Oppedisano v. Zur

Background

Vincenzo Oppedisano sued Lynda Zur, whom the opinion describes as his former girlfriend and allegedly former business partner. Oppedisano alleged that he and Zur were partners in an aviation business known as a fixed-base operator beginning in 2005. He alleged that Zur later excluded him from the business, misappropriated his partnership share, and rebranded the business with Marshall Myles.

The court previously dismissed Oppedisano’s claim seeking a constructive trust over Zur’s alleged new partnership with Myles. That dismissal was without prejudice because discovery might establish that Oppedisano lacked an adequate remedy at law, that the court had personal jurisdiction over the partnership, and that the partnership participated in or was otherwise subject to the court’s authority concerning the alleged unjust enrichment.

Motion to Amend

Oppedisano moved for leave to file a second amended complaint. The proposed complaint would add Myles, Sigrun Corporation, Fort Lauderdale Executive Jet Center, LLC, Fort Lauderdale 13, LLC, FXE Parcel 14, LLC, and FXE Parcel 15, LLC as defendants. It would assert that Myles aided and abetted Zur’s alleged fraud and breach of fiduciary duty, assert claims to disregard the separate legal identity of Sigrun and the proposed limited liability company defendants, and renew the constructive-trust request.

The scheduling order set October 1, 2021, as the deadline to amend the pleadings or add parties. Oppedisano filed his motion on July 29, 2022. Fact discovery had closed on August 31, 2022, and all discovery was scheduled to close on September 30, 2022. The parties had obtained extensions of the discovery schedule but had not requested an extension of the deadline for amending the pleadings or adding parties.

Legal Standards

Under Federal Rule of Civil Procedure 15(a)(2), courts ordinarily should freely allow amendments when justice requires, absent reasons such as undue delay, bad faith, repeated failure to correct deficiencies, undue prejudice, or futility. An amendment is futile when the proposed complaint would not survive a motion to dismiss, including dismissal for lack of subject-matter jurisdiction or lack of personal jurisdiction.

Rule 21 also applies when a party seeks to add defendants, and gives the court broad discretion to permit changes in the parties. When the deadline in a scheduling order has expired, Rule 16(b)(4) requires the moving party to show good cause for modifying the order. The court stated that good cause generally depends on the moving party’s diligence and that prejudice to the opposing party may also be considered.

Court’s Analysis

Untimeliness and lack of good cause. The court held that the motion was untimely. It rejected Oppedisano’s argument that a parenthetical in the court’s form scheduling order extended the amendment deadline to August 11, 2022. The court explained that the parenthetical provided guidance for completing the form during the parties’ conference; it did not itself establish a deadline.

The court concluded that Oppedisano had not shown diligence. Although he said the proposed amendments were based on information learned in discovery, he did not identify that information. The court found that the proposed factual allegations were based on information that was public or had been in Oppedisano’s possession before the lawsuit began. The court also noted that Oppedisano had already alleged in his original and first amended complaints that Myles and Sigrun were involved in the alleged scheme.

The court further found that Oppedisano had not identified new evidence supporting the addition of the proposed limited liability company defendants. In particular, the proposed complaint indicated that he had known about FXE Parcel 15, LLC since at least October 2011, when he negotiated a lease with the City of Fort Lauderdale on its behalf. The court also found that Oppedisano did not cite new evidence or make specific allegations about the conduct of the other proposed limited liability company defendants.

Prejudice. The court found that allowing the amendment would prejudice Zur. The case had been pending for more than two years, fact discovery had closed, and adding six new defendants could add years to the litigation, particularly because the proposed defendants were expected to contest personal jurisdiction.

Futility based on subject-matter jurisdiction. The court separately concluded that the amendment would be futile because Oppedisano had not shown that the proposed second amended complaint would fall within the court’s subject-matter jurisdiction. The court explained that, for diversity jurisdiction, a limited liability company has the citizenship of each of its members. Oppedisano’s proposed complaint alleged the companies’ states of organization and principal places of business and identified only some members, but did not allege the citizenship of every member.

After the court directed Oppedisano to address the citizenship of each proposed defendant, he repeated the allegations about the companies’ organization and principal places of business and still did not identify every member. The court therefore found that he had not demonstrated that subject-matter jurisdiction would exist.

Futility based on personal jurisdiction. The court also found that the proposed amendment appeared futile as to Myles because Oppedisano alleged only conclusory facts about Myles’s connection to New York. The allegations stated that Myles lived in Canada, had extensive contacts with Zur while she was in New York State, and should have anticipated that his alleged conduct could affect Oppedisano in New York. The court found those allegations insufficient to survive a motion to dismiss for lack of personal jurisdiction.

Constructive-trust claim. Finally, the court found the renewed constructive-trust claim futile. Oppedisano had not followed the court’s earlier instructions to identify facts showing that he lacked an adequate remedy at law, that the court had personal jurisdiction over the partnership, and that the partnership aided or abetted Zur’s alleged unjust enrichment or was otherwise properly subject to the court’s authority.

Disposition

The court denied Oppedisano’s motion for leave to file a second amended complaint. It instructed the Clerk to terminate the motion. The opinion does not state that the motion was denied with or without prejudice.