The Inclusive Communities Project Inc v. The United States Department of Housing and Urban Development

Filing 41

Memorandum Order granting 40 MOTION for Leave to File First Amended Complaint filed by The Inclusive Communities Project Inc. Counsel granted leave to file an amended pleading under LR 15.1 is reminded to electronically file the amended pleading. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 10/26/2009) (mfw) Modified on 10/26/2009 (twd).

IN THE UNITED STATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS D A L L A S DIVISION T H E INCLUSIVECOMMI.INITIES PROJECT.INC.
Plaintiff,

VS. U . S .DEPARTMENTOF HOUSING AND URBAN DEVELOPMENT
Defendant.

$ $ $ $ $ $ $ $ $ $ $

NO.3-07-CV-0e4s-O

MEMORANDUM

ORDER

Plaintiff has filed a motion for leave to amend its complaint in this casebrought under the the F a i r Housing Act of 1968 ("FHA"), 42 U.S.C. $ 3601, et seq. Defendantopposes motion b e c a u s ethe proposedamendmentexpandsthe scopeof this litigation by adding two new legal ofthe FHA, andone for allegedviolationsofthe c l a i m s - - o n efor allegedviolationsof section8Oa(a) positions e q u a lprotectionclauseofthe Fifth Amendment. The partieshavebriefedtheir respective in a Joint StatusReport filed on October 23,20Q9, and the motion is ripe for determination. F e d . R. Civ. P. l5(a) allows a party to amendits pleadingswith leave of court, and "[t]he c o u r t should freely give leave when justice so requires." FBo. R. Ctv. P. 15(a)(2). Although a district court has broad discretion in deciding whether to grant leave to amend,the Fifth Circuit has l o n g recognizedthat Rule 15(a)evincesa liberal amendmentpolicy. SeeLowery v. TexasA&M U n i v e r s i t y System,ll7 F.3d 242, 245 (5th Cir. 1997). Thus, leave to amend should be granted almost as a matter of courseunlessthere is: ( I ) unduedelay,bad faith, or dilatory motive on the part is o f the movant; (2) undueprejudiceto the opposingparry;or (3) the proposedamendment futile.

SeeDallas & Mavis SpecializedCarrier Co., LLC v. Pacific Motor Transpart Co., Nos. 3-06-CV1 9 2 7 - R & 3-07-CV-0942-R,2007WL 1974773at * 1 (N.D. Tex. Jul. 3,2007), citing l(imm v. Jack E c k e r d Corp.,3 F.3d 137,139 (5th Cir. 1993). Here, defendant arguesthatplaintiff waited29 m o n t h safter filing this actionto amendits complaint. Ifplaintiff is allowed to add two new claims at this late date,defendantstatesit "would have no choice but to file anothermotion to dismiss, and b o t h the partiesand the Court would haveto address complexlegal issues well beyondthe scopeof t h e claimsraisedin plaintiff s original Complaint[,]" therebydisruptingthe existingscheduling order a n d delayingthe proceedings.(SeeJt. Stat.Rep. at 3-4, 5-6). T h e court recognizes that this casehasbeenpendingsinceMay 2007. During much of that time, the court had under consideration defendant'smotion to dismiss for lack of subject matter j u r i s d i c t i o n . OnJuly20,2009,themagistratejudgerecommendedthatthemotionbegrantedinpart adoptedbythedistrictjudge on September29,2009. a n d deniedinpart. Thatrecommendationwas SeeTheInclusive CommunitiesProject, Inc. v. U.S.Dept. of Housing and Urban Developmenf,No. 3 - 0 7 - C V - 0 9 4 5 - O , 2 0 0 9 WL 3122610(N.D. Tex. Sept. 29, 2009). While objectionsto the were pending,the court issueda schedulingorder establishinga December 18, recommendation 2 0 0 9 deadlinefor plaintiff to file a motion for summaryjudgment. SeeSch. Order, 8/18/09 at I . judgment to D e f e n d a n thasbeenorderedto file a combinedresponse plaintiffs motion for summary a n d cross-motionfor summaryjudgment by January 19,2010. Id. The schedulingorder also prohibits the parties from conducting any discovery outside the administrative record and set an O c t o b e r 15, 2009 deadlinefor the partiesto amendtheir pleadings. /d at 2. Plaintiff timely filed its motion for leave to amend on that date. complaintwhile defendant's A l t h o u g h plaintiff could have soughtleaveto file an amended m o t i o n to dismisswas pending,its failure to do so was not the result of unduedelay,bad faith, or

dilatory motive. Plaintiff was entitled to obtain a ruling on the threshold issue of subject matter jurisdiction before seeking leave to amend. Less than a month after the court finally decided that issue, plaintiff filed the instant motion. Defendant has failed to demonstrate how it will be prejudiced if the pleading amendmentis allowed. Nor doesdefendantargue,much lessprove, that the proposedamendmentis futile. Defendantis right about one thing--it would disrupt the existing s c h e d u l i n gorder if the court must decidea Rule 12 motion to dismissthe new allegationsin the the a m e n d e dcomplaint. For that reason,and because dispositivemotion deadlineis lessthan two defendantnot to file a Rule 12 motion.r Instead, m o n t h s away,the court strongly encourages defendantshould raise any argumentsattackingthe legal sufficiency of plaintiff s newly pled claims at the summaryjudgment stage. CONCLUSION Plaintiffs motion for leave to file an amend complaint [Doc. #40] is granted. The clerk is by d i r e c t e dto file the amendedcomplaint tendered plaintiff.

S O ORDERED. 26. D A T E D : October 2009.

nt\

S T A T E S IVIAGISTRATE JUDGE

the In the eventdefendant fails to heedthis admonishment, court may decideto summarilydenythe Rule l2 motion and allow defendantto reurge its grounds for dismissal in a Rule 56 motion for summaryjudgment.

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