Jones v. Eder
Filing
88
MEMORANDUM OPINION AND ORDER denying 87 Opposed MOTION for Leave to File Third Amended Complaint (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STEPHANIE JONES,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
JEREMY EDER, et al.,
Defendants.
March 21, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-2919
MEMORANDUM OPINION AND ORDER
Having
reviewed
Recommendation
the
Magistrate
(Docket Entry No.
82),
Judge's
Defendant
Memorandum
[Jeremy]
and
Eder's
Objections to Magistrate Judge's Report Regarding Defendant Eder's
Motion for Summary Judgment
Objections
to
the
(Docket Entry No.
Honorable
Magistrate's
83),
Plaintiff's
Memorandum
and
Recommendation (Docket Entry No. 84), Defendant Eder's Opposition
to
Plaintiff's
Recommendations
Objections
Regarding
to
Magistrate
Defendant
Eder's
Judge's
Motion
Report
for
and
Summary
Judgment (Docket Entry No. 85), and Plaintiff's Reply in Support of
Her Objections (Dkt. 84) to the Honorable Magistrate's Memorandum
and Recommendation
(Docket Entry No.
86),
the court is of
the
opinion that said Memorandum and Recommendation should be adopted
by this court.
It is, therefore, ORDERED that the Memorandum and
Recommendation is ADOPTED by the court.
In her original complaint plaintiff alleged constitutional
claims pursuant to the Fourth and Fourteenth Amendments, alleging
that the officers unlawfully arrested her and wrongfully seized
currency inside her home. 1
After defendant Jeremy Eder filed an
early motion to dismiss, plaintiff filed an amended complaint in
which she added constitutional claims that the officers unlawfully
seized a
failed
hydrocodone pill,
to
protect
her
violated her right
and
that
defendant
to privacy,
Fort
Bend
and
County
maintained a policy of inadequately training, supervising, and/or
disciplining its officers. 2
After considering defendants' motions to dismiss,
the court
dismissed the right-to-privacy and failure-to-protect claims and
dismissed all claims against defendant Fort Bend County for failure
claim for relief. 3
to state a
court's
consideration of
Recommendation,
complaint
for a
the
On August 24,
objections
to
2016,
the
before the
Memorandum and
plaintiff filed a motion for leave to amend her
second time
to add allegations
concerning the
interpretation and enforcement of Texas Health and Safety Code
§
481.117(a)
and to add more specific facts regarding defendant
Fort Bend County's policies. 4
1
At
the
time
the
court had not
See Plaintiff's Original Complaint, Docket Entry No. 1.
2
See Defendant Eder's Motion to Dismiss Plaintiff's Claims Due
to Plaintiff's Failure to State a Claim for Relief, Docket Entry
No. 7; Plaintiff's First Amended Complaint, Docket Entry No. 8.
3
See Memorandum and Recommendation, Docket Entry No. 19; Order
Adopting Magistrate Judge's Memorandum and Recommendation, Docket
Entry No. 26, pp. 15-19.
4
See Plaintiff's Opposed Motion for Leave to File a Second
Amended Complaint, Docket Entry No. 25.
-2-
entered a docket control order.
The court granted leave, and on
October 4, 2016, the court entered a docket control order that set
October 28, 2016, as the deadline for amending pleadings and adding
new parties. 5
On May 22,
complaint
to
2017,
plaintiff again sought leave to amend her
reassert
Fort Bend County. 6
policy
claims
against
defendant
The court denied the motion because plaintiff
failed to establish good cause for amending seven months after the
expiration of the deadline for amendment. 7
After the issuance of
a memorandum recommending dismissal of all of plaintiff's remaining
claims,
plaintiff
now
seeks
to
amend
her
pleading
to
add
an
as-applied constitutional challenge to Texas Health and Safety Code
§
481.117(a)
8
When a scheduling order deadline has expired,
P.
16(b)
governs amendment of the pleadings.
L.L.C. v. SouthTrust Bank of Alabama, NA,
Cir. 2003).
Fed. R.
Civ.
S&W Enterprises,
315 F.3d 533, 536
(5th
Rule 16(b) (4) allows modification of the scheduling
order "only for good cause and with the judge's consent."
Good
5
See Order, Docket Entry No. 29; Docket Control Order, Docket
Entry No. 35.
6
See Plaintiff's Opposed Motion for Leave to File an Amended
Complaint, Docket Entry No. 42.
7
See Amended Memorandum,
Entry No. 62, pp. 17-20.
Recommendation,
8
and Order,
Docket
See Plaintiff's Memorandum in Support of Opposed Motion for
Leave to File Amended Pleading, Docket Entry No. 87.
-3-
cause is satisfied upon a showing of the movant's inability to meet
the court's deadlines "despite the diligence of the party needing
the
extension."
Id.
at
535
(quoting
6A Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
§
1522.1 (2d ed. 1990)) .
Plaintiff has repeatedly sought leave to amend her complaint.
Now,
nearly two and one-half years after the expiration of the
deadline to amend, plaintiff asserts that her proposed amendment is
designed to resolve a presumed pleading deficiency, that is, to add
factual
allegations
and
another
cause
of
action. 9
Plaintiff
asserts that good cause warrants the amendment because neither the
defendants
nor
the
court
"ever
alleged
Plaintiff's
suffered from a defect in form prior to February 11. " 10
pleading
Because the
court concludes that plaintiff has failed to show good cause for
allowing yet another amendment, Plaintiff's Memorandum in Support
of Opposed Motion for Leave to File Amended Pleading (Docket Entry
No. 87) is DENIED.
SIGNED at Houston, Texas, on this the 21st day of March, 2019.
UNITED STATES DISTRICT JUDGE
9
See Plaintiff's Memorandum in Support of Opposed Motion for
Leave to File Amended Pleading, Docket Entry No. 87, p. 1 ~ 4.
-4-
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