IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

EARNEST E. WARHURST, JR., )

)

Plaintiff, )

)

v. ) Civil Action No. 14-00245-N

)

ONE TWENTY FOOT BERTRAN, 1969 ) IN ADMIRALTY

Model Year, bearing Alabama )

Registration No. AL8238LM, her )

engines, tackle, equipment, )

appurtenances, and attached travel )

trailer, etc., in rem, and DAVID L. )

JONES, in personam, )

)

Defendants. )

ORDER

This action is before the undersigned United States Magistrate Judge on 

Plaintiff’s Motion for Leave to Amend Answer to Counterclaim (Doc. 36) and Notice 

of Expert Disclosure (Doc. 37), and the Response filed by Defendant David L. Jones 

(Doc. 38). Upon consideration, Motion for Leave to Amend Answer to Counterclaim 

is GRANTED and the proposed Amended Answer to Counterclaim is deemed filed 

upon entry of this order. The Notice of Expert Disclosure was not filed with the 

court until September 8, 2014, whereas the Scheduling Order provided that any 

motion to permit leave for expert discovery would be filed “no later than August 18, 

2014.” Doc. 29 at 3. Accordingly, Plaintiff’s Notice of Expert Testimony is 

STRICKEN.

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Generally, in the absence of any reason to deny the motion, such as undue 

prejudice to the non-movant, undue delay, bad faith or dilatory motive, or repeated 

failure to cure deficiencies on the part of the movant, or futility, leave to amend 

should be freely given when justice so requires. Foman v. Davis, 371 U.S. 178, 182, 

83 S. Ct. 227, 230 (1962). Overall, “there must be a substantial reason to deny a 

motion to amend.” Laurie v. Ala. Ct. of Crim.App., 256 F.3d 1266, 1274 (11th 

Cir.2001). Also, “[t]his Circuit has accepted a policy of liberal amendment.” U.S. for 

Use and Benefit of Krupp Steel Products, Inc. v. Aetna Ins. Co. 831 F.2d 978, 

983 (11th Cir. 1987) (citing Longhan v. Firestone Tire & Rubber Co., 749 F.2d 1519 

(11th Cir.1985) and Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594 (5th Cir. 

Nov.1981) (“The policy of the federal rules is to permit liberal amendment to 

facilitate determination of claims on the merits and to prevent litigation from 

becoming a technical exercise in the fine points of pleading.”)). 

The motion was filed after the August 18, 2014, deadline for amendment of 

pleadings and joinder of parties as set in Scheduling Order (Doc. 29 at 3). However, 

this amended answer comes in response to an amended counterclaim by the nonmovant (See Doc. 31) and there is more than two weeks until the scheduled 

September 30, 2014 bench trial, so the non-movant will not be prejudiced in 

preparing for trial. The docket does not indicate that Plaintiff engaged in any undue 

delay or bad faith, exhibited a dilatory motive, or repeatedly failed to cure 

deficiencies in its pleadings. Accordingly, Motion for Leave to Amend Answer to 

Counterclaim is GRANTED and the proposed Amended Answer to Counterclaim is 

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deemed filed upon entry of this order.

Plaintiff’s Notice of Expert Disclosure was not filed with the court until 

September 8, 2014. This Notice is time-barred by the Scheduling Order provided 

that any motion to permit leave for expert discovery would be filed “no later than 

August 18, 2014.” Doc. 29 at 3. Fed. R. Civ. P. 16(b)(4) states that a schedule may be 

modified “only for good cause” and Plaintiff has not shown what cause there is to 

modify the Scheduling Order in light of the relatively small amount in controversy 

and the added cost of expert testimony. Accordingly, Plaintiff’s Notice of Expert 

Testimony is STRICKEN.

DONE and ORDERED this the 15th day of September, 2014.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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