Opinion
CASE NO. 2:09-cv-971-MEF-CSC.
March 12, 2010
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Plaintiffs' Motion to Amend Complaint filed on December 31, 2009. (Doc. #29). Defendants have opposed this motion. For the reasons set forth in this Memorandum Opinion and Order, the Court finds that the motion is due to be GRANTED in part and DENIED in part.
Plaintiffs are nine women who all participate in the Housing Assistance program pursuant to 42 U.S.C. § 1437f ("Section 8"), administered locally by the Housing Authority of the City of Montgomery ("MHA"). Each plaintiff received a letter from MHA stating that MHA would end Section 8 assistance at the end of the month. As grounds for termination, MHA asserted engagement in "drug-related criminal activity or violent criminal activity or other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises" in violation of Plaintiffs' Section 8 agreements. MHA also noted in each letter that Plaintiffs had the right to request a hearing to dispute this charge. Pursuant to 42 U.S.C. § 1983, Plaintiffs claim that Defendants deprived them of rights guaranteed by 42 U.S.C. § 1437 and the Fifth and Fourteenth Amendments.
Specifically, Plaintiffs cite to alleged violations of requirements given by 42 U.S.C. § 1437d and 24 C.F.R. Part 982.
On November 5, 2009, the parties submitted a Report of Parties' Planning Meeting suggesting a trial in March of 2010 and failing to propose a deadline for any amendments to the pleadings. (Doc. #24). On November 6, 2009, this Court entered a Uniform Scheduling Order pursuant to Federal Rule of Civil Procedure 16. (Doc. #25). This Uniform Scheduling Order set a deadline of December 9, 2009 for the amendment of the pleadings by any party. Plaintiffs did not object to this deadline, nor did they file any motion seeking to extend it prior to its passing.
Federal Rule of Civil Procedure 16(b) provides that a schedule, such as the one this Court set by entering the Uniform Scheduling Order in this case, "may be modified only for good cause" and by leave of court. Fed.R.Civ.P. 16(b) (emphasis added). This means that in making a motion for leave to amend a pleading after the deadline set by this Court's scheduling order, Plaintiffs must show good cause exists for their untimely attempt to amend their complaint. See Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1232 (11th Cir. 2008) (finding that Rule 16's good cause standard precludes modification of the scheduling order unless the schedule cannot be met despite the diligence of the party seeking the extension.); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (applying the Rule 16 good cause standard rather than the more liberal standard of Rule 15 to attempt to amend pleading after deadline set by Court's scheduling order is appropriate).
Plaintiffs seek to amend their complaint in two ways: (1) note the significance of both the defects in Defendants' policy on Section 8 terminations and the lack of training provided to the hearing officer, and (2) add a claim for attorneys' fees. ( See Doc. #29-2).
Plaintiffs added paragraphs 20, parts of 22, 23, parts of 27, 32, 33, and 34. They also added subpart (d) and (e) and parts of subpart (c) to the prayer.
Plaintiffs added subpart (h) to the prayer.
With regards to the first purpose for amending, Plaintiffs added allegations that their benefits were terminated without investigation and with the use of form letters by a hearing officer that MHA failed to train. Plaintiffs also added allegations that Defendants' procedures were generally inadequate and failed to inform Plaintiffs of their rights, causing substantial harm to Plaintiffs. In their prayer, Plaintiffs add requests that the Court make findings on these assertions and enjoin Defendants from terminating benefits in the future without first revising their policy for termination. Plaintiffs argue that these additions merely clarify their claims and do not prejudice Defendants.
In their initial motion, Plaintiffs failed to give any reason for missing the deadline to amend with regards to these changes. Plaintiffs asserted these arguments for the first time in their reply to this Court's show cause order.
As noted by Defendants, most if not all of these additions requested by Plaintiff are stated in their memorandum in support of their motion for a preliminary injunction and temporary restraining order. (Doc. #4). Therefore, it appears that Plaintiffs had all the information they needed to amend their complaint on October 19, 2009 but failed to seek leave to amend their complaint until over two months thereafter. The Court is not satisfied that Plaintiffs have made a showing of good cause for allowing these amendments. Furthermore, since Plaintiffs say that these additions merely clarify rather than alter their claims, there is no need for an amended complaint to add these changes. Any clarification may be included in the pretrial order.
Plaintiffs also argue that they should be allowed to amend their complaint to add a claim for attorneys' fees because the statutory bar against Legal Services lawyers collecting and retaining attorneys' fees was not removed until December 16, 2009, after the deadline set in the Uniform Scheduling Order for filing amendments to pleadings. While Plaintiffs and Defendants agree that the 2010 appropriations bill removes the restriction on Legal Services attorneys seeking attorneys' fees, Defendants argue that prohibition remains in the regulations. See 45 C.F.R. § 1642. However, the Legal Services Corporation ("LSC") Board of Directors issued a letter dated December 17, 2009 stating that LSC would not enforce the regulatory restriction on claiming, collecting, and retaining attorneys' fees until it determined whether it would rescind or amend that regulatory restriction pursuant to the new legislation lifting the statutory ban. Plaintiffs, despite their diligence, may not have known they could file a claim for attorneys' fees prior to the December 9, 2009 deadline for amendments given in the Uniform Scheduling Order. Once the letter from the LSC Board issued, Plaintiffs' filed their motion for leave to amend in less than two weeks.
For the foregoing reasons, its is hereby ORDERED that Plaintiffs' Motion to Amend Complaint (Doc. #29) is GRANTED in part and DENIED in part. It is granted in that Plaintiffs may file an amended complaint which adds only a claim for attorneys' fees; it is denied in all other respects. It is further ORDERED that Plaintiffs must file their amended complaint no later than 5:00 p.m. on Friday, March 19, 2010.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders: Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop, 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co., 108 S.Ct. 1717 1721-22 100LaChance v. Duffy's Draft House, Inc., 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc., Gillespie v. United States Steel Corp., 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing: Rinaldo v. Corbett, 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal: See also 3pro se 4. Effect of a notice of appeal: 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , 368 (11th Ci r. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. 486 U.S. 196, 201, , , L .Ed.2d 178 (1988); , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , 69S.Ct. 1221, 1225-26, (1949); 890 F.2d 371, 376 (11th Cir. 1989); , , , , (1964). The timely filing of a notice of appeal is mandatory and jurisdictional. , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).