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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12676
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-23946-RNS
BONNIE LUCAS,
RICHARD LUCAS,
each individually and as husband and wife,
Plaintiffs - Appellants,
versus
USAA CASUALTY INSURANCE COMPANY,
an Insurance Company authorized to do business in Florida,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 15, 2017)
Before HULL, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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This case stems from a November 9, 2014 automobile accident in which
another driver struck plaintiff Bonnie Lucas’s car. Plaintiffs Bonnie and Richard
Lucas, wife and husband, filed this lawsuit seeking coverage under their
underinsured vehicle insurance and now appeal the district court’s dismissal of
their third amended complaint and striking of their fourth amended complaint.
After thorough review, we affirm.
I. PROCEDURAL HISTORY
On July 7, 2016, the Lucases filed this case in state court in Miami-Dade
County, Florida. On August 5, 2016, the Lucases filed a first amended complaint
in that same state court. On September 14, 2016, defendant USAA Casualty
Insurance Company (“USAA”) removed the case to the United States District
Court for the Southern District of Florida, citing the district court’s diversity
jurisdiction. 1
1
While later complaints filed in the district court alleged an amount in controversy of
only over $15,000, we determine the existence of diversity jurisdiction at the time of removal,
and if a plaintiff reduces the claim after removal the district court retains still jurisdiction. PTA-
FLA, Inc. v. ZTE USA, Inc.,
844 F.3d 1299, 1306 (11th Cir. 2016). When USAA removed this
case there were sufficient allegations in the first amended complaint to establish an amount in
controversy of over $75,000 because while the first amended complaint stated that the amount of
monetary damages exceeded $15,000 it also claimed that the value of the claims and injuries
exceeded $400,000, which was the policy limit. Moreover, upon removal USAA submitted a
demand letter from the Lucases’s counsel which demanded the $400,000 policy limit and
detailed various expenses that well exceeded $75,000. See Burns v. Windsor Ins. Co.,
31 F.3d
1092, 1095 (11th Cir. 1994) (holding that when the complaint states an amount in controversy
below the jurisdictional requirement, the removing defendant must prove “to a legal certainty”
that the claim exceeds the required amount in controversy).
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A. Second Amended Complaint
On September 15, 2016, USAA filed a motion to dismiss. On October 14,
2016, the district court issued a scheduling order, which, among other things, set
November 18, 2016 as the deadline to amend pleadings.
On December 16, 2016, the district court granted USAA’s motion to dismiss
and dismissed the first amended complaint without prejudice, giving the Lucases
the opportunity to file a second amended complaint. In doing so, the district court
explained that the first amended complaint violated Federal Rule of Civil
Procedure 10(b) because it lacked organizational clarity and because it failed to
include—as it must to sustain an underinsured motorist claim under Florida law—
allegations supporting the finding of liability and damages against the underinsured
motorist who struck Mrs. Lucas’s car. The district court also found that the first
amended complaint consisted only “of ten continuous, misnumbered paragraphs,
unseparated by logical divisions into counts” and failed to describe the “unnamed
‘derivative claim’” on behalf of Mr. Lucas.
On December 28, 2016, the Lucases filed their second amended complaint.
On January 11, 2017, USAA filed a motion to dismiss the second amended
complaint. On January 24, 2017, the Lucases filed a motion for leave to file an
amended complaint. On January 25, 2017, the district court, in a paperless order,
denied the motion for leave to amend as moot, explaining that, pursuant to Federal
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Rule of Civil Procedure 15(a)(1)(B), the Lucases could amend their complaint as a
matter of course, without the Court’s leave, until up to 21 days after the service of
the motion to dismiss. 2 That same day, January 25, the Lucases filed their third
amended complaint. On January 26, 2017, the district court, in a paperless order,
denied USAA’s motion to dismiss the second amended complaint as moot.
B. Third and Fourth Amended Complaints
On February 1, 2017, USAA again filed a motion to dismiss directed at the
third amended complaint. On February 9, 2017, the Lucases filed a fourth
amended complaint without seeking leave to do so from the district court. The
Lucases did not file a response to the motion to dismiss the third amended
complaint.
C. District Court’s Order
On February 13, 2017, the district court granted USAA’s motion to dismiss
the third amended complaint because it still failed to plead a cognizable claim for
relief and because it did not comply with Rule 10(b).
2
We need not address whether the district court correctly relied on Rule 15(a)(1)(B),
despite the scheduling order’s deadline to amend the pleadings, when it explained that the
Lucases could amend their second amended complaint without leave of the district court. See
Sosa v. Airprint Sys., Inc.,
133 F.3d 1417, 1419 (11th Cir. 1998) (per curiam) (“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.”). That decision has not been challenged on appeal, and, regardless of the
rationale, the Lucases received an additional opportunity to amend their complaint.
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The district court also struck the fourth amended complaint as untimely
because it was filed on February 9, 2017, over two months after the November 18,
2016 deadline to amend pleadings in the scheduling order, and because there was
not good cause to amend the scheduling order. The district court dismissed the
case with prejudice because the Lucases had failed to address the deficiencies the
court noted on December 16, 2016 when it dismissed their first amended complaint
despite multiple opportunities to do so.3
The Lucases timely appealed. Their appeal challenges the district court’s
decision to dismiss the third amended complaint without leave to amend and to
strike the fourth amended complaint.
II. DISMISSAL OF THIRD AMENDED COMPLAINT
We review de novo the district court’s dismissal of a complaint for failure to
state a claim under Rule 12(b)(6), taking all the factual allegations in the complaint
as true and construing them in the light most favorable to the plaintiffs. Hunt v.
Aimco Properties, L.P.,
814 F.3d 1213, 1221 (11th Cir. 2016). But, we review the
district court’s dismissal of a complaint for failure to comply with Rules 8(a)(2)
and 10(b) for abuse of discretion. Weiland v. Palm Beach Cty. Sheriff’s Office,
792 F.3d 1313, 1319-20 (11th Cir. 2015).
3
The Lucases subsequently filed a motion for relief from the judgment, which asked the
district court to amend its order to dismiss the case without prejudice. The district court denied
that motion.
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Rule 8(a)(2) provides that a complaint “must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Rule 10(b) further provides that the complaint should use “numbered
paragraphs, each limited as far as practicable to a single set of circumstances” and
“[i]f doing so would promote clarity, each claim founded on a separate transaction
or occurrence . . . must be stated in a separate count or defense.” Fed. R. Civ. P.
10(b). Generally, complaints violate these rules because they fail “to give the
defendants adequate notice of the claims against them and the grounds upon which
each claim rests.” Weiland, 792 F.3d at 1323.
To state a claim upon which relief can be granted, and to survive a Rule
12(b)(6) motion, “a complaint must include ‘enough facts to state a claim to relief
that is plausible on its face.’” Hunt, 814 F.3d at 1221 (quoting Bell Atl. Corp. v.
Twombly,
550 U.S. 544, 570,
127 S. Ct. 1955 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal,
556 U.S. 662, 678,
129 S. Ct. 1937, 1949 (2009). To meet this
standard, a plaintiff must allege “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at
555,
127 S. Ct. at 1965.
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The district court did not err in dismissing the third amended complaint for
failure to meet these standards. For example, under Florida law and the terms of
their insurance contract, the plaintiffs must show that they “are legally entitled to
recover damages from owners or operators of uninsured motor vehicles” in order
to recover under their underinsured vehicle insurance. See
Fla. Stat. § 627.727(1).
The third amended complaint, however, alleges no facts about the underlying
accident stating only that the other driver “negligently operated” her vehicle. The
district court had already instructed the Lucases that these allegations were
insufficient when it dismissed the first amended complaint.
In addition, the Lucases named only one count—“underinsured motorist
claim”—but failed to plead a separate claim on behalf of Mr. Lucas. The district
court had already instructed the Lucases that this was improper.
The district court properly dismissed the third amended complaint because it
failed to plead enough factual content to plausibly state a claim for relief and failed
to present a clear statement of the claims alleged.
The district court also properly dismissed with prejudice. Rule 15(a)(2),
which provides that a “court should freely give leave when justice so requires,”
restricts a district court’s authority to dismiss a complaint without leave to amend.
Fed. R. Civ. P. 15(a)(2); Bryant v. Dupree,
252 F.3d 1161, 1163 (11th Cir. 2001)
(per curiam). Generally, the district court must give at least one chance to amend
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before dismissing with prejudice but need not give that chance when (1) “there has
been undue delay, bad faith, dilatory motive, or repeated failure to cure
deficiencies by amendments previously allowed”; (2) “allowing amendment would
cause undue prejudice to the opposing party”; or (3) “amendment would be futile.”
Bryant, 252 F.3d at 1163.
Here, the district court had dismissed the first amended complaint and
allowed the Lucases an opportunity to amend. The Lucases later filed second,
third, and fourth amended complaints. None of those fixed the pleading
deficiencies previously identified by the district court. Because the fourth
amended complaint also did not fix the pleading deficiencies, it was clear that
further amendment would be futile. The district court thus did not err when it
dismissed the case with prejudice.
The Lucases contend that the district court should have applied Florida
procedural rules for the pleading standard and for whether to dismiss with
prejudice. This is incorrect. A federal court sitting in diversity applies the Federal
Rules of Civil Procedure. See Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris,
D.D.S., P.A.,
781 F.3d 1245, 1260 (11th Cir. 2015) (holding that even in diversity
cases the Federal Rules of Civil Procedure apply and state pleading rules do not
apply).
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III. STRIKING OF FOURTH AMENDED COMPLAINT
The district court struck the fourth amended complaint as untimely and
found that there was not good cause to amend the scheduling order. We review the
denial of leave to amend for abuse of discretion, except that we review de novo the
denial of leave to amend based on futility—and thus the sufficiency of the
amended complaint as a matter of law. Florida Evergreen Foliage v. E.I. DuPont
De Nemours & Co.,
470 F.3d 1036, 1040 (11th Cir. 2006) (per curiam).
The district court’s scheduling order set November 18, 2016 as the deadline
to amend pleadings. Following the December 16, 2016 dismissal of their first
amended complaint without prejudice, the Lucases filed their second amended
complaint on December 28, 2016. On January 25, 2017, the district court allowed
the Lucases to amend the second amended complaint even though the deadline to
amend the pleadings had passed. The Lucases filed the third amended complaint
that day (January 25).
At the time the Lucases filed their fourth amended complaint, they had
already amended their second amended complaint once and filed the third amended
complaint but were attempting to amend yet again outside the time allowed by the
scheduling order. See Fed. R. Civ. P. 15(a)(1)(B), 16(b)(3). The district court’s
scheduling orders are controlling and can only be modified by a showing of good
cause. See Fed. R. Civ. P. 16(b)(4); Sosa v. Airprint Sys., Inc.,
133 F.3d 1417,
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1418 (11th Cir. 1998) (per curiam). When a party seeks leave to amend “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).”
Id.
at 1419. “This good cause standard precludes modification unless the schedule
cannot be met despite the diligence of the party seeking the extension.”
Id. at 1418
(internal quotation marks omitted).
Here, as to the fourth amended complaint, we cannot say that the district
court abused its discretion by enforcing the scheduling order deadline for
amending the pleadings. The Lucases did not demonstrate good cause. They had
already made multiple attempts to correct the deficiencies in the complaints and to
comply with the Federal Rules of Civil Procedure and the district court’s order.
This is not a situation where the plaintiffs acted with diligence and still could not
meet the scheduling order’s deadlines. Moreover, the fourth amended complaint
still fails to rectify some deficiencies highlighted by the district court, such as
delineating a separate cause of action on behalf of Mr. Lucas.
IV. CONCLUSION
Based on the foregoing reasons, we affirm.
AFFIRMED.
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