The opinion
FINO RT HTEH EU NMIITDEDDL SET DAITSTERS IDCITS TORFI CATL ACBOAUMRTA
NORTHERN DIVISION
AMERICAN ALLIANCE FOR )
EQUAL RIGHTS, )
)
Plaintiff, )
)
v. ) Case No. 2:24-cv-00104-RAH
) [WO]
KAY IVEY, in her official capacity as )
Governor of the State of Alabama, )
)
Defendant, )
)
v. )
)
ALABAMA ASSOCIATION OF )
REAL ESTATE BROKERS, )
)
Intervenor Defendant. )
MEMORANDUM OPINION AND ORDER
INTRODUCTION
Pending before the Court is Plaintiff American Alliance For Equal Rights’
(AAER) Motion Under Fed. R. Civ. P. 21 to Substitute Laura Clark as Plaintiff.
(Doc. 84.) In its motion, AAER requests that Laura Clark, identified in the
Complaint as Member A, be substituted as the party-plaintiff in the place of AAER.
The motion is due to be denied.
BACKGROUND
When AAER initiated this lawsuit on February 13, 2024, AAER made the
conscious decision not to name Clark as a party-plaintiff in its Complaint, although
AAER’s Complaint largely was premised upon Clark’s last-minute action in seeking
an appointment to the Alabama Real Estate Appraisers Board (AAREB). Instead,
AAER declared itself the plaintiff and identified Clark as Member A.
On July 17, 2024, the Court denied AAER’s motion for judgment on the
pleadings and directed the parties to conduct discovery concerning the issue of
AAER’s “Article III standing and its facial challenge.” (Doc. 71 at 10.) That same
day, the Court also issued its Scheduling Order that set September 13, 2024, as the
deadline to file amended pleadings and April 11, 2025, as the discovery cutoff
deadline. (See Doc. 72.) The discovery cutoff deadline subsequently was extended
to June 11, 2025. (See doc. 86.)
On March 19, 2025—long after the deadline to file amended pleadings passed
and on the eve of the expiration of the discovery cutoff deadline—AAER filed the
present motion in which it requests leave to substitute Clark for itself as the party-
plaintiff. (Doc. 84.) Defendant Governor Kay Ivey and Intervenor-Defendant
AAREB oppose the substitution request. (Doc. 87; Doc. 88.)
LEGAL STANDARD
AAER brings its motion under Federal Rule of Civil Procedure 21. Under
Rule 21, “the court may at any time, on just terms, add or drop a party.” Fed. R.
Civ. P. 21. However, under Federal Rule of Civil Procedure 16(b), a scheduling
order may only be modified “upon a showing of good cause.” Sosa v. Airprint Sys.,
Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) (per curiam) (quoting Fed. R. Civ. P.
16(b)). “Th[e] good cause standard precludes modification unless the schedule
cannot ‘be met despite the diligence of the party seeking the extension.’” Id.
(citations omitted). Some courts in this Circuit have concluded that “[w]hen
determining whether dropping a party would be ‘just’ under Rule 21, [they] evaluate
whether dismissal of parties would cause substantial prejudice.” Berntheizel v.
Safeco Ins. Co. of Ill., 343 F.R.D. 657, 661 (S.D. Fla. 2023) (citing Carucel Invs.,
L.P. v. Novatel Wireless, Inc., 157 F. Supp. 3d 1219, 1223 (S.D. Fla. 2016)); see also
Luxor Agentes Autonomos de Investimientos Ltda. v. Intertransfers, Inc., 638 F.
App’x 925, 927 (11th Cir. 2016) (per curiam).
DISCUSSION
AAER argues that substituting Clark “will simplify this ligation for the parties
and the Court” and will not cause prejudice to any party because Clark “will proceed
in the same manner as [AAER], with the same counsel, and with the same claim and
allegations.” (Doc. 84 at 3–4.) Governor Ivey and AAREB assert that AAER has
failed to establish good cause for the substitution and that AAER’s motion is merely
an effort to avoid AAER’s discovery obligations. In addition, AAREB argues that
AAER’s tardy substitution request would cause substantial prejudice because
AAREB would need “to reconsider its discovery strategy in the face of a party
substitution right before noticed depositions take place, incur certain additional
costs, and cause unnecessary delay.” (Doc. 88 at 10.) In its Reply, AAER contends
that the good cause standard does not apply because the cases cited by Governor
Ivey and AAREB “concerned a motion to amend the pleadings under Rule 15 or
Rule 16.” (Doc. 89 at 2.)
AAER’s substitution request is due to be denied. As an initial matter, it is
questionable whether Rule 21 is the appropriate basis for AAER’s motion. Rule 21
does not expressly provide for substitution in the manner that AAER seeks. See,
e.g., Sable Commc’ns of Cal. Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 191 n.13
(9th Cir. 1989) (“Nothing on the face of Rule 21 allows substitution of parties. The
rule by its terms creates means to cure misjoinder of parties.” (cleaned up and
citation omitted)). As for good cause, some courts have determined that the good
cause standard applies when a party asserts Rule 21 as the basis to add a party after
the deadline to amend the pleadings in the scheduling order has passed. See, e.g.,
Blazkowski v. Natura Pet Prods., Inc., No. 07-21221-CIV, 2008 WL 11408621, at
*5 (S.D. Fla. Oct. 8, 2008) (stating that the “[p]laintiffs have hardly shown ‘good
cause’ to justify modifying the Court’s Scheduling Order by adding [an individual]
as a party at this late stage”); Otegbade v. N.Y.C. Admin. for Child. Servs., No. 12
Civ. 6298, 2015 WL 851631, at *2 (S.D.N.Y. Feb. 27, 2015) (citations omitted)
(stating that “requested amendments under Rule 21 are subject to the good cause
standard of Rule 16 once a deadline to join parties in a scheduling order has
elapsed”).
Here, AAER fails to demonstrate good cause—or even argue it—for its
belated (nearly six months late) attempt to change out the party-plaintiff in this case.
AAER easily could have sought this substitution long ago and certainly before the
amended pleading deadline expired. It made a strategic decision not to do so, and it
offers no explanation for why.1 Perhaps that is because there is no legitimate
argument for good cause here.
Good cause aside, the standard for deciding a motion for leave to add parties
under Rule 21 generally is the same as the standard under Rule 15(a) for a motion
seeking leave to file an amended complaint. See Loggerhead Turtle v. Cnty. Council
of Volusia Cnty., 148 F.3d 1231, 1255 (11th Cir. 1998). Under Rule 15, a court may
deny leave to amend for reasons such as undue delay, bad faith, dilatory motive,
undue prejudice to the defendants, and futility of the amendment. Id. With respect
to Rule 21, some courts have measured the undue prejudice inquiry by a level of
substantiality. See Berntheizel, 343 F.R.D. at 661.
There is undue prejudice, dilatory motive, undue delay and bad faith here.
Allowing a substitution of the party-plaintiff at this late point—just before the
expiration of the already-extended discovery deadline—would require that new
deadlines be imposed, discovery strategies be altered, and additional costs imposed.
For example, there is significantly more expense and difficulty in obtaining
1 The parties disagree about the applicability of Mullaney v. Anderson, 342 U.S. 415 (1952), to the
present case. While it is true that Mullaney involved the use of Rule 21 to add parties as plaintiffs
at the appellate level, the Supreme Court permitted the addition to cure a jurisdictional defect.
Mullaney, 342 U.S. at 416–17. That is not present here.
discovery from AAER, as an out-of-state nonparty, than in obtaining that same
discovery from AAER as a party. Further, AAER unduly delayed in attempting to
add Clark as party-plaintiff considering that the Scheduling Order in this case
imposed a deadline of September 13, 2024, by which to amend the pleadings, and
AAER failed to seek substitution before that deadline. Lastly, it is easily inferred, as
Governor Ivey and the AAREB note, that AAER’s real motive and purpose in
seeking this belated substitution is to avoid having to sit for a deposition, which
evidences a dilatory motive and bad faith.
What does appear clear is that AAER declared itself the jockey in a race that
it started and has ridden this horse in this manner since February 2024. Clark could
have been the jockey from the outset, but AAER chose not to proceed in that manner.
Similarly, AAER could have switched riders (1.e., Clark for AAER) well before the
amended pleadings deadline. Instead, AAER rode on. It was not until AAREB
asked for AAER’s deposition that AAER decided that it wanted off the horse and to
change jockeys during the last furlong, so as to avoid giving a deposition. The Court
will not tolerate such tactics. Justice does not sanction a substitution at this point,
especially when undue delay, dilatory motive, prejudice, and bad faith abound.
Accordingly, AAER’s motion is due to be denied.
CONCLUSION
For the reasons stated above, Plaintiff American Alliance For Equal Rights’
Motion Under Fed. R. Civ. P. 21 to Substitute Laura Clark as Plaintiff (doc. 84) is
due to be and is DENIED.
DONE, on this the 17th day of April 2025.
R. EG 3 Moo JR.
UNITED STATES DISTRICT JUDGE