Paul Lir Alexander v. AOL Time Warner, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 19, 2005
No. 04-13626 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-00114-CV-2

PAUL LIR ALEXANDER,

Plaintiff-Appellant,

versus

AOL TIME WARNER, INC.,
RICHARD D. PARSONS, Chairman
and CEO of AOL Time Warner,
Inc.
WARNER BROTHERS,
BARRY MEYER, Chairman and CO
of Warner Brothers Entertainment,
PERMUT PRESENTATIONS,
DAVID PERMUT, Chairman and CEO
of Permut Presentations,
KENSINGTON PUBLISHING CORPORATION,
WALTER ZACHARIUS, Chairman and CEO
of Kensington Publishing Corporation,
STEVEN ZACHARIUS, President and COO of
Kensington Publishing Corporation,
GERALD SPEZIALE, JR.,
a.k.a. Jerry Speziale,

Defendants-Appellees.
 ________________________

No. 04-13850
Non-Argument Calendar
________________________

D. C. Docket No. 03-00114-CV-2

PAUL LIR ALEXANDER,

Plaintiff-Appellee,

versus

AOL TIME WARNER, INC.,
RICHARD D. PARSONS, Chairman
and CEO of AOL Time Warner,
Inc., et al.,

Defendants,

PERMUT PRESENTATIONS,
DAVID PERMUT, Chairman and CEO of
Permut Presentations,
KENSINGTON PUBLISHING CORPORATION,
WALTER ZACHARIUS, Chairman and CEO
of Kensington Publishing Corporation,
STEVEN ZACHARIUS, President and COO of
Kensington Publishing Corporation,
GERALD SPEZIALE, JR.,
a.k.a. Jerry Speziale,

Defendants-Appellants.

2
 ________________________

Appeals from the United States District Court
for the Southern District of Georgia
_________________________

(May 19, 2005)

Before CARNES and PRYOR, Circuit Judges, and FORRESTER *, District Judge.

PER CURIAM:

Paul Lir Alexander sued the defendants for negligence and public disclosure

of private facts in connection with their writing, publication, and promotion of

Without a Badge: Undercover in the World’s Deadliest Criminal Organization.

The district court granted the defendants summary judgment in June 2004,

concluding that Alexander was collaterally estopped from arguing that the First

Amendment did not shield the defendants from liability. The basis for the court’s

collateral estoppel holding was its March 2004 judgment against Alexander in

related litigation involving the book The Lost Son: A Life in Pursuit of Justice and

another set of defendants. Alexander v. News Corp., No. CV 203-158 (S.D. Ga.

Mar. 19, 2004).

On appeal in this case Alexander chose not to contest the district court’s

*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.

3
collateral estoppel reasoning, except on the grounds that its judgment in the other

case was wrong. He has effectively conceded that if the other judgment survives

appeal, he is collaterally estopped from asserting that the district court’s judgment

against him on his negligence and public disclosure claims in this case was error.

Appellant’s Reply/ Cross-Appellee’s Response Br. at 20 n.5. Another panel of

this Court has now affirmed the district court’s opinion in that other case, the one

involving The Lost Son book. Alexander v. HarperCollins Publishers, Inc., No.

04-12801 (11th Cir. May 18, 2005). Accordingly, we affirm the district court’s

grant of summary judgment against Alexander on the two claims he had pleaded in

this case. Given that, there is no need for us to reach the defendants’ alternative

arguments for affirming the judgment.

The remaining issue in this appeal is Alexander’s contention that the district

court abused its discretion in denying his motion for leave to amend his complaint.

In January 2004 the district court granted Alexander’s motion to modify its Fed. R.

Civ. P. 16 scheduling order, extending the last day to file a motion to amend until

March 5, 2004. On April 26, 2004, which is more than seven weeks after the

extended deadline, Alexander filed his motion for leave to amend his complaint to,

among other things, add new claims. The district court denied Alexander’s motion

because it was untimely.

4
 Ordinarily, leave to amend is to be “freely given when justice so requires.”

Fed. R. Civ. P. 15(a); see also Forman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227,

230 (1962). However, when granting leave would require modifying a Rule 16

scheduling order, the movant must first show “good cause.” Sosa v. Airprint

Systems, Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (“If we considered only Rule

15(a) without regard to Rule 16(b), we would render scheduling orders

meaningless and effectively would read Rule 16(b) and its good cause requirement

out of the Federal Rules of Civil Procedure.”); see also Fed. R. Civ. P. 16(b).

Some of the claims that Alexander wanted to add through the amendment

are ones he said were based on the Cooperating Individual Agreement, which was

produced in discovery after the deadline for amending had already passed. It

borders on the frivolous to suggest, as Alexander does, that the Agreement is a

contract between Alexander and Jerry Speziale. Speziale signed the form only as a

witness. Futility of amendment is a proper reason for denying a motion for leave

to amend. See Forman, 371 U.S. at 182, 83 S. Ct. at 230; Jameson v. Arrow Co.,

75 F.3d 1528, 1534–35 (11th Cir. 1996).

The claims that Alexander wanted to add through the amendment that are

not based upon his view of the Agreement are based upon facts that have been

known to him along. Thus, there is no “good cause” for Alexander’s failure to

5
have moved to amend his complaint to include these claims during the sixty days

that the district court gave him to do so. See Sosa, 133 F.3d at 1419; Jameson, 75

F.3d at 1535. For these reasons, the district court did not abuse its discretion in

denying Alexander’s motion for leave to amend his complaint.

AFFIRMED.1

1
This case was originally docketed for oral argument, but the panel unanimously determined to
decide it based on the briefs. See 11th Cir. R. 34-3(f).

6