United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on consideration of the Magistrate
Judge's Report and Recommendation (Doc. #56), filed
August 5, 2019, recommending that plaintiff's Motion for
Leave of Court to Supplement and Amend Third Amended
Complaint (Doc. #54) be denied. Plaintiff filed Objections to
the Report and Recommendations (Doc. #59) on August 19, 2019,
and defendant Lee Memorial Health System filed a Response to
Plaintiff's Objections (Doc. #64) on September 3, 2019.
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject or
modify the magistrate judge's report and recommendation.
28 U.S.C. § 636(b)(1); United States v. Powell,
628 F.3d 1254, 1256 (11th Cir. 2010). A district judge
“shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). See also United States v.
Farias-Gonzalez, 556 F.3d 1181, 1184 n.1 (11th Cir.
2009). This requires that the district judge “give
fresh consideration to those issues to which specific
objection has been made by a party.” Jeffrey S. v.
State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.
1990)(quoting H.R. 1609, 94th Cong., § 2 (1976)). The
district judge reviews legal conclusions de novo,
even in the absence of an objection. See Cooper-Houston
v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).
case was removed to federal court on May 17, 2018, on the
Second Amended Complaint (Doc. #2). On August 3, 2018, the
Court granted a Partial Motion to Dismiss (Doc. #6) for
failure to state a claim, and dismissed Counts II, III, IV,
V, and VI without prejudice to amending. (Doc. #24.) On
August 16, 2018, plaintiff filed a Third Amended Complaint
(Doc. #25). Defendant Lee Memorial Health System once again
moved to dismiss, and on October 18, 2018, the motion was
granted in part and denied in part. By Opinion and Order
(Doc. #31), the Court granted the motion as to Counts II and
V, dismissing these counts without prejudice, and otherwise
denied the motion. Plaintiff took no action as to the
dismissed counts, and on November 7, 2018, defendant filed an
Answer and Affirmative Defenses (Doc. #32). An Amended Case
Management and Scheduling Order (Doc. #35) was issued without
extending a deadline to amend the pleadings, and trial is set
for the March 2020 trial term. On July 18, 2019, plaintiff filed
the Motion for Leave of Court to Supplement and Amend Third
Amended Complaint (Doc. #54) to include “uncovered
facts the sexual assault against the Plaintiff was
foreseeable in the five (5) years prior to March 2015”,
that plaintiff's sexual assault was reasonably
foreseeable, and that defendant failed to adequately train,
educate and/or supervise its employees for the prevention of
future sexual assaults. (Doc. #54, pp. 3, 8.) Plaintiff
argued that “no meaningful discovery in the case had
occurred” and therefore the deadline to amend could not
have been met. (Id., p. 4.)
current motion seeking to supplement and/or amend to add
facts discovered during discovery was filed approximately 9
months after the expiration of the deadline to amend
pleadings. (Doc. #56, p. 3.) The Magistrate Judge reviewed
the motion for good cause and excusable neglect in concluding
that “allowing Plaintiff to file and proceed on the
expanded allegations in the Fourth Amended Complaint would
throw open the doors of expert discovery when the deadlines
governing expert discovery - which were set long ago and
modified multiple times already - have now lapsed.
(Id., pp. 7-8.) The Magistrate Judge found that the
expanded allegations would be “highly
prejudicial” to defendant, and further found that the
reasons for delay were “unpersuasive and
self-defeating.” (Id., pp. 8, 11.) The
Magistrate Judge concluded that plaintiff had not acted in
good faith, and had failed to demonstrate excusable neglect.
objects that the supplemental facts would not expand the
allegations, and both parties have retained experts on the
issues so defendant would suffer no prejudice.
Plaintiff objects that the request to amend was in good faith
and simply to provide more detailed factual allegations to
the broader allegations. After a careful and complete review
of the findings and recommendations, as well as the record in
this case, the Court accepts the Report and Recommendation of
the magistrate judge and overrules the objections. The Court
simply cannot find good cause or excusable neglect for
failing to timely seek to extend the deadline to amend the
pleadings if discovery was indeed still ongoing, and in light
of the current posture of this case.
it is now
1. The Report and Recommendation (Doc. #56) is hereby
ACCEPTED and ADOPTED and the findings
2. Plaintiff's Objections to the Report and
Recommendations (Doc. #59) are overruled.
3. Plaintiff's Motion for Leave of Court to Supplement
and Amend Third Amended Complaint (Doc. #54) is