The Estate of C.A., a minor child deceased et al v. Grier et al

Filing 111

MEMORANDUM AND OPINION entered DENYING 109 MOTION for Leave to File Supplement to Plaintiffs' Third Amended Complaint.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
THE ESTATE OF C.A., A MINOR CHILD,
DECEASED, et al.,

§
§
§
Plaintiffs,
§
§
v.
§
§
TERRY B. GRIER, SUPERINTENDENT OF §
THE HOUSTON INDEPENDENT SCHOOL §
DISTRICT, IN HIS OFFICIAL CAPACITY, §
et al.,
§
§
Defendants.
§

CIVIL ACTION NO. H-10-0531

MEMORANDUM AND OPINION
The plaintiffs in this lawsuit, the estate and parents of C.A., a high-school senior who
drowned in his school’s swimming pool, have moved to supplement their third amended complaint.
(Docket Entry No. 109). The proposed supplemental complaint cites a “Preparticipation Physical
Evaluation” form filled out and signed by C.A.’s parents in August 2005. In the form, they indicated
that C.A. was not to participate in certain athletics, including swimming and diving. (Docket Entry
No. 109, Ex. 2, ¶¶ 1–2; accord Docket Entry No. 110, Ex. 1). The plaintiffs assert two new theories
of constitutional liability based on the fact that the school allowed C.A. to swim: a violation of
C.A.’s parents’ due-process right to direct the upbringing and education of their son, and a violation
of C.A.’s equal-protection rights by treating athletes and nonathletes differently. The plaintiffs filed
the motion on January 15, 2012, the deadline for seeking leave to amend. (Docket Entry No. 107).
The Houston Independent School District opposes the motion. (Docket Entry No. 110).
Under Federal Rule of Civil Procedure 15(a), a district court “should freely give leave [to

amend] when justice so requires.” FED. R. CIV. P. 15(a)(2). “[T]he language of this rule evinces a
bias in favor of granting leave to amend.” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994
(5th Cir. 2005) (internal quotation marks omitted). Although leave to amend should not be
automatically granted, “[a] district court must possess a substantial reason to deny a request for leave
to amend[.]” Id. (internal quotation marks omitted). Under Rule 15(a), “[d]enial of leave to amend
may be warranted for undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies, undue prejudice to the opposing party, or futility of a proposed
amendment.” United States ex rel. Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir.
2010). A proposed amendment is futile if “the amended complaint would fail to state a claim upon
which relief can be granted.” Stripling v. Jordan Production Co., LLC, 234 F.3d 863, 873 (5th Cir.
2000). “[T]he same standard of legal sufficiency as applies under Rule 12(b)(6)” applies to
determining futility. Id. (internal quotation marks omitted).
Applying these factors to the present case reveals two substantial problems with granting
leave to amend. First, delay. The plaintiffs signed the form in August 2005. C.A.’s drowning
occurred in April 2008. The plaintiffs could have asserted these theories of recovery as early as the
original filing of this lawsuit, February 2010; the facts were known to them at that time. (See
Docket Entry No. 1). The plaintiffs disclosed the athletic-participation form to the defendants in
October 2010. (Docket Entry No. 110, ¶ 5). The plaintiffs relied on this form in responding to the
individual defendants’ motion for summary judgment based on qualified immunity, which they filed
in March 2011. (Docket Entry No. 88). It took the plaintiffs almost a year and a half after they
disclosed the form to the defendants, and almost a year after they invoked the form in opposing
summary judgment, to seek leave to amend to assert new claims based on the form. To seek leave

2

to amend now to add these new theories of recovery, when such theories could have been asserted
as early as the outset of the litigation and certainly before the court ruled on the defendants’
summary-judgment motion, constitutes undue delay.
Because the plaintiffs’ proposed theories of constitutional violations—the school district
violated C.A.’s parents’ due-process right to direct the upbringing of C.A., and C.A.’s equalprotection rights by treating student athletes differently from nonathletes—are new, additional
discovery beyond what the parties had planned may be needed. Although discovery will not
conclude until this summer, the parties’ expert-witness designations and reports are due in March
and May. The parties informed the court in December 2011 that they needed the time allotted in the
scheduling order for the discovery that was then anticipated. To add to that discovery would likely
require a further extension of the scheduling order and cause additional delay, in a case that has
already been on file for two years. Extending the scheduling order requires “good cause[.]” FED.
R. CIV. P. 16(b)(4). Good cause, in turn, “requires a party to show that the deadlines cannot
reasonably be met despite the diligence of the party needing the extension.” Marathon Fin. Ins.,
Inc., RRG v. Ford Motor Co., 591 F.3d 458, 470 (5th Cir. 2009) (internal quotation marks omitted).
Under the circumstances previously described, the plaintiffs could not reasonably assert that they
were diligent in asserting these new theories.
Second, futility. Due process protects parents’ rights “to direct the upbringing and education
of their child. Parents have a fundamental interest in raising and educating their children.”
Cornerstone Christian Schs. v. Univ. Interscholastic League (UIL), 563 F.3d 127, 136 (5th Cir.
2009) (citing, for example, Troxel v. Granville, 530 U.S. 57, 65 (2000)). This right, however, only
protects parents’ “prerogative to make choices regarding the type of education—e.g., public, private,

3

or home-schooling—that their child receives but not particular components of that education, such
as participation in interscholastic athletics or enrollment in particular courses.” Id. At most, the
plaintiffs seek to challenge a component of C.A.’s education: his participation in the physics
experiment and “free swim” that took place following that experiment. C.A.’s participation, despite
the school’s knowledge that his parents had prohibited him from swimming, does not give rise to
a violation of C.A.’s parents’ right to direct his education. The plaintiffs’ equal-protection claim
fares no better. As the plaintiffs appear to concede, (see Docket Entry No. 109, Ex. 2, ¶ 15), this
claim would be subject to rational-basis review, because nonathletes are not a protected class under
the Fourteenth Amendment. See Watkins v. New Albany Plain Local Schs., 711 F. Supp. 2d 817,
832 (S.D. Ohio 2010). “‘[A] classification must be upheld against equal protection challenge if
there is any reasonably conceivable state of facts that could provide a rational basis for the
classification,’ and the burden is on the challenger to ‘negative every conceivable basis which might
support [the classification].’” El Paso Apartment Ass’n v. City of El Paso, 415 F. App’x 574, 578
(5th Cir. 2011) (per curiam) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). To the extent that
the school district distinguishes between athletes and nonathletes, the plaintiffs cannot negate every
conceivable basis for that distinction. The plaintiffs’ equal-protection claim, like their due-process
claim, would fail as a matter of law.
The plaintiffs’ motion to supplement their third amended complaint, (Docket Entry No. 109),
is denied.
SIGNED on February 8, 2012, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge

4