[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 13321

Non

- Argument Calendar

____________________

ENVIRONMENTAL PROTECTION COMMISSION OF HILLSBOROUGH COUNTY, FLORIDA,
Plaintiff

- Appellant,

versus MERCEDES BENZ USA, LLC, DAIMLER AKTIENGESELLSCHAFT,

Defendants

- Appellees,

ROBERT BOSCH, LLC, et al., USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 1 of 122 Opinion of the Court 22

- 13321

Defendants.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:20

- cv

- 02238

- VMC

- MRM

____________________
Before W ILSON , J ORDAN , and B RANCH , Circuit Judges.

PER CURIAM:
This case centers around “defeat device” software that was installed in certain diesel Mercedes vehicles from 2007 to 2016
, and the subsequent, post

- sale updates that were made to the software

. Th e defeat devices allowed the vehicles to bypass the ir emissions

cont rol system s and emit more pol lutants when not in an emissions

- testing environment

. The Environmental Protection Commission of Hillsborough County, Florida (Hillsborough)
, a unit of local government , sued Mercedes Benz USA, LLC (Mercedes) and Daimler Aktiengesellschaft (Daimler) (collectively, Appellants) for violati on of a local ordinance that prohibits tampering with emissions control systems

. T he d istrict court dismiss ed Hillsborough’s f ourth a mended

c omplaint with prejudice

. After careful review, we AFFIRM

. USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 2 of 1222

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I. A. Procedural History Hillsborough is a unit of government responsible for protecting the local environment and natural resource s

. On September 24, 2020, Hillsborough initiated this action in the United States District Court for the Middle District of Florida. 1 That same day
, Hillsborough filed an amended complaint to correct a n error in the signature block . T he next day , Hillsborough filed a second amended complaint to add information r egarding the citizenship of the defendants at the district court’s request

. In February 2021, the district court stayed th is case pending the Supreme Court’s decision on whether to grant certiorari in a related case. The Supreme Court denied certiorari, s ee Volkswagen Group of America, Inc. v. The Environmental Protection Commission of Hillsborough County, Florida , 142 S. Ct. 521 (2021) (Mem.)
, and the district court lifted the stay in November 2021. Hillsborough moved f o r leave to a mend its complaint to clarify that

— in line with the Ninth Circuit’s ruling in In re Volkswagen “Clean Diesel” M arketing , Sales Prac tices , & Prod uct s Liab ility Litig ation , 959 F.3d 1201 (9th Cir. 2020)

— it was only alleging violations arising from post

- sale conduct. The district court granted leave to amend , a nd Hillsborough filed its third amended complaint on December 16, 2021

. Daimler and Mercedes moved

1 Hillsborough also named Robert Bosch, LLC and Robert Bosch GmbH as defendants but later voluntarily dismissed the claims against them. USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 3 of 124 Opinion of the Court 22

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to dismiss

. On April 18, 2022, t he district court granted the motion to dismiss the third amended complaint

. In its order , the court identified deficiencies in the tampering allegations but stated that Hillsborough m ight be able to cure them by “plead [ing] greater detail about the software updates, field fixes, and recalls on which its claims rely.” Thus, the d istrict court stated that Hillsborough could amend its claims within fourteen days if it wished to do so.
B. Motion for Extension of Time to Amend Claims On April 28, 2022, Hillsborough moved for a 90

- day extension of time to file its fourth amended complaint. Hillsborough requested the extension to allow time to supplement its allegations with information from outstanding records request s it had submitted i n March 2022

. Hillsborough submitted Freedom of Information Act (FOIA) and pu blic records requests to the Environmental Protection Agency (EPA) and the California Air Resources Board (CARB) seeking documents pertaining to “post

- sale updates and modifications to the emission control system of the Affected Vehicles in this action, an d their impact on emissions.”On May 11, 2022, the district court entered an endorsed order denying Hillsborough’s motion for extension of time to file a fourth amended complaint, finding that the filing of the fourth amended complaint before the court considered the motion for extension of time rendered the motion for extension of time moot.The district court also found that the extension was due to be denied because Hillsborough failed to establish good cause to extend the amendment deadline by 90 da ys or more. USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 4 of 1222

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C. Fourth Amended Complaint On May 2, 2022, Hillsborough filed its fourth amended complaint alleg ing two claims

— one for monetary penalties and one for injunctive relief

— based on the alleged violation of Chapter 1

- 8, “Mobile Source,” of the Rules of the Environmental Protection Commission of Hillsborough County ( EPC Rules). Chapter 1

- 8 was promulgated to implement the Florida Legislature’s intent
as declared in the Environmental Protection Act of Hillsbo rough County, to insure the atmospheric purity and freedom of the air in Hillsborough County from contaminants or synergistic agents resulting from the improper use and combustion of fuels in motor vehicles, or any other air contaminants released by the im proper operation or servicing of motor vehicles.

EPC Rule 1

- 8.01. Hillsborough further alleged that Daimler and Mercedes violated EPC Rule 1

- 8 .05 , which provides: “ N o person shall tamper, cause, or allow the tampering of the emission control system of any motor vehicle.” EPC Rule 1

- 8.05(1). The fourth amended complaint alleged that Mercedes implemented post

- sale software updates to the vehicles’ emissions control systems

. These updates were made available to Mercedes dealerships via web

- based computer programs. When a vehicle was brought into a dealership for service, the dealership would input the vehicle identification number, which would bring up a list of any availabl e software updates . These updates were then installed during the service appointment . Further, the fourth USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 5 of 126 Opinion of the Court 22

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amended complaint generally alleged that car manufacturers issue post

- sale software updates pursuant to field fixes or recalls “via

over

- the

- air upd ates, wherein vehicles receive software updates via satellite or Wi

- Fi connections.” On May 16, 2022, Daimler and Mercedes moved to dismiss the fourth amended complaint

. O n September 20, 2022, the district court granted the motion to dismiss with prejud ice , concluding that Hillsborough “has not stated plausible claims for violation of EPC Rule Chapter 1

- 8.” In its order, t he district court noted the limited, new allegations th at Hillsborough had added to the fourth amended complaint

— specifically, Hillsb orough added the phrase “through field fixes and recall campaigns ” throughout and added allegations from two other lawsuit s. B ut the district court found

t hat Hillsborough still failed to allege “ additional information regarding the impact of the field fixes, recalls, or post

- sale software updates on the vehicles’ emission control systems.” Thus, the district court held that Hillsborough failed to allege sufficient detail to plausibly state a claim for post

- sale tampering and dismissed both claims with prejudice

. Hillsborough timely appealed.

II.

We review de novo the district court’s dismissal of a complaint for failure to state a claim. Resnick v. AvMed, Inc ., 693 F.3d 1317, 1324 (11th Cir. 2012). “ [ A ] pleading must contain a ‘short and pl ain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal , 556 U.S. 662, 6 77

– 78 (2009) (quoting Fed. USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 6 of 1222

- 13321 Opinion of the Court 7

R. Civ. P. 8(a)(2)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id

. at 678 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A complaint “do es not need detailed factual allegations” to survive a Rule 12(b)(6) motion to dismiss, but the plaintiff must allege the grounds of its entitlement to relief, which “requires more than labels and conclusions” or “a formulaic recitation of the elements of a cause of acti on .” Twombly , 550 U.S. at 555.
We review for abuse of discretion the district court’s denial of motions for amendment and for extension of time

. See In re Engle Cases , 767 F.3d 1082, 110 9 (11th Cir. 2014 ) ; Lizarazo v. Miami

- Dade Corr. & Rehab. Dep’t , 878 F.3d 1008, 1010

– 11 (11th Cir. 2017)

. Federal Rule of Civil Procedure 15 provides that courts “should freely give leave [to amend pleadings] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “ Rule 15(a)(2) ‘ sev erely restricts ’ a district court’s ability to dismiss with prejudice. ” Garcia v. Chiquita Brands Int’l,
Inc ., 48 F.4th 1202, 1220 (11th Cir. 2022) (alteration adopted) (quoting Bryant v. Dupree , 252 F.3d 1161, 1163 (11th Cir. 2001 ) ). A district

court mu st permit a plaintiff at least one opportunity to amend before dismissing with prejudice if a more carefully drafted complaint might state a claim. Id

. However, a district court need not grant leave to amend where : (1) there is undue delay, bad faith, di latory motive, or repeated failure to fix deficiencies ; (2) permitting amendment would cause the opposing party undue prejudice; or (3) amendment would be futile. Id

. USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 7 of 128 Opinion of the Court 22

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III. Hillsborough argues (1) that dismissal was improper because the fourth amended complaint was sufficiently pleaded
, and (2) that at a minimum the district court should have permitted another chance to amend prior to dismissal with prejudice. We address each argument in turn.

A. Sufficiency of the Allegations in the Fourth Amended Complaint
First, Hillsborough argues that dismissal was improper because the fourth amended complaint was sufficiently pleaded under Federal Rule of Civil Procedure 8 . We disagree. The allegations of the fourth amended complaint fa ll shor t of stat ing a plausible claim for relief based on the violation of EPC Chapter 1

- 8. Hillsborough alleged that Appellants violated EPC Rule 1

- 8.05, which provides: “No person shall tamper, cause, or allow the tampering of the emission control system of a ny motor vehicle.” EPC Rule 1

- 8.05(1). Here, t he EPC Rules’ definition of “tampering” is important in our analysis of whether Hillsborough plausibly alleged that Appellants violated the ordinance

. The EPC Rules define “tampering” as “the intentional in activation, disconnection, removal or other modification of a component or components of the emission control system resulting in it being inoperable.” EPC Rule 1

- 8.03(2)(h). Further, the EPC Rules define “ i noperable emission control system” as “any emis sion control system or component thereof whose operation or efficiency has been circumvented, defeated, or deleteriously affected by USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 8 of 1222

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improper maintenance, improper up

- keep, wear and tear, misfuelling, or tampering.” EPC Rule 1

- 8.03(2)(c). Thus, to alleg e a violation of the ordinance, Hillsborough needed to allege facts showing that Appellants intentionally modified the vehicles’ emissions control system s in a way that rendered the system s inoperable or less efficient. Hillsborough’s allegations fall short because they do not state that the post

- sale software updates made the emission control systems inoperable or less efficient. I t is worth emphasizing that Hillsborough is only asserting claims relating to Appellants ’ post

- sale activities. This is why Hillsborough’s allegations fail. The fourth amended complaint do es not allege how

— t hrough post

- sale activities

— Appellants modified the vehicles’ emissions control systems in such a way that rendered them inoperable or less efficient

. The fourth amended complaint merely pays lip service to the post

- sale software updates withoutalleging what effect, if any, the software updates even had on emissions.
The closest Hillsborough gets is by a lleg ing that “numer ous post

- sale software updates to the emission control systems

. . . have been implemented and installed throughout the United States, Florida, and Hillsborough County through field fixes and/or recall campaigns” and that “ every post

- sale update that does not remove the [defeat device] workaround” is illegal. But these allegations miss the mark because , even taken as true, they do not show how the updates rendered the emissions control systems inoperable or less efficient

. Thus, the fourth amended complaint does not USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 9 of 1210 Opinion of the Court 22

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contain sufficient factual matter to allege a facially plausible violation of EPC Rule 1

- 8.05. Iqbal , 556 U.S. at 678

. Hillsborough asserts that the allegations of the fourth amended complaint sufficiently put Appellants on fair notice of the claims against them. We disagree. Hillsborough’s allegations simply provide more detail about how the post

- sale software updates occurred

. T he allegations do not show how Appellants, through these updates, tampered with the emissions control systems in a way that violate d EPC Rule 1

- 8

. Hillsborough further argues that the fourth amended complaint’s reference to related litigation

— specifically, a lawsuit against Mercedes brought by the EPA and CARB
, and a lawsuit against Volkswagen inv olving similar defeat device softwar e

— satisf ies Federal Rule of Civil Procedure 8. This argument also fails

. Hillsborough simply cannot fill gaps in its allegations via reference

to facts or allegations in other lawsuits

. The information about the other lawsuits d o es not show how Appellants violated the anti

tampering ordinance in Hillsborough County

. Thus, dismissal of Hillsborough’s claims with prejudice was
proper because the fourth amended complaint fail s to “state a claim to relief that is plausible on its face.” Twombly , 550 U.S. at 570

. We affirm the district court’s dismissal with prejudice.

B. Extension of Time to Amend Claims

Se cond, Hillsborough argues the district court erred by not allowing another opportunity to amend , especially after Hillsborough demonstrated it could provide additional detail regarding USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 10 of 1222

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the impact of the post

- sale updates. We disagree that another chance to amend was warranted und er the circumstances

. Here , even disregarding Hillsborough’s first two amendments (which made non

- substantive changes ), Hillsborough still had two opportunit ies (in its third and fourth amended complaints) over the span of roughly six months to substantiv ely amend its claims a fter the stay was lifted in November 2021 . In ruling on Appellants’ motion to dismiss the third amended complaint, the district court found Hillsborough’s allegations to be deficient, specifically identified the type of information needed t o cure the deficiencies, and gave Hillsborough a chance to amend within fourteen days

. After finding the allegations in the fourth amended complaint were still deficient, t he district court dismiss ed Hillsborough’s claims with prejudi ce . The district court acted within its discretion in dismissing with prejudice because it had already granted Hillsborough at least one chance to amend

. Garcia , 48 F.4th at 1220. Hillsborough also contends that an extension of time to file a fourth am ended complaint

— past the fourteen days that the district court ordered

— was warranted to allow time for it to add information from the FOIA and public records requests to EPA and CARB. We are unpersuaded. Hillsborough had roughly six months to seek and obtain discovery between the time the stay waslifted in November 2021 and the filing of its fourth amended complaint in May 2022. B ut Hillsborough did not submit its FOIA and public records requests until March 2022

— four months after the USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 11 of 1212 Opinion of the Court 22

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stay was lifted

. We are disinclined to find that the district court abused its discretion in denying an extension of time to amend under these circumstances, and in all events, d istrict courts have wide latitude in managing their dockets

. Adinolfe v. United Techs. Corp
., 768 F.3d 1161, 1167 (11th Cir. 2014) (“ District courts have broad discretion in deciding how best to manage the cases before them.” (internal quotation mark s omitted) )

. Th us, the district court acted within its discretion in denying Hillsborough an ex tension of time to amend its claims. Accordingly, w e affirm

. AFFIRMED. USCA11 Case: 22-13321 Document: 36-1 Date Filed: 07/21/2023 Page: 12 of 12