AEGIS Security Insurance Company v. MW Industrial Services, Inc.

Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AEGIS SECURITY INSURANCE 	)
COMPANY, 	)
)
Plaintiff/ 	)
Counterclaim Defendant, 	)
)
v. 	) 	CIVIL ACT. NO. 1:23-cv-374-TFM-C
)
MW INDUSTRIAL SERVICES, INC., 	)
)
Defendant/ 	)
Counterclaim Plaintiff/ 	)
Third-Party Plaintiff, 	)
)
v. 	)
)
MAHORSKY GROUP, INC., et al. , 	)
)
Third-Party Defendants. 	)
ORDER
Pending before the Court are the following motions: (1) Motion for Leave to File
Crossclaim Out of Time (Doc. 119, filed March 18, 2025) and (2) Motion to Stay Hearing of
Plaintiff’s Motion for Preliminary Injunction (Doc. 162, filed June 25, 2025). 	The Court will
address the motions in turn but, first, must address an administrative matter.
Due to the Court’s congested criminal trial docket, and in close consultation with the
parties, the Court was unable to hear oral argument for the Motion for Preliminary Injunction and
for Specific Performance of Agreements of Indemnity for Deposit of Collateral by MWIS (Doc.
124, filed March 28, 2025), as well as the other outstanding motions, until Thursday, June 26,
2025. Consequently, to allow time for the Court to issue rulings on those outstanding motions that
are now ripe, the remaining deadlines in the Superseding Rule 16(b) Scheduling Order (Doc. 106),
Case 1:23-cv-00374-TFM-C Doc# 164 Filed 06/30/25 Page 1 of 6 PageID#
<pageID>

Page 2 of 6
as amended (Doc. 122), are SUSPENDED. The trial of this matter is generally RESET, and this
matter is REFERRED to the assigned Magistrate Judge to modify the scheduling order as
needed and in accordance with this Order.
As to the motions that are before the Court, in Plaintiff/Counterclaim Defendant Aegis
Security Insurance Company’s (“Aegis”) motion for leave to file out of time (Doc. 119), it motions
the Court, pursuant to Fed. R. Civ. P. 15, grant it leave to file out of time a conditional crossclaim
against Third-Party Defendant The Mahorsky Group, Inc. (“MGI”), pending the Court ruling on
certain motions: Third-Party Defendants Scott Mahorsky, The Mahorsky Group, Inc., Jesse
Bingaman, and Brick Procurement, Inc.’s (“the Mahorsky Defendants”), motion for summary
judgment (Doc. 102) and Aegis’ motion to dismiss counterclaim (Doc. 91). 	Aegis’ proposed
conditional crossclaim brings claims against MGI for (1) breach of surety agent agreement, (2)
negligent and wanton misconduct, and (3) fraud and misrepresentation. Doc. 119-1. Aegis states
the motion for leave to file out of time is unopposed by Defendant/Counterclaim Plaintiff/Third-
Party Plaintiff MW Industrial Services, Inc. (“MWIS”) but is opposed by MGI. 	Doc. 119 at 3.
The Court entered a show cause order for any party who opposed the motion for leave to file out
of time to file an opposition by March 25, 2025 (Doc. 120), and the Mahorsky Defendants timely
filed their opposition (Doc. 123).
The Mahorsky Defendants argue, while Aegis’ motion for leave to file out of time is
brought pursuant to Fed. R. Civ. P. 15, it must first meet Fed. R. Civ. P. 16(b)’s good cause
standard since the Court’s scheduling order would be affected. 	Id. 	The Mahorsky Defendants
argue Aegis cannot meet the good cause standard because Aegis has not addressed the diligence
they employed to pursue their conditional counterclaims nor the prejudice to MGI. Id. Further,
even if the Court finds Aegis has met the good cause standard, the Mahorsky Defendants argue
Case 1:23-cv-00374-TFM-C Doc# 164 Filed 06/30/25 Page 2 of 6 PageID#
<pageID>

Page 3 of 6
the motion for leave to file out of time should be denied for undue delay and prejudice to MGI
pursuant to Fed. R. Civ. P. 15(a)(2). Id. Specifically, the Mahorsky Defendants argue Aegis knew,
or should have known, the facts and theories that are raised in their proposed conditional
crossclaims when MWIS filed its counterclaims on August 30, 2024, and the proposed conditional
crossclaims will require them to expend significant additional resources to conduct discovery and
prepare for trial. Id.
Once the Court has entered a pretrial scheduling order, pursuant to Fed. R. Civ. P. 16, and
set a deadline by which the parties may amend their pleadings, Fed. R. Civ. P. 16’s good cause
standard must be met by the party that intends to amend their pleading after the deadline has passed
before the standards of Fed. R. Civ. P. 15(a) are applied to the party’s request. Sosa v. Airprint
Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998). 	“A schedule may be modified only for good
cause and with the judge’s consent.” FED. R. CIV. P. 16(b)(4). “[W]hen a party seeks to extend
an expired deadline, the court may do so for good cause if that party failed to act because of
excusable neglect.” Burgen v. Pine Enters. LLC, 2023 U.S. App. LEXIS 26471, at *3, 2023 WL
6486476, at * 1 (11th Cir. Oct. 5, 2023)1 (citing FED. R. CIV. P. 6(b)(1)(B)). “To establish good
cause, a party must show that it could not meet the applicable deadlines despite due diligence.”
Id. (citing Sosa, 133 F.3d at 1418).
If the party that requests to file an amended pleading past the prescribed deadline has met
the good cause standard of Fed. R. Civ. P. 16, then “[t]he court should freely give leave [for a party
to amend its pleading] when justice so requires.” FED. R. CIV. P. 15(a)(2). 	“Although leave to
1 In this Circuit, “[u]npublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 	11th Cir. R. 36-2 (effective Dec. 1, 2014); see also Henry v.
Comm’r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (“Cases printed in the Federal
Appendix are cited as persuasive authority.”).
Case 1:23-cv-00374-TFM-C Doc# 164 Filed 06/30/25 Page 3 of 6 PageID#
<pageID>

Page 4 of 6
amend shall be freely given when justice so requires, a motion to amend may be denied on
numerous grounds such as undue delay, undue prejudice to the defendants, and futility of the
amendment.” Mann v. Palmer, 713 F.3d 1306, 1316 (11th Cir. 2013) (quoting Maynard v. Bd. of
Regs. Of the Div. of Univs. of the Fla. Dep’t of Educ. ex rel. Univ. of S. Fla., 342, F.3d 1281, 1287
(11th Cir. 2003)).
Here, Aegis’ motion for leave to file out of time was filed almost seven (7) months after
MWIS filed its counterclaims on which Aegis’ proposed conditional crossclaims are premised.
Compare Doc. 78 with Doc. 119. 	The deadline for the parties to amend their pleadings was
October 9, 2024. Doc. 77. However, the request to assert the crossclaims is conditioned on the
outcome of certain dispositive motions that are pending before the Court, and Aegis’ position in
its pending motion to dismiss counterclaims and motion for preliminary injunction aligns with the
Mahorsky Defendants’ interests as to the fraud-related claims. Given Aegis’ request is conditioned
on whether the fraud-related claims are dismissed, pursuant to Fed. R. Civ. P. 12(b)(6), the Court
finds good cause to allow it to file its proposed conditional crossclaims out of time and did not
unduly delay its request to file them. Further, since the trial of this matter has generally been reset,
with a final date to be set by the assigned Magistrate Judge after consulting with the parties, the
Court finds the Mahorsky Defendants will not be prejudiced by the newly asserted crossclaims.
Accordingly, the Motion for Leave to File Crossclaim Out of Time (Doc. 119) is
GRANTED, and Aegis is ORDERED to separately file by July 7, 2025, its conditional
crossclaim against MGI (Doc. 119-1). An answer or other responsive pleading to the pleading is
DUE in accordance with Fed. R. Civ. P. 15(a)(3).
In the Mahorsky Defendants’ motion to stay hearing (Doc. 162), they motion the Court
stay the hearing that is set for Plaintiff’s Motion for Preliminary Injunction and for Specific
Case 1:23-cv-00374-TFM-C Doc# 164 Filed 06/30/25 Page 4 of 6 PageID#
<pageID>

Page 5 of 6
Performance of Agreements of Indemnity for Deposit of Collateral by MWIS (Doc. 124). 	In
support of the motion, the Mahorsky Defendants note, at the scheduled hearing, the Court intends
to hear argument for several motions: (1) Plaintiff Aegis[ Security Insurance Company]’s
[(“Aegis”)] Motion to Dismiss Counterclaim of MWIS, or Alternatively for Judgment on the
Pleadings and Incorporated Memorandum of Law (Doc. 91); (2) Aegis’ Motion for Leave to File
Crossclaim Out of Time (Doc. 119); and (3) Motion for Preliminary Injunction and for Specific
Performance of Agreements of Indemnity for Deposit of Collateral by MWIS (Doc. 124). 	The
Mahorsky Defendants argue MWIS intends to introduce at the hearing substantial evidence that
will, in effect, argue against the Mahorsky Defendants’ previously denied motion for summary
judgment. 	Doc. 162 at 2. 	The Mahorsky Defendants argue to allow MWIS to make such
arguments would disadvantage the Mahorsky Defendants because it would not be able to defend
their position. Id.
The Court notes the pending motions that are to be argued at the hearing apply different
standards from the Fed. R. Civ. P. 56 motion that the Mahorsky Defendants filed (and was denied
until discovery is completed), and therefore, the rulings on those motions would not apply to any
subsequently filed Fed. R. Civ. P. 56 motion. 	Further, if it is now the Mahorsky Defendants’
position that their interest is not adequately protected, they could have filed a brief to do so. The
Mahorsky Defendants filed a Motion and Joinder of Argument2 on the same date as their instant
motion in which they state they join Aegis’ motion to dismiss and provide brief argument in
support of the motion, but there was ample time for them to file more robust briefing prior to when
they filed their motion to stay. Doc. 157. Of the motions that are set to be argued at the June 26,
2 The Motion and Joinder of Argument does not request anything of the Court but is styled as a
notice that they join Aegis’ motion to dismiss. Doc. 157. Therefore, the Court will treat the Motion
and Joinder of Argument as a notice, rather than a motion that requires a ruling from the Court.
Case 1:23-cv-00374-TFM-C Doc# 164 Filed 06/30/25 Page 5 of 6 PageID#
<pageID>

Page 6 of 6
2025 hearing, briefing for the most recently filed motion was due by April 25, 2025, approximately
two months before the Court could hear oral argument for the motions and approximately two
months, less one day, before the Mahorsky Defendants filed their instant motion to stay.
Regardless, at oral argument, the Court granted the Mahorsky Defendants an opportunity
to file a supplemental brief. Accordingly, the motion to stay hearing (Doc. 162) is DENIED. The
Mahorsky Defendants are GRANTED leave to file by July 3, 2025, their supplemental brief, and
any responses to the supplemental brief are due by July 11, 2025.
DONE and ORDERED this 30th day of June 2025.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE
Case 1:23-cv-00374-TFM-C Doc# 164 Filed 06/30/25 Page 6 of 6 PageID#
<pageID>