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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13321
Non-Argument Calendar
____________________
ENVIRONMENTAL PROTECTION COMMISSION OF
HILLSBOROUGH COUNTY, FLORIDA,
Plaintiff-Appellant,
versus
MERCEDES BENZ USA, LLC,
DAIMLER AKTIENGESELLSCHAFT,
Defendants-Appellees,
ROBERT BOSCH, LLC, et al.,
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2 Opinion of the Court 22-13321
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-02238-VMC-MRM
____________________
Before WILSON, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM:
This case centers around “defeat device” software that was
installed in certain diesel Mercedes vehicles from 2007 to 2016, and
the subsequent, post-sale updates that were made to the software.
The defeat devices allowed the vehicles to bypass their emissions
control systems and emit more pollutants when not in an emis-
sions-testing environment. The Environmental Protection Com-
mission of Hillsborough County, Florida (Hillsborough), a unit of
local government, sued Mercedes Benz USA, LLC (Mercedes) and
Daimler Aktiengesellschaft (Daimler) (collectively, Appellants) for
violation of a local ordinance that prohibits tampering with emis-
sions control systems.
The district court dismissed Hillsborough’s fourth amended
complaint with prejudice. After careful review, we AFFIRM.
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22-13321 Opinion of the Court 3
I.
A. Procedural History
Hillsborough is a unit of government responsible for pro-
tecting the local environment and natural resources. On Septem-
ber 24, 2020, Hillsborough initiated this action in the United States
District Court for the Middle District of Florida. 1 That same day,
Hillsborough filed an amended complaint to correct an error in the
signature block. The next day, Hillsborough filed a second
amended complaint to add information regarding the citizenship
of the defendants at the district court’s request.
In February 2021, the district court stayed this case pending
the Supreme Court’s decision on whether to grant certiorari in a
related case. The Supreme Court denied certiorari, see Volkswagen
Group of America, Inc. v. The Environmental Protection Commission of
Hillsborough County, Florida,
142 S. Ct. 521 (2021) (Mem.), and the
district court lifted the stay in November 2021.
Hillsborough moved for leave to amend its complaint to
clarify that—in line with the Ninth Circuit’s ruling in In re
Volkswagen “Clean Diesel” Marketing, Sales Practices, & Products Lia-
bility Litigation,
959 F.3d 1201 (9th Cir. 2020)—it was only alleging
violations arising from post-sale conduct. The district court
granted leave to amend, and Hillsborough filed its third amended
complaint on December 16, 2021. Daimler and Mercedes moved
1Hillsborough also named Robert Bosch, LLC and Robert Bosch GmbH as
defendants but later voluntarily dismissed the claims against them.
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4 Opinion of the Court 22-13321
to dismiss. On April 18, 2022, the district court granted the motion
to dismiss the third amended complaint. In its order, the court
identified deficiencies in the tampering allegations but stated that
Hillsborough might be able to cure them by “plead[ing] greater de-
tail about the software updates, field fixes, and recalls on which its
claims rely.” Thus, the district court stated that Hillsborough could
amend its claims within fourteen days if it wished to do so.
B. Motion for Extension of Time to Amend Claims
On April 28, 2022, Hillsborough moved for a 90-day exten-
sion of time to file its fourth amended complaint. Hillsborough
requested the extension to allow time to supplement its allegations
with information from outstanding records requests it had submit-
ted in March 2022. Hillsborough submitted Freedom of Infor-
mation Act (FOIA) and public records requests to the Environmen-
tal Protection Agency (EPA) and the California Air Resources
Board (CARB) seeking documents pertaining to “post-sale updates
and modifications to the emission control system of the Affected
Vehicles in this action, and their impact on emissions.”
On May 11, 2022, the district court entered an endorsed or-
der denying Hillsborough’s motion for extension of time to file a
fourth amended complaint, finding that the filing of the fourth
amended complaint before the court considered the motion for ex-
tension of time rendered the motion for extension of time moot.
The district court also found that the extension was due to be de-
nied because Hillsborough failed to establish good cause to extend
the amendment deadline by 90 days or more.
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C. Fourth Amended Complaint
On May 2, 2022, Hillsborough filed its fourth amended com-
plaint alleging two claims—one for monetary penalties and one for
injunctive relief—based on the alleged violation of Chapter 1-8,
“Mobile Source,” of the Rules of the Environmental Protection
Commission of Hillsborough County (EPC Rules). Chapter 1-8
was promulgated to implement the Florida Legislature’s intent
as declared in the Environmental Protection Act of
Hillsborough County, to insure the atmospheric pu-
rity and freedom of the air in Hillsborough County
from contaminants or synergistic agents resulting
from the improper use and combustion of fuels in
motor vehicles, or any other air contaminants re-
leased by the improper operation or servicing of mo-
tor vehicles.
EPC Rule 1-8.01. Hillsborough further alleged that Daimler and
Mercedes violated EPC Rule 1-8.05, which provides: “No person
shall tamper, cause, or allow the tampering of the emission control
system of any motor vehicle.” EPC Rule 1-8.05(1).
The fourth amended complaint alleged that Mercedes im-
plemented post-sale software updates to the vehicles’ emissions
control systems. These updates were made available to Mercedes
dealerships via web-based computer programs. When a vehicle
was brought into a dealership for service, the dealership would in-
put the vehicle identification number, which would bring up a list
of any available software updates. These updates were then in-
stalled during the service appointment. Further, the fourth
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amended complaint generally alleged that car manufacturers issue
post-sale software updates pursuant to field fixes or recalls “via
over-the-air updates, wherein vehicles receive software updates via
satellite or Wi-Fi connections.”
On May 16, 2022, Daimler and Mercedes moved to dismiss
the fourth amended complaint. On September 20, 2022, the district
court granted the motion to dismiss with prejudice, concluding
that Hillsborough “has not stated plausible claims for violation of
EPC Rule Chapter 1-8.” In its order, the district court noted the
limited, new allegations that Hillsborough had added to the fourth
amended complaint—specifically, Hillsborough added the phrase
“through field fixes and recall campaigns” throughout and added
allegations from two other lawsuits. But the district court found
that Hillsborough still failed to allege “additional information re-
garding the impact of the field fixes, recalls, or post-sale software
updates on the vehicles’ emission control systems.” Thus, the dis-
trict court held that Hillsborough failed to allege sufficient detail to
plausibly state a claim for post-sale tampering and dismissed both
claims with prejudice.
Hillsborough timely appealed.
II.
We review de novo the district court’s dismissal of a com-
plaint for failure to state a claim. Resnick v. AvMed, Inc.,
693 F.3d
1317, 1324 (11th Cir. 2012). “[A] pleading must contain a ‘short and
plain statement of the claim showing that the pleader is entitled to
relief.’” Ashcroft v. Iqbal,
556 U.S. 662, 677–78 (2009) (quoting Fed.
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22-13321 Opinion of the Court 7
R. Civ. P. 8(a)(2)). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Id. at 678 (quoting Bell
Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A complaint “does
not need detailed factual allegations” to survive a Rule 12(b)(6) mo-
tion to dismiss, but the plaintiff must allege the grounds of its enti-
tlement to relief, which “requires more than labels and conclu-
sions” or “a formulaic recitation of the elements of a cause of ac-
tion.” Twombly,
550 U.S. at 555.
We review for abuse of discretion the district court’s denial
of motions for amendment and for extension of time. See In re Engle
Cases,
767 F.3d 1082, 1109 (11th Cir. 2014); Lizarazo v. Miami-Dade
Corr. & Rehab. Dep’t,
878 F.3d 1008, 1010–11 (11th Cir. 2017). Fed-
eral Rule of Civil Procedure 15 provides that courts “should freely
give leave [to amend pleadings] when justice so requires.” Fed. R.
Civ. P. 15(a)(2). “Rule 15(a)(2) ‘severely restricts’ a district court’s
ability to dismiss with prejudice.” Garcia v. Chiquita Brands Int’l,
Inc.,
48 F.4th 1202, 1220 (11th Cir. 2022) (alteration adopted) (quot-
ing Bryant v. Dupree,
252 F.3d 1161, 1163 (11th Cir. 2001)). A district
court must permit a plaintiff at least one opportunity to amend be-
fore dismissing with prejudice if a more carefully drafted complaint
might state a claim.
Id. However, a district court need not grant
leave to amend where: (1) there is undue delay, bad faith, dilatory
motive, or repeated failure to fix deficiencies; (2) permitting
amendment would cause the opposing party undue prejudice; or
(3) amendment would be futile.
Id.
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III.
Hillsborough argues (1) that dismissal was improper be-
cause the fourth amended complaint was sufficiently pleaded, and
(2) that at a minimum the district court should have permitted an-
other chance to amend prior to dismissal with prejudice. We ad-
dress each argument in turn.
A. Sufficiency of the Allegations in the Fourth Amended
Complaint
First, Hillsborough argues that dismissal was improper be-
cause the fourth amended complaint was sufficiently pleaded un-
der Federal Rule of Civil Procedure 8. We disagree. The allega-
tions of the fourth amended complaint fall short of stating a plausi-
ble claim for relief based on the violation of EPC Chapter 1-8.
Hillsborough alleged that Appellants violated EPC Rule 1-
8.05, which provides: “No person shall tamper, cause, or allow the
tampering of the emission control system of any motor vehicle.”
EPC Rule 1-8.05(1). Here, the EPC Rules’ definition of “tamper-
ing” is important in our analysis of whether Hillsborough plausibly
alleged that Appellants violated the ordinance.
The EPC Rules define “tampering” as “the intentional inac-
tivation, disconnection, removal or other modification of a compo-
nent or components of the emission control system resulting in it
being inoperable.” EPC Rule 1-8.03(2)(h). Further, the EPC Rules
define “inoperable emission control system” as “any emission con-
trol system or component thereof whose operation or efficiency
has been circumvented, defeated, or deleteriously affected by
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improper maintenance, improper up-keep, wear and tear, misfuel-
ling, or tampering.” EPC Rule 1-8.03(2)(c).
Thus, to allege a violation of the ordinance, Hillsborough
needed to allege facts showing that Appellants intentionally modi-
fied the vehicles’ emissions control systems in a way that rendered
the systems inoperable or less efficient. Hillsborough’s allegations
fall short because they do not state that the post-sale software up-
dates made the emission control systems inoperable or less effi-
cient. It is worth emphasizing that Hillsborough is only asserting
claims relating to Appellants’ post-sale activities. This is why Hills-
borough’s allegations fail. The fourth amended complaint does not
allege how—through post-sale activities—Appellants modified the
vehicles’ emissions control systems in such a way that rendered
them inoperable or less efficient. The fourth amended complaint
merely pays lip service to the post-sale software updates without
alleging what effect, if any, the software updates even had on emis-
sions.
The closest Hillsborough gets is by alleging that “numerous
post-sale software updates to the emission control systems . . . have
been implemented and installed throughout the United States,
Florida, and Hillsborough County through field fixes and/or recall
campaigns” and that “every post-sale update that does not remove
the [defeat device] workaround” is illegal. But these allegations
miss the mark because, even taken as true, they do not show how
the updates rendered the emissions control systems inoperable or
less efficient. Thus, the fourth amended complaint does not
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10 Opinion of the Court 22-13321
contain sufficient factual matter to allege a facially plausible viola-
tion of EPC Rule 1-8.05. Iqbal,
556 U.S. at 678.
Hillsborough asserts that the allegations of the fourth
amended complaint sufficiently put Appellants on fair notice of the
claims against them. We disagree. Hillsborough’s allegations
simply provide more detail about how the post-sale software up-
dates occurred. The allegations do not show how Appellants,
through these updates, tampered with the emissions control sys-
tems in a way that violated EPC Rule 1-8.
Hillsborough further argues that the fourth amended com-
plaint’s reference to related litigation—specifically, a lawsuit
against Mercedes brought by the EPA and CARB, and a lawsuit
against Volkswagen involving similar defeat device software—sat-
isfies Federal Rule of Civil Procedure 8. This argument also fails.
Hillsborough simply cannot fill gaps in its allegations via reference
to facts or allegations in other lawsuits. The information about the
other lawsuits does not show how Appellants violated the anti-
tampering ordinance in Hillsborough County.
Thus, dismissal of Hillsborough’s claims with prejudice was
proper because the fourth amended complaint fails to “state a claim
to relief that is plausible on its face.” Twombly,
550 U.S. at 570. We
affirm the district court’s dismissal with prejudice.
B. Extension of Time to Amend Claims
Second, Hillsborough argues the district court erred by not
allowing another opportunity to amend, especially after Hills-
borough demonstrated it could provide additional detail regarding
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22-13321 Opinion of the Court 11
the impact of the post-sale updates. We disagree that another
chance to amend was warranted under the circumstances.
Here, even disregarding Hillsborough’s first two amend-
ments (which made non-substantive changes), Hillsborough still
had two opportunities (in its third and fourth amended complaints)
over the span of roughly six months to substantively amend its
claims after the stay was lifted in November 2021. In ruling on Ap-
pellants’ motion to dismiss the third amended complaint, the dis-
trict court found Hillsborough’s allegations to be deficient, specifi-
cally identified the type of information needed to cure the deficien-
cies, and gave Hillsborough a chance to amend within fourteen
days. After finding the allegations in the fourth amended com-
plaint were still deficient, the district court dismissed Hills-
borough’s claims with prejudice. The district court acted within its
discretion in dismissing with prejudice because it had already
granted Hillsborough at least one chance to amend. Garcia, 48
F.4th at 1220.
Hillsborough also contends that an extension of time to file
a fourth amended complaint—past the fourteen days that the dis-
trict court ordered—was warranted to allow time for it to add in-
formation from the FOIA and public records requests to EPA and
CARB. We are unpersuaded. Hillsborough had roughly six
months to seek and obtain discovery between the time the stay was
lifted in November 2021 and the filing of its fourth amended com-
plaint in May 2022. But Hillsborough did not submit its FOIA and
public records requests until March 2022—four months after the
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stay was lifted. We are disinclined to find that the district court
abused its discretion in denying an extension of time to amend un-
der these circumstances, and in all events, district courts have wide
latitude in managing their dockets. Adinolfe v. United Techs. Corp.,
768 F.3d 1161, 1167 (11th Cir. 2014) (“District courts have broad
discretion in deciding how best to manage the cases before them.”
(internal quotation marks omitted)).
Thus, the district court acted within its discretion in denying
Hillsborough an extension of time to amend its claims. Accord-
ingly, we affirm.
AFFIRMED.
