IN THE CIRCUIT COURT OF MARION COUNTY
STATE OF FLORIDA
MICHAEL C. O’NEILL,., )
) CIVIL ACTION
) CASE NO.: 05-1386-CA-B
MOTION TO AMEND COMPLAINT
Plaintiff filed this Motion to Amend his Complaint pursuant to Fla. R. Civ. Pro. 1.190 to include a claim for attorneys’ fees and states:
1. On March 7, 2007, the Plaintiff filed with this Court an amendment to his Complaint. The amendment relates only to the remedy sought by the Plaintiff in this action (i.e. the amendment requests an award of attorneys’ fees).
2. The undersigned counsel seeks to amend the Complaint to include the requested relief. As previously mentioned, the requested amendment has been filed with this Court on March 7, 2007.
3. “Leave of court [to amend] shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190(a). Courts have held that there are only three circumstances where the Court may deny a party the right to the amendment. These circumstances were defined by the Second District in Colandrea v. King, 661 So.2d 1250, 1251 (Fla. 2nd DCA 1995) which holds:
It is the public policy of Florida to freely allow amendments to pleadings so cases may be resolved on their merits. It is an abuse of discretion to disallow amendment of a pleading unless it clearly appears the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.
See also Carter v. Ferrell, 666 So.2d 556, 557 (Fla. 2nd DCA 1995) (“While we recognize that a trial court’s ruling on an amendment rests within its sound discretion, refusal to allow an amendment constitutes an abuse of discretion unless it clearly appears that the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”). As demonstrated below, allowing the Plaintiff to amend his Complaint would not result in prejudice, would not result in an abuse of the right to amend, and would not be futile.
4. As demonstrated by the Second District in Carter v. Ferrell, 666 So.2d 556 (Fla. 2nd DCA 1995), there is no prejudice to the Defendant in this case that could rise to the level required to prevent the Plaintiff from amending his pleading. In Carter, the defendant sought to amend its pleadings to assert certain counterclaims against the plaintiff. Id. at 557. The trial court denied the defendant the right to amend and the defendant appealed. Id. The Second District held:
Any potential prejudice to Ferrell could have been cured by granting a continuance, and, as it turned out, the case was in fact continued for reasons unconnected to the motion. Moreover, this was Carter’s first request to amend his pleadings. Under these circumstances, we hold that the trial court abused its discretion when it denied the motion to amend. Id.
5. Similarly, no trial date has been set. Additionally, the Plaintiff’s deposition has not been taken as of this time by the Defendant. Further, the requested relief does not materially alter the allegations in this case.
B. Abuse of Privilege to Amend
6. Florida courts may deny the party the right to amend in the case of numerous amendments to the complaint regarding the same cause of action. See Feigin v. Hospital Staffing Services, Inc., 569 So.2d 941 (Fla. 4th DCA 1990) (affirming the trial court’s decision to deny amendment for the seventh time). However, the Plaintiff has not even come close to abusing its rights to amend. At most, the instant motion is only the Plaintiff’s first attempt to amend his pleadings. Thus, under Florida law, the Plaintiff’s right to amend should not be denied. As stated by the court in Kohn v. City of Miami Beach, 611 So.2d 538 (Fla. 3d DCA 1992):
While there is no magical number of amendments that are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion.
See also Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983) (affirming the trial court’s decision to deny amendment after five failed attempts to plead a cause of action failed).
7. Because, at best, this is only the Plaintiff’s first attempt to amend his pleading, preventing the Plaintiff from amending the complaint would be an abuse of discretion.
C. Futility of Amendment
8. In this case, the Plaintiff’s proposed amendment clearly is not futile as the contract entered into between the parties provides for an award of attorneys’ fees to the prevailing party. As stated by the Third District in Lewis v. Howanitz, 378 So.2d 310, 311 (Fla. 3d DCA 1987), “the trial court’s denial of the motions for rehearing and to amend may be sustained only if the tendered amended complaint showed on its face that the action could not be maintained . . . .” See also Posey v. Magill, 530 So.2d 985 (Fla. 1st DCA 1988).
9. Furthermore, there are very few, if any, cases where a Florida court has denied an amendment based on futility. As stated in the annotations to Florida Civil Procedure, Bruce J. Berman 1998 Edition at pages 171 – 172:
Despite the reference to futility as a factor that would support the denial of leave it is difficult to find an example of such denial under the case law. . . . Part of the reason for the paucity of cases on this issue may reflect a practice in the courts, where futility is the sole response to a motion for leave to amend, to permit the amendment first, and then address the legal sufficiency of the amended pleading on a motion to dismiss or for judgment on the pleadings.
Therefore, the amendment should not be denied.
10. “Florida courts have long followed the policy of allowing litigants to amend pleadings freely in order that causes may be tried on their merits.” Turner v. Trade-Mor, Inc., 252 So.2d at 384 (Fla. 4th DCA 1971). As such, the Plaintiff should be permitted to amend his complaint as indicated in his filing on March 7, 2007, because the amendment would not result in prejudice, would not result in an abuse of the right to amend, and would not be futile.
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing has been delivered via U.S. Mail to the following this __ day of March 2007:
Michael O. Massey, Esquire
Fla. Bar No. 153680
527 E. University Ave.
Gainesville, FL 32601