IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SUNDANCE, LLC, et al., )

 )

Plaintiffs, )

 )

v. ) CIVIL ACTION 14-0115-WS-C

 )

SE PROPERTY HOLDINGS, LLC, )

 )

Defendant. )

 ORDER

Plaintiff Tammy Carter, as administratrix of the estate of Charles H. 

Trammel (“Carter”), has filed a motion to re-open discovery. (Doc. 67).1 The 

defendant has filed a brief in opposition, (Doc. 69), and the motion is ripe for 

resolution.

The plaintiffs, including Carter, initiated litigation against the defendant in 

state court. The defendant removed the action and, in March 2014, filed a 

counterclaim for breach of contract, seeking recovery thereunder of certain 

attorney’s fees. (Doc. 3 at 17-18; Doc. 10 at 12). In May 2014, the Magistrate 

Judge entered a Rule 16(b) scheduling order that established certain deadlines. 

(Doc. 21). These include a discovery completion date of January 23, 2015 and a 

dispositive motions deadline of February 13, 2015. (Id. at 1, 3-4). Carter 

conducted no discovery concerning the defendant’s counterclaim, either before or 

after the Court granted the defendant’s motion for summary judgment as to the 

plaintiffs’ claims in December 2014. (Doc. 51). 

 1 In the original and amended complaint, the administratrix’s name is given as 

“Tammy Carter.” (Doc. 1-1 at 3; Doc. 27 at 1-2). In her motion, she identifies herself as 

“Tammy Center.” (Doc. 67 at 1). Because the pleadings cannot be amended by motion, 

the Court refers to the movant as “Carter.” 

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On February 3, 2015, the defendant moved for summary judgment on its 

counterclaim. (Doc. 61). Carter says she was “surprise[d]” by the magnitude of 

the fees claimed,2 because she believed (and still believes) that the agreements on 

which the defendant relies for a contractual obligation to pay its attorney’s fees 

either do not extend such an obligation to the present situation or, at least, limit 

such fees to a “not substantial” amount. (Doc. 67 at 3-5, 7). Galvanized by the

revelation that the defendant is seeking a substantial recovery, Carter filed the 

instant motion. 

The Rule 16(b) scheduling order warns the litigants that requests for 

extensions of the discovery period “will be viewed with great disfavor and will not 

be considered except upon a showing (1) that extraordinary circumstances require 

it and (2) that the parties have diligently pursued discovery.” (Doc. 21 at 1 

(emphasis omitted)). Carter accepts it as her burden to make such a showing. 

(Doc. 67 at 6).

No extraordinary circumstances are presented here. The existence of the 

counterclaim has been known to Carter since March 2014, and she has known 

since May 2014 that she was required to complete her discovery regarding the 

counterclaim by January 23, 2015. All Carter has shown is that she has been 

recently disabused of her untested assumption that the counterclaim does not 

involve enough money to justify conducting discovery. The very purpose of 

discovery, however, is to allow the parties to find the facts and make decisions 

based on them rather than supposition.3 

The discovery deadline is contained in a Rule 16(b) scheduling order. Such

an order “must limit the time to ... complete discovery,” and such “[a] schedule 

 2 Apparently, in excess of $70,000. (Doc. 67 at 7). Carter learned the amount 

claimed on January 29, 2015, when her lawyer received a response to his informal 

request for such information. (Id.). 

3 A single interrogatory, with its obligation of seasonable supplementation, would 

have sufficed to reveal that the defendant was incurring attorney’s fees subject to its 

counterclaim at an alarming rate.

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may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. 

P. 16(b)(3)(A), (4). “This good cause standard precludes modification unless the 

schedule could not ‘be met despite the diligence of the party seeking the 

extension.’” Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) 

(quoting Fed. R. Civ. P. 16 advisory committee notes). “The lack of diligence that 

precludes a finding of good cause is not limited to a plaintiff who has full 

knowledge of the information with which it seeks to amend its complaint before 

the deadline passes. That lack of diligence can include a plaintiff’s failure to seek 

the information it needs to determine whether an amendment is in order.” 

Southern Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 (11th Cir. 

2009).4 Carter failed to seek the information she needed to determine whether to 

pursue additional discovery concerning the defendant’s counterclaim, and her lack 

of diligence precludes her from demonstrating good cause to re-open discovery.5

For the reasons set forth above, Carter’s motion to re-open discovery is 

denied.

DONE and ORDERED this 19th day of February, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

 4 Because both are covered by Rule 16(b), the same principles that govern 

motions to amend the pleadings govern motions to extend or re-open discovery. E.g., 

Rowell v. Metropolitan Life Insurance Co., 579 Fed. Appx. 805, 806-07 (11th Cir. 2014). 

5 Carter suggests that the defendant would not be prejudiced by a re-opening of 

discovery. (Doc. 67 at 6). “Although this may be the case, it is not relevant to her failure 

to show good cause.” Jackson v. United Parcel Service, Inc., ___ Fed. Appx. ___, 2014 

WL 6476948 at *3 (11th Cir. 2014). 

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