[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13321

Non-Argument Calendar

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ENVIRONMENTAL PROTECTION COMMISSION OF 

HILLSBOROUGH COUNTY, FLORIDA, 

Plaintiff-Appellant,

versus

MERCEDES BENZ USA, LLC, 

DAIMLER AKTIENGESELLSCHAFT, 

Defendants-Appellees,

ROBERT BOSCH, LLC, et al.,

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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 WILSON, JORDAN, and BRANCH, 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. 

The defeat devices allowed the vehicles to bypass their emissions 

control systems and emit more pollutants 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 

violation of a local ordinance that prohibits tampering with emissions control systems.

The district court dismissed Hillsborough’s fourth amended 

complaint with prejudice. After careful review, we AFFIRM.

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I.

A. Procedural History

Hillsborough is a unit of government responsible for protecting the local environment and natural resources. 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 an error in the 

signature block. The next day, Hillsborough filed a second 

amended complaint to add information regarding the citizenship 

of the defendants at the district court’s request. 

In February 2021, the district court stayed this case pending 

the Supreme Court’s decision on whether to grant certiorari in a 

related case. The Supreme Court denied certiorari, see 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 for leave to amend its complaint to 

clarify that—in line with the Ninth Circuit’s ruling in In re 

Volkswagen “Clean Diesel” Marketing, Sales Practices, & Products Liability Litigation, 959 F.3d 1201 (9th Cir. 2020)—it was only alleging 

violations arising from post-sale conduct. The district court 

granted leave to amend, and 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.

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to dismiss. On April 18, 2022, the 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 might 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 district 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 requests it had submitted in March 2022. Hillsborough submitted Freedom of Information Act (FOIA) and public 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, and 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 days or more. 

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C. Fourth Amended Complaint

On May 2, 2022, Hillsborough filed its fourth amended complaint alleging 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 

Hillsborough 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 improper 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: “No 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 available software updates. These updates were then installed during the service appointment. Further, the fourth 

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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 updates, 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. On September 20, 2022, the district 

court granted the motion to dismiss with prejudice, concluding 

that Hillsborough “has not stated plausible claims for violation of 

EPC Rule Chapter 1-8.” In its order, the district court noted the

limited, new allegations that Hillsborough had added to the fourth 

amended complaint—specifically, Hillsborough added the phrase 

“through field fixes and recall campaigns” throughout and added

allegations from two other lawsuits. But the district court found 

that 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 

plain statement of the claim showing that the pleader is entitled to 

relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. 

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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 “does 

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 action.” 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. SeeIn re Engle 

Cases, 767 F.3d 1082, 1109 (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) ‘severely 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 must 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, dilatory 

motive, or repeated failure to fix deficiencies; (2) permitting 

amendment would cause the opposing party undue prejudice; or 

(3) amendment would be futile. Id. 

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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 fall short of stating 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 any motor vehicle.” 

EPC Rule 1-8.05(1). Here, the 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 inactivation, 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 “inoperable emission control system” as “any emission control system or component thereof whose operation or efficiency 

has been circumvented, defeated, or deleteriously affected by 

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improper maintenance, improper up-keep, wear and tear, misfuelling, or tampering.” EPC Rule 1-8.03(2)(c). 

Thus, to allege a violation of the ordinance, Hillsborough

needed to allege facts showing that Appellants intentionally modified the vehicles’ emissions control systems in a way that rendered 

the systems 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. It 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 does not

allege how—through 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 without 

alleging what effect, if any, the software updates even had on emissions. 

The closest Hillsborough gets is by alleging that “numerous

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 

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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. The allegations do not show how Appellants,

through these updates, tampered with the emissions control systems in a way that violated 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 involving similar defeat device software—satisfies 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 does not show how Appellants violated the antitampering ordinance in Hillsborough County.

Thus, dismissal of Hillsborough’s claims with prejudice was 

proper because the fourth amended complaint failsto “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

Second, Hillsborough argues the district court erred by not 

allowing another opportunity to amend, especially after Hillsborough demonstrated it could provide additional detail regarding 

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the impact of the post-sale updates. We disagree that another 

chance to amend was warranted under the circumstances.

Here, even disregarding Hillsborough’s first two amendments (which made non-substantive changes), Hillsborough still 

had two opportunities (in its third and fourth amended complaints) 

over the span of roughly six months to substantively amend its 

claims after 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 to 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, the district court dismissed Hillsborough’s claims with prejudice. 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 amended 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 was 

lifted in November 2021 and the filing of its fourth amended complaint in May 2022. But Hillsborough did not submit its FOIA and 

public records requests until March 2022—four months after the 

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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, district 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 marks omitted)). 

Thus, the district court acted within its discretion in denying

Hillsborough an extension of time to amend its claims. Accordingly, we affirm.

AFFIRMED. 

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