United States District Court, S.D. Texas, Houston Division
ENGLOBAL U.S. INC., Plaintiff,
NATIVE AMERICAN SERVICES CORPORATION Defendant.
ORDER DENYING MOTION TO AMEND THE COMPLAINT AND
GRANTING MOTION FOR LEAVE TO FILE A SURREPLY
Rosenthal Chief United States District Judge.
following motions are pending: ENGlobal U.S. Inc.'s
motion for summary judgment, (Docket Entry No. 27), motion
for partial summary judgment, (Docket Entry No. 28), and
motion to amend its complaint, (Docket Entry No. 31), and
Native American Services Corporation's motion to strike
ENGlobal's proposed amended complaint, (Docket Entry No.
35), and motion for leave to file a surreply in opposition to
ENGlobal's motion for partial summary judgment, (Docket
Entry No. 36).
proposes to amend its complaint to add claims for fraudulent
inducement, negligent misrepresentation, and quantum meruit.
On March 17, 2017, the court entered a scheduling and docket
control order setting July 21, 2017 as the deadline for
filing motions for leave to amend pleadings. ENGlobal filed
its motion on July 27, 2017, six days after that deadline.
ENGlobal argues that an inadvertent calendaring error caused
the delay, and that good cause for allowing the amendment
exists because, if leave is not granted, ENGlobal will be
unable to present all its available causes of action.
ENGlobal argues that amending will not unfairly prejudice
Native American Services Corporation because ENGlobal's
claims present alternative theories of recovery that mirror
Native American Services Corporation's counterclaims, and
will require no additional discovery, time, or expense.
American Services Corporation responds that ENGlobal has not
shown good cause. Native American argues that the parties had
over four months from the date of the scheduling conference
to file amended pleadings and that a calendaring mistake does
not show good cause. Native American also argues that
ENGlobal has failed to show that the proposed amendment is
important to the case, and has failed to show that denying
the proposed amendment would prejudice ENGlobal.
Rule 16(b) of the Federal Rules of Civil Procedure, a
scheduling order “may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(4); United States ex rel. Bias v. Tangipahoa Par.
Sch. Bd., 816 F.3d 315, 328 (5th Cir. 2016). Rule 16(b)
requires a district court to enter a scheduling order setting
deadlines, including for pleading amendments. See
Fed. R. Civ. P. 16(b)(1). By limiting the time for amending
pleadings, Rule 16(b) is designed to ensure that “at
some point both the parties and the pleadings will be
fixed.” See Id. (Advisory Committee Notes to
Rule 16(b) “good cause” standard, rather than the
Rule 15(a) “freely given” standard, governs a
motion to amend filed after a court's scheduling order
deadline. Sullivan v. Leor Energy, LLC, 600 F.3d
542, 551 (5th Cir. 2010). The good-cause standard requires a
party “to show that the deadlines cannot reasonably be
met despite the diligence of the party needing the
extension.” S&W Enters., LLC v. SouthTrust Bank
of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (internal
citations omitted). In deciding whether there is good cause
to amend a scheduling order, courts consider: “(1) the
explanation for the failure to [timely move for leave to
amend]; (2) the importance of the [amendment]; (3) potential
prejudice in allowing the [amendment]; and (4) the
availability of a continuance to cure such prejudice.”
Bias, 816 F.3d at 328.
explanation of its failure to timely move for leave to
amend-a calendaring mistake-does not meet the good-cause
standard of diligence on the part of the party seeking the
extension. ENGlobal's argument that it is prejudiced by
not amending is undermined by its argument that the proposed
added claims are merely alternative theories of relief that
mirror the counterclaims. The parties have already filed and
briefed motions for summary judgment based on the existing
pleadings, an added reason to deny the late-filed leave to
amend. ENGlobal has not shown good cause, and its motion for
leave to amend the complaint is denied.
American Services Corporation also moved for leave to file a
surreply to ENGlobal's motion for partial summary
judgment. Native American Services Corporation asserts that
ENGlobal raised three new arguments in its reply: (1) that
exemplary damages are a form of special damages; (2) that
lost profits are necessarily consequential or special
damages; and (3) that damages for loss of goodwill are
special damages. A surreply is appropriate “only when
the movant raises new legal theories or attempts to present
new evidence at the reply stage.” Makhlouf v.
Tailored Brands, Inc., 2017 WL 10922311, at *5 (S.D.
Tex. Mar. 23, 2017) (collecting authority). Leave to file a
surreply is not appropriate “where the proposed
surreply does not include new arguments or evidence or merely
restates arguments in the movant's response.”
reply to Native American Service Corporation's response
to ENGlobal's motion for summary judgment raised new
arguments and legal theories. Native American Service
Corporation's proposed surreply responds to those
arguments and legal theories. Leave to file a surreply is
appropriate, and the motion for leave to file a surreply is
motion to amend the complaint, (Docket Entry No. 31), is
denied. The motion to strike the amended complaint, (Docket
Entry No. 35), is denied as moot. The motion for leave to
file a surreply, (Docket Entry No. 37), is granted. The court
will rule on the motion for summary judgment and the motion
for partial summary judgment, ...