United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION
MCCOY UNITED STATES MAGISTRATE JUDGE
before the Court are Plaintiff's Motion for Leave of
Court to Supplement and Amend Third Amended Complaint, filed
on July 18, 2019, (Doc. 54), and Defendant Lee Health's
Response to Plaintiff's Motion to Amend the Complaint,
filed on August 1, 2019, (Doc. 55). These matters are fully
briefed and ripe of the Court's consideration.
short, Plaintiff seeks leave to file a Fourth Amended
Plaintiff now wishes to amend the Complaint solely for the
purpose of detailing additional facts which [sic] have been
uncovered during the discovery phase of this case.
Specifically, the Plaintiff wishes to include in Count I
(Claim against Lee Memorial Health System Violation of 42
U.S.C.A. § 1983) the fact that within the five (5) years
prior to the Plaintiff's sexual assault, other patients
were sexually assaulted by the Defendant's employees and
no action was taken to prevent future sexual assaults, the
sexual assaults were not fully investigated, and [sic] the
Defendant failed to adequately train and/or supervise it
employees to prevent future sexual assaults, and the prior
failures to properly train, supervise, and respond to sexual
assaults perpetrated by the Defendant's employees were a
deliberate indifference to the rights and safety of female
The Plaintiff would also like to amend Count IV (Negligent
Security) to include the uncovered facts the sexual assault
against the Plaintiff was foreseeable because in the five (5)
years prior to March 2015, there were numerous sexual assault
[sic] which [sic] were perpetrated by the Defendant's
employees and that that the Defendant failed to take
appropriate actions after prior sexual assault [sic] to
prevent future assaults on patients.
(Doc. 54 at 2-3). Plaintiff attaches a copy of the proposed
Fourth Amended Complaint as Exhibit A to the motion sub
judice. (See Doc. 54-1).
Health opposes any amendment, arguing that the proposed
pleading amendment is untimely, that Plaintiff fails to
address the proper legal standards under Fed.R.Civ.P. 15 and
16, and that the proposed amendment would “vastly
broaden the scope of [Plaintiff's] § 1983 and
negligent supervision claims against Defendant.” (Doc.
55 at 1-2).
reasons below, the Undersigned respectfully recommends that
Plaintiff's Motion for Leave of Court to Supplement and
Amend Third Amended Complaint (Doc. 54) be
review of the relevant procedural history of this case is
instructive. Plaintiff initiated this action in Florida state
court on or about April 12, 2018. (Doc. 1 at 1; Doc. 1-1 at
ECF pp. 19-32). Plaintiff amended the state-court complaint
on April 17, 2018 and again on April 24, 2018. (Doc. 1 at 1;
Doc. 1-1; Doc. 2). Defendant removed this action to this
Court on or about May 17, 2018. (Doc. 1). At the time of
removal, Plaintiff's Second Amended Complaint was the
operative pleading. (See Doc. 2).
August 3, 2018, the presiding United States District Judge
entered an Opinion and Order granting Defendant Lee Memorial
Health System's partial motion to dismiss as to certain
counts of the Second Amended Complaint. (See Doc. 24
at 11). The District Judge's Opinion and Order required
Plaintiff to file an amended complaint. (Id. at 12).
On August 25, 2018, Plaintiff filed the Third Amended
Complaint, which has remained the operative pleading in this
case since its filing nearly a year ago. (Doc. 25).
Lee Memorial Health System filed its Answer and Affirmative
Defenses on November 7, 2018. (Doc. 32). In the meantime, the
Court entered a Case Management and Scheduling Order on
August 17, 2018. (Doc. 26). The Case Management and
Scheduling Order adopted the parties' stipulated deadline
of October 15, 2018 for filing motions to add parties or to
amend the pleadings. (See Doc. 23 at 1; Doc. 26 at
1). No party ever sought to modify or to extend that deadline
after it was set by the Court.
deadlines were, however, modified or extended over the course
of this case after the October 15 deadline lapsed. In
response to a joint motion by the parties, the Court entered
an Amended Case Management and Scheduling Order on February
25, 2019 that reset all deadlines relating to discovery, the
dispositive motion deadline, the date of the final pretrial
conference, and the date of the trial term. (Doc. 35). The
Court again subsequently modified certain discovery-related
deadlines on unopposed motions filed by either Plaintiff or
Defendant. (See Docs. 42-43, 48-49). The net effect
of these various scheduling orders is that: (1) the parties
stipulated to an October 15, 2018 deadline to file motions to
add parties or to amend pleadings (Doc. 23 at 1) that the
Court adopted (Doc. 26 at 1) and never extended; (2) expert
discovery has now concluded (see Doc. 49); and (3)
the discovery deadline is currently set to expire on
September 3, 2019 and the parties' dispositive motions
and any Daubert motions are due by October 3, 2019
(Doc. 35 at 1).
filed the instant motion on July 18, 2019 (Doc. 54), which is
approximately 9 months after the October 15, 2018
deadline specified in the original Case Management and
Scheduling Order for filing motions to amend pleadings
expired (see Doc. 26 at 1).