLRA, but not to allege that (a) those same

decisions were unlawfully discriminatory on the basis of his race and age and (b) those decisions

were the product of a conspiracy by CSA and ILA to exclude him from employment. Such a

finding would be internally contradictory and nonsensical.

Equally unavailing is English’s protestation that Count Five is needed “to attach claims

that he either didn’t know that he had, or could not prove at the time that he filed his initial

complaint,” and that “[t]he rules of pleading constrained him from bringing actions based on

instinct or surmise.” (Reply Brief (doc. 36), at 2, 12.) The rules of pleading do not prohibit a

plaintiff from bringing claims based on information and belief. English did just that in bringing

race and age discrimination claims against Defendants. Besides, English plainly knew he had

claims relating to alleged violations of the CBA and NLRA well before he filed his Complaint,

as evidenced by his multiple unfair labor practice charges and his stern April 2004 letter

delineating multiple specific alleged breaches of the CBA by Defendants.11 That he might not

have been able to prove those claims at the time he filed his Complaint did not preclude him

from raising such claims; indeed, it is the rare plaintiff who can “prove” his claims in their

entirety when his initial pleading is filed. That reality is one of the primary purposes for the

discovery process, wherein a plaintiff may collect the necessary evidence within defendants’

purview to prove his claim.

English next suggests that he would have risked Rule 11 sanctions by pleading Count

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 8 of 11
-9-

Five without first gathering facts to prove those claims. But see Anderson v. Smithfield Foods,

Inc., 353 F.3d 912, 915 (11th Cir. 2003) (district court has discretion to award Rule 11 sanctions

only “(1) when a party files a pleading that has no reasonable factual basis; (2) when the party

files a pleading that is based on a legal theory that has no reasonable chance of success and that

cannot be advanced as a reasonable argument to change existing law; or (3) when the party files

a pleading in bad faith for an improper purpose”); Massengale v. Ray, 267 F.3d 1298, 1301 (11th

Cir. 2001) (similar). The Rule 11 test hinges on the reasonableness of counsel’s factual inquiry,

which in turn depends on such factors as how much time for investigation was available and

whether he had to rely on his client for information. See Worldwide Primates, Inc. v. McGreal,

87 F.3d 1252, 1254 (11th Cir. 1996) (outlining standard); Cooter & Gell v. Hartmarx Corp., 496

U.S. 384, 401-02, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“An inquiry that is unreasonable

when an attorney has months to prepare a complaint may be reasonable when he has only a few

days before the statute of limitations runs.”). Here plaintiff’s counsel states that he was retained

by plaintiff just two days before the Complaint was filed, and that time was of the essence

because of the imminent Title VII limitations deadline. (See Motion, at 1-2.) Plaintiff’s counsel

further suggests that details about Defendants’ decision making processes were held in their

exclusive domain. (See Reply, at 2.) Under the circumstances, counsel could not reasonably

have believed that it would violate Rule 11 to raise the CBA and NLRA claims prior to vetting

them thoroughly via the discovery process. Cf. Baker v. Alderman, 158 F.3d 516, 524 (11th Cir.

1998) (Rule 11 sanctions are warranted where plaintiffs exhibit deliberate indifference to

obvious facts, not where plaintiff’s evidence is merely weak). The Advisory Committee Notes

accompanying the 1993 amendments to Rule 11 specifically recognize “that sometimes a litigant

may have good reason to believe that a fact is true or false but may need discovery, formal or

informal, from opposing parties or third persons to gather and confirm the evidentiary basis for

the allegation.” Id. Simply put, plaintiff’s counsel was no more at risk of incurring Rule 11

sanctions for Count Five on the ground of insufficient factual basis than he was for any of the

other causes of action articulated in the Complaint. A groundless fear of such sanctions cannot

excuse plaintiff’s lack of diligence in pleading Count Five.

III. Conclusion.

Plaintiff’s proposed amendment was filed more than two months after the deadline set

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 9 of 11
12 In so finding, the undersigned does not have occasion to rule on Defendants’

arguments that the proposed amendment is futile under Rule 15(a), Fed.R.Civ.P., because

plaintiff’s claims against ILA for breach of the CBA are subject to a six-month limitations

period. Where an employee brings a hybrid § 301 / fair representation claim against both an

employer and a union, alleging that the employer breached a collective bargaining agreement

and that the union breached its duty of fair representation, the combined cause of action is

governed by a six-month limitation period borrowed from § 10(b) of the NLRA. See, e.g.,

Coppage v. U.S. Postal Service, 281 F.3d 1200, 1204 (11th Cir. 2002). But English never frames

Count Five as such a hybrid claim, nor does he posture his claims against ILA as arising from

breach of its duty of fair representation. See Sams v. United Food & Commercial Workers Int’l

Union, AFL-CIO, 866 F.2d 1380, 1385 (11th Cir. 1989) (“what the plaintiff says his case is after

limitations have been asserted as a problem, may not be decisive, but how he pleads it or did

plead it very much is”). Although obscured by the amendment’s decidedly murky legal

underpinnings and amorphous structure, the proposed Count Five may allege that ILA breached

contractual obligations under the CBA, as to which English was a third-party beneficiary. In that

event, plaintiff’s resulting Section 301 claim for breach of contract would be governed by

Alabama’s six-year statute of limitations for contract claims, not § 10(b)’s six-month period, and

therefore would be timely. See Hechler v. Intern. Broth. of Elec. Workers, 834 F.2d 942, 946

(11th Cir. 1987). To resolve this issue, the Court would have had to undertake the following

analysis: “If Plaintiff's § 301 claims are based only on contractual duties, and are not dependent

on federal labor law, then they are governed by the state statute of limitations. If, on the other

hand, Plaintiff's claims depend on showing that the Union breached its federally-imposed duty of

fair representation, then the applicable statute of limitations is that provided in § 10(b).” Davis

v. Asti, Inc., 180 F. Supp.2d 1314, 1319 (S.D. Fla. 2001). ILA’s submission unhelpfully

assumed that Count Five is a hybrid claim. Absent some basis for that assumption, the breach of

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forth in the applicable Scheduling Order. To establish good cause for this delay, plaintiff insists

that “it was only through discovery that Mr. English learned the full extent of how his rights ...

had been trampled upon.” (Reply, at 14.) But the rules of pleading neither require plaintiffs to

forestall pleading causes of action, nor afford them the luxury of waiting to plead such causes of

action, until such time as they have “learned the full extent” of any wrongs. After careful

scrutiny of the pleadings and the discovery materials submitted by the parties, the undersigned is

convinced that English was aware of and could have pleaded the claims subsumed in Count Five,

in good faith and without any legitimate fear of sanctions for factual deficiencies, as part of the

initial Complaint. His failure to do so until eight months later constitutes a lack of reasonable

diligence. Accordingly, plaintiff has failed to show good cause for modification of the Rule

16(b) Scheduling Order, and such modification is inappropriate. The Motion for Leave to

Amend is denied as untimely and noncompliant with the Scheduling Order.12

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 10 of 11
CBA claims against ILA were neither untimely nor futile. That said, other aspects of the

proposed Count Five clearly would have flunked a futility inquiry. If, as English insists, he is

not bringing a duty of fair representation claim against ILA, then his claims against CSA for

breach of the CBA are barred because such claims are cognizable against an employer only if the

union breached its duty of fair representation. See DelCostello v. Int’l Broth. of Teamsters, 462

U.S. 151, 163-64, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); Parker v. Connors Steel Co., 855 F.2d

1510, 1521-22 (11th Cir. 1988); Davis, 180 F. Supp.2d at 1318. Similarly, to the extent that the

proposed Count Five would allege unfair labor practices in violation of the NLRA, it is futile

because federal courts are not empowered to decide what is or is not an unfair labor practice

under §§ 7 and 8 of the NLRA. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83, 102 S.Ct.

851, 70 L.Ed.2d 833 (1982) (explaining that NLRB has primary jurisdiction to determine unfair

labor practices, and that federal courts generally “do not have jurisdiction over activity which is

arguably subject to § 7 or § 8 of the” NLRA); Taylor v. N.L.R.B., 786 F.2d 1516, 1520 (11th Cir.

1986) (“the NLRB has a statutory duty to enforce the National Labor Relations Act and

exclusive jurisdiction to decide unfair labor practices”); Bova v. Pipefitters and Plumbers Local

60, AFL-CIO, 554 F.2d 226, 228 (5th Cir. 1977) (“Of course, any claim by Bova that he has been

the victim of an unfair labor practice must be submitted to the National Labor Relations Board,

not the district court, absent certain exceptions not applicable here.”). Thus, a Rule 15(a) futility

analysis would have barred some, but likely not all, claims subsumed in the proposed Count

Five.

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DONE and ORDERED this 16th day of February, 2006.

s/ WILLIAM H. STEELE 

UNITED STATES DISTRICT JUDGE

Case 1:05-cv-00312-WS-B Document 38 Filed 02/16/06 Page 11 of 11