UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 9:20-cv-81175-AHS

STEVEN UNGER,

Plaintiff,

vs.

MAJORCA AT VIA VERDE HOMEOWNERS

ASSOCIATION INC.,

Defendant.

_________________________________/

PLAINTIFF’S MOTION FOR LEAVE TO AMEND HIS COMPLAINT 

AND INCORPORATED MEMORANDUM OF LAW

COME NOW, Plaintiff, STEVEN UNGEER, by and through her undersigned 

counsel and, pursuant to Fed.R.Civ.P. 15(a) moves this court for leave to amend her 

complaint, and in support thereof states: 

1. On July 17, 2020, Plaintiff STEVEN UNGER filed his complaint for damages 

arising from unlawful discrimination by the Defendant, MAJORCA AT VIA 

VERDE HOMEOWNERS ASSOCIATION INC. (Hereinafter “MAJORCA”)[DE 

1] 

2. On September 8, 2020 Defendant MAJORCA filed a Motion To Dismiss for Failure 

to State a Claim.

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3. On July 15, 2021 the Court entered an order dismissing Plaintiff’s complaint without 

prejudice, stating “Plaintiff has failed to sufficiently allege his reasonable 

accommodation request was refused but may be able to do so in an amended 

pleading.”

4. The July 15, 2021 Order states that Plaintiff may move to amend his complaint by 

July 30, 2021.

5. Accordingly, Plaintiff is moving to file his First Amended Complaint.

MEMORANDUM OF LAW

6. When, as in the instant case, the time period for filing an amendment of a pleading 

as of right has expired, Rule 15(a) of the Federal Rules of Civil Procedure requires 

that amendment may be provided "only by leave of court or by written consent of 

the adverse party." Fed. R. Civ. P. 15(a). However, Rule 15(a) states that leave to 

amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). This 

policy of liberally permitting amendments is to facilitate determination of claims on 

their merits. Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 407 (11th Cir. Fla. 

1989)

7. The Eleventh Circuit has held that motions for leave to amend complaints should be 

liberally granted when necessary, in the interests of justice. See Fla. Evergreen 

Foliage v. E.I. Dupont De Nemours & Co., 336 F. Supp. 2d 1239, 1251 (S.D. Fla. 

2004) citing Jennings v. BIC Corp., 181 F.3d 1250, 1258 (11th Cir. 1999) (stating 

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that "leave to amend should be liberally granted when necessary in the interest of 

justice" under Fed. R. Civ. P. 15(a)); Florida Power & Light Co. v. Allis Chalmers 

Corp., 85 F.3d 1514, 1520 (11th Cir. 1996) ("Unless substantial reason exists to deny 

leave to amend, the discretion of the district court is not broad enough to permit 

denial."), citing Shipner at 407. (11th Cir. 1989).

8. Grounds to deny leave to amend exist only "(1) where there has been undue delay, 

bad faith, dilatory motive, or repeated failure to cured deficiencies by amendments 

previously allowed; (2) where allowing amendment would cause undue prejudice to 

the opposing party; or (3) where amendment would be futile." Reese v. Herbert, 527 

F.3d 1253, 1263 (11th Cir. 2008) (quoting Burger King Corp. v. Weaver, 169 F.3d 

1310, 1319 (11th Cir.1999) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 

227, 230, 9 L.Ed.2d 222 (1962)). 

9. There is no substantial reason to deny STEVEN UNGER’s request to amend his

complaint. 

10. The amendment is proposed in good faith. 

11. Defendant will not be prejudiced by the proposed amendment. 

12. A copy of the proposed amended complaint is attached hereto as “Exhibit 1.”

WHEREFORE, Plaintiff respectfully requests this Court GRANT leave to file this 

Amended Complaint and the Exhibits thereto and grant such further relief as this 

Court deems just and equitable.

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CERTIFICATION OF COMPLAINCE WITH LOCAL RULE 7.1(A)(3)

Pursuant to Local Rule 7.1(a)(3), undersigned counsel certifies that she conferred 

with counsel for Defendant who has advised that this motion is opposed by 

Defendant and requested that the email attached hereto be provided to the Court. 

Undersigned counsel spoke with Justin Edell subsequent to the attached email and 

understands Majorca’s position to be that Plaintiff cannot plead a prima facie case, 

an assertion obviously disputed by Plaintiff and his counsel.

Respectfully submitted on this 26th day of July, 2021.

/s/ Marcy I. LaHart, Esq. 

Florida Bar No. 0967009

Marcy@floridaanimallawyer.com

MARCY I. LAHART, P.A.

249 SE Tuscawilla Road 

Micanopy, FL 32667

(352) 545-7001

CERTIFICATE OF SERVICE

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I hereby certify that on July 26, 2021, I electronically filed the foregoing with the 

Clerk of Court for United States District Court, Middle District of Florida, by using 

the CM/ECF system, which will send a copy of the document and notice of electronic 

filing to all counsel of record.

BY: s/Marcy LaHart

Counsel for Plaintiff

Case 9:20-cv-81175-AHS Document 18 Entered on FLSD Docket 07/28/2021 Page 5 of 6
From: Rachel K. Beige <Rachel.Beige@csklegal.com> 

Sent: Tuesday, July 27, 2021 5:01 PM

To: Marcy LaHart <marcy@floridaanimallawyer.com>; Justin D. Edell <Justin.Edell@csklegal.com>

Cc: Jane Ford <Jane.Ford@csklegal.com>; Mayber Delgado <Mayber.Delgado@csklegal.com>

Subject: RE: Second Request- RE: Steven Unger vs. Majorca at Via Verde Homeowners; CASE NO. 9:20-

cv-81175-AHS

Hi Marcy: 

I have been in meetings all day.

I have had a chance to review your proposed amended pleading, which entirely fails to address the 

Court’s order concerning the limited grounds for amendment. Instead of making the necessary 

allegations which the Court requires, the additional allegations appear to include further conclusory 

statements which, in large part, are disputed by the attachments/correspondence between the parties.

Your motion to amend is governed by both the Court’s order and Rule 15 which I recognize allows leave 

to be freely given. Of course, one of the grounds for denying a motion to leave is when the proposed 

amendment would be futile which, for our purposes, is met where the proposed amendment cannot 

withstand a motion to dismiss. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995).

Justin and I would be happy to discuss the continued deficiencies in your complaint. If you insist on 

filing the amendment, please attach this email as notice of our position and specifically reserving our 

right to file a Motion to Dismiss.

The Florida Law Firm

www.csklegal.com

 

Rachel K. Beige

Partner

Tel: 561-383-9228 | Fax: 561-683-8977

Rachel.Beige@csklegal.com

Cole, Scott & Kissane P.A.

222 Lakeview Avenue, Suite 120

West Palm Beach, Florida 33401

 

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