United States Court of Appeals,
Eleventh Circuit.
No. 97-2376
Non-Argument Calendar.
Marlene SOSA, Plaintiff-Appellant,
v.
AIRPRINT SYSTEMS, INC., a Florida corporation, Defendant-Appellee.
Jan. 28, 1998.
Appeal from the United States District Court for the Middle District of Florida. (No. 95-711-Civ-
Orl-22), Anne C. Conway, Judge.
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Appellant Marlene Sosa sued appellee Airprint Systems, Inc. ("Airprint"), her former
employer, alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et
seq. ("ADEA"), and the Florida Civil Rights Act of 1992, Fla. Stat. Ch. 760 ("FCRA"). The district
court dismissed Sosa's case for lack of subject matter jurisdiction because Airprint had too few
employees to be subject to the provisions of the ADEA and FCRA. Sosa does not challenge that
ruling, but instead appeals the district court's denial of her motion to amend the complaint to add
Viking Industries, Inc. as a second defendant.1 The motion to amend argued that the Viking
Industries and Airprint were so closely integrated that they could be considered a single employer
and that the two companies together employed more than the jurisdictional minimum number of
1
Initially, Sosa also sought review of the trial court's denial of her motion for relief pursuant
to Fed.R.Civ.P. 60(b)(3). Because counsel for the parties now agree that we do not have
jurisdiction to review the trial court's disposition of that motion, we do not address the merits of
that issue.
employees. Noting that Sosa's motion to amend was filed well after the time prescribed by the
court's scheduling order, the district court denied the motion as untimely.
District courts are required to "enter a scheduling order that limits the time to ... join other
parties and to amend the pleadings ..." Fed.R.Civ.P. 16(b). Such orders "control the subsequent
course of the action unless modified by a subsequent order," Fed.R.Civ.P. 16(e), and may be
modified only "upon a showing of good cause." Fed.R.Civ.P. 16(b). This good cause standard
precludes modification unless the schedule cannot "be met despite the diligence of the party seeking
the extension." Fed.R.Civ.P. 16 advisory committee's note; see also Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) ("If [a] party was not diligent, the [good cause]
inquiry should end.").2
A district court's decision to enforce its pre-trial order will not be disturbed on appeal absent
an abuse of discretion. Santiago v. Lykes Bros. Steamship Co., 986 F.2d 423, 427 (11th Cir.1993).
Because our review of the record reveals that Sosa failed to demonstrate good cause for belatedly
amending her complaint, we find that the district court did not abuse its discretion and thus affirm
the decision below.
The record makes clear that Sosa's failure to comply with the court's scheduling order
2
In her motion for leave to amend, Sosa asked the district court to apply the "excusable
neglect" standard found in Fed.R.Civ.P. 6(b). As we explain below, when a motion to amend is
filed after a scheduling order deadline, Rule 16 is the proper guide for determining whether a
party's delay may be excused. See Johnson, 975 F.2d at 609; Anda v. Ralston Purina, Co., 959
F.2d 1149, 1155 (1st Cir.1992). However, even if we assume, arguendo, that excusable neglect
under Rule 6(b) were the proper standard, we would affirm the district court's decision in this
case. Given the length of Sosa's delay and the fact that it was within her control to name Viking
Industries as a defendant well in advance of the scheduling order's deadline, the district court
was authorized to conclude that Sosa's neglect was not excusable. See Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 1498, 123 L.Ed.2d 74
(1993) (relevant factors in evaluating excusable neglect include the length of the delay and
whether the delay was within control of the movant).
resulted from a lack of diligence in pursuing her claim. First, despite Sosa's counsel's asserted
familiarity and experience with the employee numerosity requirement under the ADEA and FCRA,
counsel failed to ascertain the number of Airprint's employees before filing suit and took no steps
to acquire this information early in the discovery period. Even in the face of Airprint's assertion in
its answer that it "no longer has any employees," R.6-3, counsel waited some four months before
propounding written discovery and took no oral depositions until nearly three months after the
deadline for amending the complaint. Counsel thus left to chance a critical component of subject
matter jurisdiction.
Second, the information supporting the proposed amendment to the complaint was available
to Sosa even before she filed suit. Sosa's affidavit filed with the district court, in conjunction with
her motion for leave to amend, indicates that she had been aware of the existence of Viking
Industries since she began working for Airprint. Also, much of the evidence cited by counsel in
support of the motion-e.g., that Airprint and Viking Industries had a common principal address,
CEO, President, Secretary, and Treasurer-was public information obtained from the Florida
Department of State and was readily accessible to Sosa prior to initiating her action against Airprint.
Third, Airprint informed Sosa via interrogatory responses that it had not employed more than
20 employees during the relevant time period and that it was not an employer within the meaning
of the ADEA or the FCRA. Despite receiving this information two weeks prior to the deadline for
amending her complaint, Sosa waited approximately six months before taking steps to preserve her
ability to assert a viable theory of subject matter jurisdiction.
Sosa's brief on appeal does not address good cause under Rule 16(b), but focuses instead
upon the liberal amendment standard set out in Federal Rule of Civil Procedure 15(a). If Sosa's
motion for leave to amend had been filed within the time prescribed by the scheduling order, Rule
15(a) would be our primary focus, as well. However, because Sosa's motion to amend was filed
after the scheduling order's deadline, she must first demonstrate good cause under Rule 16(b) before
we will consider whether amendment is proper under Rule 15(a). Johnson, 975 F.2d at 607-608;
Anda, 959 F.2d at 1155. 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.
In light of Sosa's lack of diligence in protecting her rights, Sosa's attempt to add a defendant
outside the time frame prescribed by the scheduling order was not supported by good cause. The
district court thus did not abuse its discretion by denying as untimely Sosa's motion for leave to
amend her complaint.
AFFIRMED.