United States District Court, N.D. Texas, Dallas Division
DON MALLORY and TY FARRELL, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
LEASE SUPERVISORS, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
A. FITZWATER SENIOR JUDGE.
collective action seeking unpaid overtime pay pursuant to the
Fair Labor Standards Act of 1938 (“FLSA”), 29
U.S.C. § 201 et seq., plaintiffs Don Mallory
(“Mallory”) and Ty Farrell
(“Farrell”), individually, and on behalf of all
others similarly situated under 29 U.S.C. § 216(b), move
for leave to file first and second amended complaints to add
two defendants after the deadline for moving for leave to
amend. For the reasons that follow, the court denies both
November 2017 Mallory and Farrell brought this putative
collective action against defendant Lease Supervisors, LLC
(“Lease Supervisors”) seeking unpaid overtime pay
under 29 U.S.C. § 216(b). Mallory and Farrell formerly
worked as “plant operators/managers” for Lease
Supervisors. They contend that they and the other putative
class members were paid a “guaranteed payment”
for the work they performed for Lease Supervisors; that
although they and the other class members regularly worked
between 60 and 80 hours per week, they did not receive
overtime pay for hours worked in excess of 40 hours per week;
that they and the other class members did not qualify for any
applicable overtime exemptions under the FLSA; and,
therefore, that they and the other class members are owed
unpaid overtime wages under the FLSA. Lease Supervisors
answered plaintiffs' complaint on January 26, 2018, and,
shortly thereafter, Mallory and Farrell moved to
conditionally certify this suit as a collective action. On
July 10, 2018 the court denied the motion for conditional
August 27, 2018 the court issued its Phase Two Scheduling
Order that set February 19, 2019 as the deadline for a party
to move for leave to amend the pleadings. On May 10, 2019
Mallory and Farrell filed the instant motion for leave to
file first amended complaint in which they seek to add Ryan
Hoerauf (“Hoerauf”) as a defendant. Ten days
later, on May 20, 2019, Mallory and Farrell filed the instant
motion for leave to file second amended complaint in which
they seek to add Ryan C. Hoerauf, Inc. dba O'Ryan Oil
& Gas (“O'Ryan”) as a defendant. Lease
Supervisors opposes both motions, contending that Mallory and
Farrell have not shown good cause for the relief they seek.
Both of plaintiffs' motions were filed after the February
19, 2019 deadline for a party to move for leave to amend the
as here, a motion for leave to amend the pleadings is filed
after the deadline for seeking leave to amend has expired,
the court must first determine whether to modify the
scheduling order under the good cause standard of
Fed.R.Civ.P. 16(b)(4). See S&W Enters., L.L.C. v.
SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir.
2003); Valcho v. Dall. Cty. Hosp. Dist., 658
F.Supp.2d 802, 814 (N.D. Tex. 2009) (Fitzwater, C.J.).
“The ‘good cause' standard focuses on the
diligence of the party seeking to modify the scheduling
order.” Cut-Heal Animal Care Prods., Inc. v.
Agri-Sales Assocs., Inc., 2009 WL 305994, at *1 (N.D.
Tex. Feb. 9, 2009) (Fitzwater, C.J.). Mere inadvertence on
the part of the movant, and the absence of prejudice to the
nonmovant, are insufficient to establish “good
cause.” Id.; Price v. United Guar.
Residential Ins. Co., 2005 WL 265164, at *4 (N.D. Tex.
Feb. 2, 2005) (Fish, C.J.) (citing Geiserman v.
MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). Instead,
the movant must show that, despite his diligence, he could
not reasonably have met the scheduling deadline. See
S&W Enters., 315 F.3d at 535; Am. Tourmaline
Fields v. Int'l Paper Co., 1998 WL 874825, at *1
(N.D. Tex. Dec. 7, 1998) (citing 6A Charles Alan Wright, et
al., Federal Practice & Procedure, § 1522.1
at 231 (2d ed. 1990)); Sw. Bell Tel. Co. v. City of El
Paso, 346 F.3d 541, 546 (5th Cir. 2003) (citing
S&W Enters., 315 F.3d at 535).
court assesses four factors when deciding whether to grant an
untimely motion for leave to amend under Rule 16(b)(4):
“(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.”
S&W Enters., 315 F.3d at 536 (internal quotation
marks and brackets omitted). Only if the movant first
satisfies the requirements of Rule 16(b)(4) must the court
next determine whether to grant leave to amend under the more
liberal standard of Rule 15(a)(2), which provides that
“[t]he court should freely give leave when justice so
requires.” Rule 15(a)(2); see id.;
Valcho, 658 F.Supp.2d at 814.
court considers first whether Mallory and Farrell have
satisfied the Rule 16(b)(4) good cause standard for their
first motion for leave to amend.
and Farrell have not addressed the Rule 16(b)(4) good cause
standard in their first motion for leave to amend. They have
not filed a reply to Lease Supervisors' opposition
response and therefore have not replied to its assertions
that they have not satisfied the Rule 16(b)(4)
standard. “When a party . . . does not address
the good cause standard under Rule 16(b)(4), this court
typically denies the motion for that reason alone.”
Wachovia Bank, Nat'l Ass'n v. Schlegel, 2010
WL 2671316, at *3 (N.D. Tex. June 30, 2010) (Fitzwater, C.J.)
(citing EEOC v. Serv. Temps, Inc., 2009 WL 3294863,
at *1 (N.D. Tex. Oct. 13, 2009) (Fitzwater, C.J.),
aff'd, 679 F.3d 323 (5th Cir. 2012)). It has
made exceptions to this practice in cases where the movants
have not addressed the Rule 16(b)(4) good cause standard, but
the grounds on which they rely to establish good cause are
relatively clear. See, e.g., Nieves v.
John Bean Techs. Corp., 2014 WL 2587577, at *2 (N.D.
Tex. June 10, 2014) (Fitzwater, C.J.); Cartier v. Egana
of Switz. (Am.) Corp., 2009 WL 614820, at *2 (N.D. Tex.
Mar. 11, 2009) (Fitzwater, C.J.). But even if the court were
to make an exception in this case and not summarily deny
plaintiffs' motion, it would conclude that they have
failed to satisfy the Rule 16(b)(4) good cause standard.
Mallory and Farrell provide no explanation for why they were
unable to seek leave to amend before the deadline. Their
motion alleges that Hoerauf is in the process of selling
Lease Supervisors' assets and shutting down operations,
in part to avoid liability in this case; however, this does
not explain why they could not have sought to join Hoerauf as
a defendant before the deadline. Furthermore, Mallory and
Farrell do not refute Lease Supervisors' assertion that
at the time plaintiffs filed their complaint, they were aware
of the facts on which they now rely to support their motion
to amend: Hoerauf's “‘substantial control
over the terms and conditions'” of plaintiffs'
work. Ps. May 10, 2019 App. 4. Therefore, because Mallory and
Farrell make no attempt to address the good cause standard or
the pertinent four-factor test, and the grounds on which they
rely to establish good cause are insufficient to enable the
court to conduct the required analysis of the pertinent
factors, the court denies the first motion for leave to
court next addresses whether Mallory and Farrell have
satisfied the Rule 16(b)(4) good cause standard with regard