Datto v. Florida International University Board of Trustees et al

Filing 70

ORDER Denying as moot 57 Motion to Dismiss; Granting 64 Motion to Amend/Correct ( Amended Complaint due by 11/16/2020.). Signed by Judge Beth Bloom on 11/5/2020. See attached document for full details. (jbs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:20-cv-20360-BLOOM/Louis
JEFFREY PETER DATTO, PH.D.,
Plaintiff,
v.
FLORIDA INTERNATIONAL UNIVERSITY
BOARD OF TRUSTEES, et al.,
Defendants.
________________________________/
ORDER
THIS CAUSE is before the Court upon Plaintiff’s Motion for Leave to File a Second
Amended Complaint, ECF No. [64] (“Motion”). Defendant, Florida International University
Board of Trustees (“FIU” or “Defendant”), filed a response in opposition, ECF No. [67]
(“Response”), to which Plaintiff filed a reply, ECF No. [69] (“Reply”). The Court has reviewed
the Motion, the Response, the Reply, the record in this case, the applicable law, and is otherwise
fully advised. For the reasons set forth below, the Motion is granted.
I.

BACKGROUND

On July 13, 2020, the Court granted in part and denied in part Defendant’s Motion to
Dismiss Plaintiff’s then-pending six-count complaint. ECF No. [46] (“Dismissal Order”).
Specifically, the Court dismissed without prejudice Counts II, III, IV, and VI, which purported to
set forth claims under the Rehabilitation Act of 1973 (“RA”) (Counts II, IV, and VI) and for failure
to accommodate a disability under the Americans with Disabilities Act (“ADA”) (Count III).
Pursuant to the Dismissal Order, Defendant answered the remaining counts of the Complaint. ECF
No. [51].

Case No. 1:20-cv-20360-BLOOM/Louis
On September 2, 2020, following leave of Court, Plaintiff filed the operative Amended
Complaint, ECF No. [56] (“Amended Complaint”). The Amended Complaint asserts ten counts
against Defendant grounded in federal and state law causes of action. Regarding the three federal
claims, Plaintiff asserts counts under the ADA for disparate treatment (Count I), failure to
accommodate a disability (Count II), and retaliation (Count III). Regarding the seven state law
claims, he sues Defendant for negligence (Count IV), fraud in the inducement (Count V), negligent
misrepresentation (Count VI), fraudulent concealment (Count VII), negligent omission (Count
VIII), breach of implied in fact contract (Count IX), and unjust enrichment (Count X).
On September 15, 2020, Defendant filed a motion to dismiss the Amended Complaint. ECF
No. [57] (“Motion to Dismiss”). In the Motion to Dismiss, Defendant makes six overarching
arguments. First, Counts III through VIII are shotgun pleadings in that they assert multiple claims
against multiple defendants without specifying which of the defendants are responsible for which
acts or omissions, or which of the defendants the claim is brought against. Id. at 2, 6-7. Second,
Count I fails to establish a causal link between Plaintiff’s disability and the denial of his
applications to FIU’s medical school. Id. at 2-3, 7-9. Third, Count II fails because the three
requested accommodations he seeks are not reasonable as a matter of law. Id. at 3, 9-12. Fourth,
Count III fails to allege a statutorily protected activity. Id. at 3-4, 12-13. Fifth, Plaintiff’s
negligence claims in Counts IV, VI, and VIII fail to comply with statutory pre-suit notice under
Fla. Stat. 768.28, and educational malpractice is not a cognizable claim under Florida law. Id. at
4, 13-15. Finally, Counts V through X fail because Defendant is entitled to sovereign immunity.
Id. at 4-5, 15-17. In this respect, it argues that claims premised on fraud are statutorily barred and
that Plaintiff cannot maintain an action based on an alleged implied-in-fact contract. Id.

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On October 19, 2020, Plaintiff filed the instant Motion seeking leave to file a Second
Amended Complaint (“SAC”), ECF No. [64].1 According to the Motion, on October 9, 2020, a
former FIU student contacted Plaintiff and provided him with “new evidence” that FIU’s
administration told medical students that it has “not wanted to accommodate students with
disabilities due to concerns over costs,” and that there has been “pushback” related to “wanting to
accommodate students with disabilities.” Id. at 1-2. Co-defendant Dean Jones was reportedly
involved with Defendant’s denial of accommodations to disabled students, and in Plaintiff’s view,
“this provides an additional causal connection as to why Dean Jones did not want Plaintiff coming
to FIU already knowing that he would be requesting disability accommodations[.]” Id. at 2.2
Additionally, Defendant’s counsel on October 16, 2020 provided Plaintiff with a Rule 26
supplement, which included Plaintiff’s “candidate status reports” for his 2015 and 2016
applications. Id. at 4, 9-11. He seeks leave to amend by re-adding claims under the RA, adding
allegations that he provided statutory notice under Fla. Stat. § 768.28(6)(a), making it clearer that
his negligent misrepresentation claims and negligent omission claims are not based on bad faith,
and that “if there is a need to have separate counts against Dean Jones and the John Does, he would
like to include that in the” SAC. Id. at 5. He asserts that pro se plaintiffs are ordinarily permitted
multiple attempts to amend their complaints and that good cause exists because leave “is based on
new evidence” and a “late Rule 26 Supplementation[.]” Id. at 6-7.

1

The proposed SAC is located at ECF No. [64] at 13-75.

Plaintiff asserts that although he “believes this additional evidence is not needed for the complaint
to be plausible on its face,” “it definitely provides an additional causal connection for FIU’s action
of not wanting Plaintiff to be at FIU knowing in advance they would need to accommodate him,
which they were unwilling to provide reasonable accommodations at that time even for their own
students.” Id. at 2-3.
2

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Defendant responds that amendment is unwarranted because the Motion is untimely (as it
was filed after the amendment deadline), and it proposes amendments that “fail to address the
deficiencies of the Amended Complaint and ultimately have no bearing on the plausibility of
Plaintiff’s claims.” ECF No. [67] at 1. Defendant adds that should leave be granted, it will be
prejudiced because it will incur undue costs and delay associated with preparing a third motion to
dismiss, which motion “will essentially be a reiteration of its prior Motion to Dismiss[.]” Id. at 2.
According to Defendant, the Court previously dismissed the RA claims due to pleading
deficiencies, but Plaintiff did not re-assert those claims in the Amended Complaint despite an
opportunity to do so. Further, Defendant maintains that the instant SAC allegations still fail to
plead the requisite but-for causation to support a viable RA claim. Id. at 4, 6. It contends, moreover,
that the allegations regarding compliance with Fla. Stat. § 768.28 do not adequately address the
Amended Complaint’s deficiencies. Id. at 4, 6-7.
In reply, Plaintiff argues that Defendant’s purported prejudice is minimal if Defendant will
raise “similar if not identical arguments” in a later motion to dismiss, ECF No. [69] at 1 (quoting
ECF No. [67] at 6), and Plaintiff will cure any deficiencies pointed out by any future dismissal
order. Id. Regarding the RA claims, he asserts that these claims are based on the “new evidence”
provided by FIU and by a former student and they do not substantially alter the claims or the scope
of discovery. Id. at 2. Regarding allegations of pre-suit notice, Plaintiff maintains that the SAC’s
allegations are sufficient. Id. at 3-4.
The Motion, accordingly, is ripe for consideration.
II.

LEGAL STANDARD

Generally, Rule 15 of the Federal Rules of Civil Procedure governs amendment to
pleadings. Apart from initial amendments permissible as a matter of course, “a party may amend

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its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P.
15(a)(2). “The court should freely give leave when justice so requires.” Id. A plaintiff should be
afforded the opportunity to test their claim on the merits as long as the underlying facts or
circumstances may properly warrant relief. Foman v. Davis, 371 U.S. 178, 182 (1962). However,
“[a] district court need not . . . allow an amendment (1) where there has been undue delay, bad
faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed;
(2) where allowing amendment would cause undue prejudice to the opposing party; or (3) where
amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Ultimately,
“the grant or denial of an opportunity to amend is within the discretion of the District
Court[.]” Foman, 371 U.S. at 182. See also Espey v. Wainwright, 734 F.2d 748, 750 (11th Cir.
1984) (“This policy of Rule 15(a) in liberally permitting amendments to facilitate determination
of claims on the merits circumscribes the exercise of the trial court’s discretion; thus, ‘[u]nless
there is a substantial reason to deny leave to amend, the discretion of the district court is not broad
enough to permit denial.’ ”) (citation omitted).
Under the Federal Rules of Civil Procedure, district courts are required to enter a
scheduling order that limits the time to amend the pleadings. See Fed. R. Civ. P. 16(b)(3).
Scheduling orders may be modified only “for good cause and with the judge’s consent.” See id. at
R. 16(b)(4). “This good cause standard precludes modification unless the schedule cannot be met
despite the diligence of the party seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417,
1418 (11th Cir. 1998) (quoting Fed. R. Civ. P. 16 advisory committee’s note) (quotations omitted).
Accordingly, when a motion to amend is filed after a scheduling order deadline, Rule 16 is the
proper guide for determining whether a party’s delay may be excused. Id. at 1418 n.2; see
also Smith v. Sch. Bd. of Orange Cty., 487 F.3d 1361, 1366-67 (11th Cir. 2007) (holding that

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“where a party files an untimely motion to amend, [we] must first determine whether the party
complied with Rule 16(b)’s good cause requirement,” before considering whether “justice so
requires” allowing amendment). If the party seeking relief “was not diligent, the [good cause]
inquiry should end.” Sosa, 133 F.3d at 1418 (quoting Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 609 (9th Cir. 1992)).
When a motion for leave to amend a pleading is filed after the deadline set in a court’s
scheduling order, the court employs a two-step analysis. Id. at 1419. First, the movant must
demonstrate good cause under Rule 16(b) of the Federal Rules of Civil Procedure. Good cause
exists when the deadline could not “be met despite the diligence of the party seeking the
extension.” Id. at 1418 (quoting Fed. R. Civ. P. 16 advisory committee note). Courts consider three
factors in assessing diligence: (1) whether the movant failed to ascertain facts prior to filing the
pleading or failed to acquire information during the discovery period, (2) whether the information
supporting the proposed amendment was available to the movant, and (3) whether the movant
delayed in requesting leave to amend even after acquiring the information. See id. at 1419. If the
movant demonstrates good cause, the court proceeds to determine whether an amendment to the
pleadings is proper under Rule 15(a) of the Federal Rules of Civil Procedure. Id.
Through this lens, the Court addresses the instant Motion.
III.

DISCUSSION

Determining whether Plaintiff is entitled to amend the Amended Complaint raises two
overarching issues. The first is whether “good cause” exists pursuant to Rule 16(b) for amending
the Amended Complaint months after the deadline set forth in the Scheduling Order, ECF No.
[23], to amend the pleadings had expired. The second is whether there is a “substantial reason” to
deny leave to amend under Rule 15(a), such as if amendment would be futile, unduly prejudicial

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to Defendant, or where there has been undue delay or dilatory motive. The Court will address each
of these issues in turn.
A.

Good cause for seeking leave after the Scheduling Order deadline

The Scheduling Order, ECF No. [23], set July 6, 2020 as the deadline for filing motions to
amend the pleadings. The Motion was filed on October 19, 2020. ECF No. [64]. Defendant asserts
that because the Motion was filed several months after the amendment deadline passed, Plaintiff
lacks good cause for seeking amendment at this time. ECF No. [67] at 1-2. In this respect,
Defendant maintains that Plaintiff has previously been granted leave to amend, which leave
resulted in Plaintiff filing the Amended Complaint on September 2, 2020.
Upon review and consideration, the Court finds that good cause exists pursuant to Rule
16(b)(4) to excuse Plaintiff’s belated filing of the Motion. First, the Court entered the Dismissal
Order on July 13, 2020, ECF No. [46]. Accordingly, any subsequent amendment to the initial
pleading would necessarily be after the amendment deadline. While Plaintiff previously sought
and obtained leave on August 28, 2020 to amend the Complaint, ECF Nos. [54]; [55], the instant
Motion was filed approximately a month and a half later, and it was brought within one week of
Defendant’s pending Motion to Dismiss becoming ripe. Second, Defendant does not argue that
Plaintiff has not been diligent, and the Court does not find that Plaintiff has been dilatory. As noted
in the Motion, Plaintiff sought leave to amend shortly after receiving FIU’s Rule 26 supplemental
evidence on October 16, 2020 and the “new evidence” from the former FIU student on October 9,
2020. Third, while Plaintiff did not re-assert RA claims in the Amended Complaint, he explains
that had he been provided with the “new evidence” in July 2020, “the “[A]mended [C]omplaint
that he filed would have been different.” ECF No. [69] at 2. Finally, Defendant fails to show how
granting leave to amend after the Scheduling Order deadline expired otherwise affects the scope

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of this case, the remaining pre-trial and trial deadlines, or impairs discovery on the parties’
disputes. Accordingly, good cause is satisfied. The Court will next proceed to determine whether
amendment is appropriate under Rule 15(a)(2), Fed. R. Civ. P.
B.

No substantial reason to deny leave

Defendant maintains that leave should be denied because it will be prejudiced by having
to incur costs associated with responding to another pleading, and the SAC does not correct
deficiencies in the Amended Complaint. ECF No. [67] at 2-4. Upon review, the Court does not
agree that pro se Plaintiff should be denied leave to amend.
As noted, district courts have broad discretion in permitting amendment, and leave should
be denied only where there is a “substantial reason.” Espey, 734 F.2d at 750. In this regard,
amendment may be denied “(1) where there has been undue delay, bad faith, dilatory motive, or
repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing
amendment would cause undue prejudice to the opposing party; or (3) where amendment would
be futile.” Bryant, 252 F.3d at 1163. Here, although Defendant argues that it will be prejudiced,
the Court does not agree that the prejudice will be undue. Defendant does not contend that the
proposed SAC expands the nature of the disputes in this case or impacts discovery. Nor does it
assert that it will incur significant costs associated with responding to the new pleading. In fact, it
represents that it intends to file another motion to dismiss that will be “essentially . . . a reiteration”
of its prior motions to dismiss and contain “similar if not identical arguments” to its pending
motion. ECF No. [67] at 2, 6. Under these circumstances, the Court does not agree that Defendant’s
prejudice should preclude Plaintiff from amending his Amended Complaint.
Second, Defendant does not argue that amendment as it pertains to the RA claims is futile.
Notably, the Court previously dismissed without prejudice Plaintiff’s RA claims, and Plaintiff

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asserts that he has corrected the earlier pleading deficiencies. Additionally, while Defendant takes
issue with Plaintiff’s allegations that he provided notice under Fla. Stat. § 768.28, “a general
averment will suffice.” Fletcher v. City of Miami, 567 F. Supp. 2d 1389, 1393 (S.D. Fla. 2008)
(citation omitted). In any event, leave to amend rather than dismissal with prejudice is proper
where a complaint fails to allege compliance with the notice requirement. Id. at 1393. Finally,
while Defendant asserts that Plaintiff “should not be afforded yet another untimely opportunity to
cure his prior pleading deficiencies,” ECF No. [67] at 6, Plaintiff has only been granted leave to
amend once, and Defendant cannot point to a “repeated failure” by Plaintiff to cure any
deficiencies. Against this backdrop, the Court notes that Plaintiff is proceeding pro se.
Because (1) this circuit embraces a policy of liberally granting amendments; (2) the Federal
Rules of Civil Procedure dictate that leave should be granted freely when justice so requires; (3)
and there being no “substantial reason” to deny the Motion, the Court finds that Plaintiff has carried
its burden under Rule 15(a)(2) and Rule 16(b)(4), Fed. R. Civ. P., to permit amendment.
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Motion, ECF No. [64], is GRANTED.
2. Plaintiff shall file the Second Amended Complaint by November 16, 2020.
3. The Motion to Dismiss, ECF No. [57], is DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, on November 5, 2020.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

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Case No. 1:20-cv-20360-BLOOM/Louis
Copies to:
Counsel of Record
Jeffrey Peter Datto, Ph.D.
3352 W. 98th Place
Hialeah, FL 33018
215-915-4416
Email: [e-mail]

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