Schwarz et al v. Board of Supervisors et al

Filing 92

ORDER granting 83 Motion for Leave of Court to Add Parties and to File Third Amended Complaint; and granting in part 91 the parties' Joint Motion to Extend Certain Pre-Trial Deadlines. Signed by Magistrate Judge Philip R. Lammens on 10/17/2013. (AR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
LOUIS SCHWARZ, DORIS SCHWARZ,
JANICE HICKEY, THOMAS HICKEY,
BERNIE BROWN, ELIZABETH
HOLST, STEPHEN HOLST, JOANNA
LANGLAIS, FRANCIS LANGLAIS,
PATRICIA SMART, ROBERT SMART,
RICHARD MCELWAIN, BYRON
ZIMMERMAN, SHIRLEY
ZIMMERMAN, JOHN WILSON,
CHARLES MARTIN, RANDALL
WALKER, EVELYN WALKER,
MAUREEN OSGOOD, CAROLE PAUL,
MARY KAY PICKERING, ANDREW
ST. JOHN, KAREN RUSSELL,
CLARENCE RUSSELL, RICHARD
WOODS, LINDA WOODS, ROBERT
MCDEVITT and LYNN STIRLING,
Plaintiffs,
v.

Case No: 5:12-cv-177-Oc-34PRL

THE VILLAGES CHARTER SCHOOL,
INC., THE VILLAGE CENTER
COMMUNITY DEVELOPMENT
DISTRICT and SUMTER LANDING
COMMUNITY DEVELOPMENT
DISTRICT
Defendants.

ORDER
This matter is before the Court on Plaintiffs’ Motion for Leave of Court to Add Parties
and to File Third Amended Complaint. (Doc. 83). Defendant, The Villages Charter School, Inc.
(“College”) filed a response in opposition (Doc. 88), to which Plaintiffs filed a reply. (Doc. 88).
Plaintiffs represent that Defendants, the Village Center Community Development District and

the Sumter Landing Community Development District (collectively referred to as the “CDD”)
have no objection to the motion. Also pending is the parties’ Joint Motion to Extend Certain
Pre-Trial Deadlines. (Doc. 91).
Plaintiffs, who are deaf residents of the Villages, Florida, brought this action against
Defendants for injunctive relief and damages for violations of the Americans with Disabilities
Act and the Fair Housing Act. Kathleen McElwain, Herbert Pickering, Barbara Achin, Ronald
Achin, Diane St. John, Kenny Hynes, and Mary Wilson (collectively referred to as “Permissive
Plaintiffs”) are also deaf residents of the Villages who wish to intervene and be joined as coPlaintiffs in this matter. Although Plaintiffs seek leave to add the Permissive Plaintiffs well after
the deadline to add parties (see Doc. 35), Defendants have no objection to extending the deadline
so that the Permissive Plaintiffs can be joined in this matter. (Doc. 83 at ¶22). The Court agrees
that joinder of the Permissive Plaintiffs is proper for reasons of judicial economy, the avoidance
of multiplicity of suits against Defendants, and the avoidance of inconsistent verdicts.
Accordingly, Plaintiffs’ request to join the Permissive Plaintiffs is due to be GRANTED.
Plaintiffs also seek leave to file a Third Amended Complaint to correct scrivener’s errors
found in the Second Amended Complaint; clarify allegations in the Second Amended Complaint;
add the allegations of the Permissive Plaintiffs against all Defendants; and add counts for
violations of the Rehabilitation Act against all Defendants. The deadline for amending pleadings
has long since passed. (Doc. 35).
The College contends that Plaintiffs should not be permitted to file a Third Amended
Complaint adding new substantive claims under the Rehabilitation Act. Where, as here, the
requested amendment occurs after the deadline has expired in the Court=s Case Management and
Scheduling Order, the party requesting the amendment must first make a showing of good cause

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pursuant to Fed. R. Civ. P. 16(b), before the Court will consider whether the amendment is
proper under Fed. R. Civ. P. 15(a). Sosa v. Airprint Sys., Inc. 133 F.3d 1417, 1419 (11th Cir.
1998). To establish good cause to modify a scheduling order to amend a pleading, the moving
party must demonstrate diligence. Id. at 1418. Here, Plaintiffs have shown the requisite good
cause. Although the parties offer conflicting arguments as to whether Plaintiffs should have
investigated and asserted their Rehabilitation Act claims sooner, the Court is satisfied that
Plaintiffs acted with sufficient diligence in bringing the claims.
The amendment is also proper under Rule 15(a). Pursuant to Rule 15(a), Aleave shall be
freely given when justice so requires.@ In making the determination, Aa court should consider
whether there has been undue delay in filing, bad faith or dilatory motives, prejudice to the
opposing parties, and the futility of the amendment.@ Local 472 of United Ass=n of Journeymen
& Apprentices of Plumbing & Pipefitting v. Ga. Power Co., 684 F.2d 721, 724 (11th Cir.
1982)(citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The College argues that Plaintiffs
unduly delayed in filing the motion and that allowing a substantive amendment would cause
prejudice in light of the upcoming discovery deadline. However, as discussed above, the Court
is satisfied that Plaintiffs diligently sought leave to add the Rehabilitation Act claims. Moreover,
any prejudice suffered by allowing a substantive pleading at this late stage is remedied by
extending the discovery deadline. Finally, the College argues that Plaintiffs’ attempt to add a
claim under the Rehabilitation Act is futile because the Rehabilitation Act does not apply to the
College. The determination as to whether the Rehabilitation Act applies to the College – an
issue that the parties hotly dispute – is more appropriate for a motion to dismiss, not a motion for
leave to amend. Accordingly, the Court rejects the College’s futility argument at this time,

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without prejudice to the College’s right to reassert the argument in response to the Third
Amended Complaint.
Accordingly, Plaintiffs’ Motion for Leave of Court to Add Parties and to File Third
Amended Complaint (Doc. 83) is GRANTED. Within five (5) days of this Order, Plaintiffs
shall file the Third Amended Complaint as a separate docket entry and serve it. Defendants shall
respond to the Third Amended Complaint within the time frame provided by the Federal Rules
of Civil Procedure.
Based upon this ruling, the parties’ Joint Motion to Extend Certain Pre-Trial Deadlines
(Doc. 91) is also due to be GRANTED to the extent stated below. Although the Court agrees
that extensions of case deadlines are appropriate, the requested extensions are excessive.
Accordingly, the following deadlines hereby are ESTABLISHED (notably, the parties may
obtain a date certain for trial in the Ocala Courthouse by consenting to the jurisdiction of
the undersigned):
Plaintiffs’ Deadline to Disclose Expert Reports

January 7, 2014

Defendants’ Deadline to Disclose Expert Reports

February 7, 2014

Discovery Deadline

April 4, 2014

Dispositive and Daubert Motion Deadline

May 2, 2014

All Other Motions including Motions in Limine

September 8, 2014

Joint Final Pretrial Statement

September 15, 2014

Final Pre-Trial Conference

September 22, 2014
10:00 a.m.

Trial Term Beginning

October 6, 2014
9:30 a.m.

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THE CO
OURT WIL GRAN NO FUR
LL
NT
RTHER EX
XTENSION OR RE
NS
EQUESTS FOR
AMEND
DMENT AB
BSENT EXT
TRAORDIN
NARY CIRC
CUMSTAN
NCES.
DONE and ORDERED in Ocala, Flo
D
O
orida on Oct
tober 17, 2013.

Copies fu
urnished to:
Counsel of Record
Unrepres
sented Partie
es

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