Evans v. City of Bushnell, Florida et al

Filing 41

ORDER granting 40 Plaintiff's motion to amend her complaint and denying as moot 13 Defendants' motion to dismiss. Signed by Magistrate Judge Philip R. Lammens on 11/3/2015. (CAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
KAY EVANS,
Plaintiff,
v.

Case No: 5:15-cv-19-Oc-39PRL

CITY OF BUSHNELL, FLORIDA,
VINCE RUANO, JOYCE WELLS and
DONALD KNEE
Defendants.

ORDER
On October 20, 2015, Defendants’ motion to dismiss the Plaintiff’s amended complaint
was referred to me. (Doc. 39). The next week Plaintiff filed an unopposed motion to file a
second amended complaint, which was also referred to me. (Doc. 40). According to the Court’s
Case Management and Scheduling Order, amendments to pleadings were due on July 31, 2015.1
(Doc. 37).
Where, as here, the requested amendment occurs after the deadline has expired, the party
requesting the amendment must first make a showing of good cause 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).

1

Plaintiff filed her original complaint on January 12, 2015. (Doc. 1). After Plaintiff amended
her complaint (Doc. 4), the Defendants filed a joint motion to dismiss the amended complaint (Doc. 13).
In Plaintiff’s response to the motion to dismiss, she requested that, in the alternative to granting
Defendants’ motion, she be granted leave to further amend her complaint. (Doc. 22). The Court then
denied without prejudice her request for leave to amend. (Doc. 38). In that order, the Court noted that
Plaintiff could file an appropriate motion to amend and that the motion would have to meet all the
applicable rules. Plaintiff represents that none of the Defendants opposes the instant motion to amend.
Also, Plaintiff has attached the proposed second amended complaint to her motion.

Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998). To establish good cause, the
moving party must demonstrate diligence. Id. at 1418.

Here, the Plaintiff has shown the

requisite good cause as she filed her response to the motion to dismiss on April 14, 2015, which
the Court construed in part as a motion to amend, within the case management deadline of July 31,
2015 for amended pleadings. (See Doc. 37).
The amendment is also proper under Rule 15(a). Under Rule 15(a), “leave shall be freely
given when justice so requires.” In making the determination, “a 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). Here, according
to Plaintiff, the Defendants do not oppose this extension.
Upon due consideration, Plaintiff’s motion is GRANTED. Plaintiff shall have until on or
before November 10, 2015 to file, as a second amended complaint, the proposed amendment that
is attached to her motion. Defendants shall file their responses to Plaintiff’s second amended
complaint on or before thirty days after she files. Defendants’ motion to dismiss (Doc. 13) is thus
DENIED AS MOOT.
DONE and ORDERED in Ocala, Florida on November 3, 2015.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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