Opinion
CASE NO. 20-61307-CIV-SINGHAL/VALLE
2021-12-21
VITAL PHARMACEUTICALS, INC. d/b/a VPX Sports/Redline/Bang Energy, Plaintiff, v. Christopher ALFIERI, et al., Defendants.
Peter Ronai Goldman, Nina Christine Welch, Scott Douglas Knapp, Nelson Mullins Broad and Cassel, Fort Lauderdale, FL, Stephanie Souraya Khouri, Vital Pharmaceuticals, Inc., Weston, FL, Gregg Howard Metzger, Law Office of Gregg H. Metzger, Pembroke Pines, FL, for Plaintiff. Patrick H. Gonyea, Law Firm of Patrick H. Gonyea, P.A. Law Firm of Patrick H. Gonyea, P.A., Tampa, FL, for Defendants Christopher Alfieri 6289 Fernstone Trail NW Acworth, Ga 30101, Andrew LaRocca 28 McEvers Branch Court Acworth, Ga 30101. Mark Jay Berkowitz, Fort Lauderdale, FL, for Defendant Amy Maros 871 Bowens Mill Hwy Fitzgerald, Ga 31750. Chris Kleppin, The Kleppin Firm, P.A., Plantation, FL, Robert William Wilkins, Jones Foster PA, West Palm Beach, FL, for Defendant Elegance Brands, Inc. c/o Raj Beri 8605 Santa Monica Blvd PMB 39154 West Hollywood, CA 90069-4109.
Peter Ronai Goldman, Nina Christine Welch, Scott Douglas Knapp, Nelson Mullins Broad and Cassel, Fort Lauderdale, FL, Stephanie Souraya Khouri, Vital Pharmaceuticals, Inc., Weston, FL, Gregg Howard Metzger, Law Office of Gregg H. Metzger, Pembroke Pines, FL, for Plaintiff.
Patrick H. Gonyea, Law Firm of Patrick H. Gonyea, P.A. Law Firm of Patrick H. Gonyea, P.A., Tampa, FL, for Defendants Christopher Alfieri 6289 Fernstone Trail NW Acworth, Ga 30101, Andrew LaRocca 28 McEvers Branch Court Acworth, Ga 30101.
Mark Jay Berkowitz, Fort Lauderdale, FL, for Defendant Amy Maros 871 Bowens Mill Hwy Fitzgerald, Ga 31750.
Chris Kleppin, The Kleppin Firm, P.A., Plantation, FL, Robert William Wilkins, Jones Foster PA, West Palm Beach, FL, for Defendant Elegance Brands, Inc. c/o Raj Beri 8605 Santa Monica Blvd PMB 39154 West Hollywood, CA 90069-4109.
ORDER
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE THIS CAUSE is before the Court on two motions: (1) Defendant Christopher Alfieri's Motion to File Answer and Affirmative Defenses Out-of-Time, Nunc Pro Tunc (DE [131]); and (2) Defendant Andrew LaRocca's Motion to File Amended Answer and Affirmative Defenses (DE [132]). The Court has also considered the Responses in Opposition (DE [135], [136]) and Replies (DE [139], [140]). For the reasons discussed below, the Court denies the Motions.
I. BRIEF BACKGROUND
Plaintiff Vital Pharmaceuticals, Inc. ("VPX") filed its original Complaint (DE [1]) in July 2020 alleging violations of non-compete and non-solicitation covenants with Defendants Alfieri and LaRocca. Alfieri's prior counsel withdrew from representing him in December 2020 (DE [61]), and Alfieri proceeded pro se. In April 2021, VPX filed an Amended Complaint (DE [76]) to add a claim against the corporate defendant, but the claims against the individual Defendants remained the same. Alfieri's responsive pleading was due on May 7, 2021. He failed to respond to the Amended Complaint by the deadline.
On December 4, 2021, Alfieri's new counsel filed a Notice of Appearance (DE [129]). Counsel files this current Motion (DE [131]) requesting that the Court accept Alfieri's late-filed Answer (DE [130]) to the Amended Complaint. Counsel notes that Plaintiff will not be prejudiced by the late-filed Answer because Plaintiff failed to move for a default against Alfieri and Alfieri has been cooperating with all discovery requests. VPX deposed Alfieri on December 4, 2021.
Defendant LaRocca's prior counsel also withdrew from representing him in December 2020 (DE [61]). LaRocca's new counsel filed a Notice of Appearance in January 2021 (DE [66]) and timely filed LaRocca's Answer (DE [78]) to the Amended Complaint. Counsel files this Motion for Leave (DE [132]) to file an Amended Answer and Affirmative Defenses (DE [132-1]), adding four new affirmative defenses. He notes that, although the amended pleading deadline passed on November 29, 2020, see (DE [41]), he has shown good cause to amend his Answer because counsel was not familiar with the case when he filed the original Answer, and LaRocca has meritorious defenses to Plaintiff's claims. Discovery is set to close on January 14, 2022 (DE [74]), but there is currently a non-ripe, pending motion by Defendant Elegance Brands, Inc. to extend the discovery deadline (DE [137]). LaRocca and Alfieri's counsel has also filed a Notice of Intent (DE [133]) to rely on four new affirmative defenses relating to the unlawful liquidated-damages clause and fraudulent inducement.
II. LEGAL STANDARD
"[W]hen 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." Sosa v. Airprint Sys., Inc. , 133 F.3d 1417, 1418 n.2 (11th Cir. 1998) (citations omitted). Under Rule 16, a scheduling order "may be modified only for good cause ...." Fed. R. Civ. P. 16(b)(4) ; see also Robertson v. Interactive Coll. of Tech./Interactive Learning Sys., Inc. , 743 F. App'x 269, 272 (11th Cir. 2018) ("Once a scheduling order is entered, a party must demonstrate good cause for seeking leave to amend its [pleading] after the deadline." (citations omitted)). "This good cause standard precludes modification unless the schedule cannot ‘be met despite the diligence of the party seeking the extension.’ " Sosa , 133 F.3d at 1418 (quoting Fed. R. Civ. P. 16 advisory committee's note).
Further, "[c]ourts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education." Copeland v. Hous. Auth. of Hollywood , 358 F. App'x 144, 144 (11th Cir. 2009) (quoting GJR Inv., Inc. v. Cty. of Escambia , 132 F.3d 1359, 1369 (11th Cir. 1998) ). But "pro se litigants are still required to conform to procedural rules." Jacox v. Dep't of Def. , 291 F. App'x 318, 318 (11th Cir. 2008).
III. DISCUSSION
VPX argues that Alfieri has not shown good cause to amend his Answer because the discovery deadline is set to close soon, the facts supporting his newly asserted affirmative defenses were known before the amendment deadline, VPX will be prejudiced by the amendment this late in the litigation, and Alfieri's then-pro se status does not excuse his compliance with procedural rules.
The Court agrees with VPX. The record indicates that Alfieri knew of the underlying facts supporting his newly asserted affirmative defenses—impermissible liquidated-damages clauses and fraudulent inducement—since July 2020 because none of the claims against Alfieri were changed between the original and Amended Complaints. Indeed, Alfieri does not point to any new information gleaned during discovery that revealed this need to amend; he just notes that prior counsel simply did not realize these defenses existed. See Resp. in Opp'n 1–2 (DE [139]). Further, Alfieri now substantively denies certain allegations that he had previously admitted in the original Answer. Compare Answer ¶¶ 63–64 (DE [44]), with Am. Answer ¶¶ 63–64 (DE [132-1]). Thus, the Court does not find good cause to allow Alfieri to file an Amended Answer asserting new affirmative defenses after the amendment deadline has passed. See Valpak Direct Mktg. Sys., Inc. v. Maschino , 349 F. App'x 368, 370–71 (11th Cir. 2009) (holding that there was no good cause to amend a pleading after the amendment deadline where "the facts underlying the proposed amendment were actually known or could have been discovered with the exercise of due diligence in advance of the amendment deadline").
Alfieri responds that he "did not intend for there to be an inconsistency in his answers to the complaints[.]" Resp. in Opp'n 5 (DE [139]).
Nor does the Court find that Alfieri's then-pro se status changes the result. Although Alfieri was pro se when the Amended Complaint was filed, he was not pro se when his original Answer to the Complaint was filed, at which time his counsel knew of the existence of the agreements at issue in this case. Further, Alfieri made no effort to respond to the Amended Complaint since its filing almost eight months ago. While pro se litigants should be afforded leniency, they are not excused from complying with procedural rules, including Rule 16(b)(4). VPX has agreed to allow Alfieri's counsel to file an Amended Answer and Affirmative Defenses that is consistent with the original Answer such that no new defenses are raised. See Reply 12 (DE [135]). The Court will allow this so that the record contains Alfieri's responsive pleading to the operative Amended Complaint.
Next, VPX similarly argues that LaRocca has not demonstrated good cause to amend his Answer to the Amended Complaint for the same reasons as Alfieri above (minus the pro se status). Applying the same reasoning, the Court agrees and finds that LaRocca knew of the facts underlying the newly asserted affirmative defenses and therefore has not demonstrated good cause to amend his Answer.
Lastly, VPX asks the Court to strike Alfieri and LaRocca's Notice of Intent (DE [133]) to rely on the affirmative defenses. The Court declines to do so. As Alfieri and LaRocca correctly point out, the Eleventh Circuit has held that a defendant may rely on an affirmative defense even if it is not pleaded in an answer, as long as the plaintiff is not surprised by it. See Hewitt v. Mobile Research Tech., Inc. , 285 F. App'x 694, 696 (11th Cir. 2008) ("When a plaintiff has notice that an affirmative defense will be raised at trial, the failure of the defendant to plead the affirmative defense does not prejudice the plaintiff, and it is not error for the district court to hear evidence on the issue." (citing Hassan v. U.S. Postal Serv. , 842 F.2d 260, 263 (11th Cir. 1988) )).
Here, although the Court is denying Defendants’ request to include these newly raised affirmative defenses in their Answers, VPX now has notice of the affirmative defenses. The Court is not ruling, as a matter of law, that Defendants may not rely on these affirmative defenses at some later stage of the litigation. See, e.g. , Gottlieb & Gottlieb, P.A. v. Crants , 657 F. App'x 920, 923 (11th Cir. 2016) ("The plaintiff has notice of an affirmative defense when, for example, the defendant addresses the specific unpled defense in pretrial filings , raises the defense in a motion for summary judgment, or litigates the defense without objection[.]" (emphasis added) (internal citations omitted)); Grant v. Preferred Research, Inc. , 885 F.2d 795, 797 (11th Cir. 1989) ("[I]f a plaintiff receives notice of an affirmative defense by some means other than pleadings , ‘the defendant's failure to comply with Rule 8(c) does not cause the plaintiff any prejudice.’ " (emphasis added) (quoting Hassan , 842 F.2d at 263 )). Accordingly, the Court will not strike the Notice of Intent (DE [133]). It is therefore
ORDERED AND ADJUDGED that:
1. Alfieri's Motion to File Answer and Affirmative Defenses to Plaintiff's Amended Complaint Out-of-Time, Nunc Pro Tunc (DE [131]) is DENIED .
2. Alfieri's Answer and Affirmative Defenses to the Amended Complaint (DE [130]) is STRICKEN . But, within 3 days of this Order , Alfieri is permitted to file an Answer to the Amended Complaint that is consistent with his original Answer, as agreed to by the parties.
3. LaRocca's Motion to File Amended Answer and Affirmative Defenses to Plaintiff's Amended Complaint (DE [132]) is DENIED .
4. Alfieri and LaRocca's Notice of Intent (DE [133]) REMAINS on the docket.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 21st day of December 2021.