UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:22-cv-24066-KMM

GRACE, INC., et al.,

Plaintiffs,

v.

CITY OF MIAMI,

Defendant.

___________________________________ /

ORDER

THIS CAUSE came before the Court upon Plaintiffs’

1 Notice and Motion for Leave to File 

Second Amended Complaint. (“Mot.”) (ECF No. 138). Therein, Plaintiffs request permission to 

file a second amended complaint that “consolidates the allegations of the First Amended 

Complaint and Supplemental Complaint (together, ‘Operative Complaint’),2deletes obsolete 

allegations, updates certain allegations to conform to new or newly discovered information, and 

reduces Plaintiffs’ nominal damages demand to $1 per Plaintiff.” Id. at 1. Defendant (“Defendant”

or “City of Miami”) filed a response in opposition (“Resp.”) (ECF No. 140), and Plaintiffs filed a 

reply (“Reply”) (ECF No. 141). The matter is now ripe for review.

I. LEGAL STANDARD

Rule 15(a) of the Federal Rules of Civil Procedure provides that “[a] party may amend its 

1 Plaintiffs in this Action are Clarice Cooper, Yanelis Valdes, Jared Johnson, Alexandra Contreras,

Steven Miro, GRACE, Inc., Engage Miami, Inc., South Dade Branch of the NAACP and MiamiDade Branch of the NAACP (collectively, “Plaintiffs”).

2 The term “Operative Complaint” refers to the allegations jointly contained in the First Amended 

Complaint (ECF No. 23) and the Supplemental Complaint (ECF No. 109). 

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pleading once as a matter of course within . . . 21 days after service of a motion under Rule 12(b), 

(e), or (f).” Fed. R. Civ. P. 15(a)(1)(B). Beyond that, “a party may amend its pleading only with 

the opposing party’s written consent or the court’s leave” and “[t]he court should freely give leave 

when justice so requires.” Fed. R. Civ. P. 15(a)(2). The decision whether to grant leave to amend 

is committed to the sound discretion of the trial court. Best Canvas Prods. & Supplies, Inc. v. 

Ploof Truck Lines, Inc., 713 F.2d 618, 622 (11th Cir. 1983). 

However, “[a] plaintiff seeking leave to amend its complaint after the deadline designated 

in a scheduling order must demonstrate ‘good cause’ under Fed. R. Civ. P. 16(b).” S. Grouts & 

Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241 (11th Cir. 2009) (citing Sosa v. Airprint Sys., 133 

F.3d 1417, 1418 n.2 (11th Cir. 1998)). “To establish good cause, the party seeking modification 

to the scheduling order must establish that the schedule could not be met despite the party’s 

diligence.” Ashmore v. Sec’y, Dep’t of Transp., 503 F. App’x 683, 685 (11th Cir. 2013) (citation 

omitted); see also Sosa, 133 F.3d at 1419. A plaintiff must first demonstrate good cause under 

Rule 16(b) before a court will consider whether amendment is proper under Rule 15(a). Sosa, 133 

F.3d at 1419.

II. DISCUSSION

Plaintiffs’ request to amend the First Amended Complaint occurred prior to the deadline 

set forth in the Court’s Paperless Order Scheduling Trial. See (ECF No. 32) (establishing the 

deadline to amend as 45 days after the first responsive pleading, here, January 11, 2024). Because 

Defendant did not consent in writing to Plaintiffs’ request to amend the First Amended Complaint, 

the Court will use its discretion to grant leave if “justice so requires.” Fed. R. Civ. P. 15(a)(2). 

Plaintiffs need not establish “good cause” to justify amendment.

Plaintiffs argue that the Court should grant leave to amend because their counsel made an 

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error when making demands for nominal damages. See Mot. at 3–4. Plaintiffs had previously 

demanded $100 per Plaintiff in nominal damages, but now, they seek to amend the First Amended 

Complaint to seek $1 in nominal damages per Plaintiff, which they aver is legally required. Id. at 

3 (collecting cases). Plaintiffs assert that this alteration is the “principal difference between the 

Operative Complaint and the Proposed Second Amended Complaint” and the proposed 

amendments would “not substantially change the Operative Complaint’s allegations or insert new 

issues that require discovery.” Id. According to Plaintiffs, Defendant’s “objections do not rise to 

the ‘substantial reasons’ needed to deny leave to amend.” Reply at 3 (citing Burger King Corp. v. 

Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999)). 

Defendant raises three arguments in response: (1) Plaintiffs’ Proposed Second Amended 

Complaint alters the standing analysis with respect to Plaintiff GRACE; (2) Plaintiffs improperly 

use this Motion to thwart Defendant’s demand for a jury trial; and (3) amendment would prejudice 

Defendant and delay the case. See generally Resp. Because the Court already adjudicated the 

issue of whether Plaintiff Grace has standing, and answered in the affirmative, the Court will not 

address that argument. See (ECF No. 139 at 10 n.7). The Court analyzes Defendant’s remaining 

arguments below.

A. Plaintiffs May Amend to Comply with the Law of Nominal Damages

Regarding the first argument, Defendant argues that Plaintiffs should not be permitted to

amend, and thus correct, the First Amended Complaint because Plaintiffs “seek[] to make this 

amendment as a predicate for challenging [Defendant’s] jury trial demand.” Resp. at 5. Defendant 

further argues that Federal Rules of Civil Procedure 38 and 39 dictate that once Defendant makes 

a jury demand, Plaintiffs may not “unilaterally remove the City’s right to a trial by jury without 

the City’s consent.” Id. at 5–6. To Defendant, Plaintiffs may not amend their First Amended 

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Complaint such that a jury triable issue no longer exists. See id.

This argument, however, ignores that Plaintiffs are not permitted to seek nominal damages 

to the extent set forth in the First Amended Complaint as a matter of law. As Plaintiffs correctly 

identify, their request for nominal damages in the First Amended Complaint runs afoul of case law

holding that $1 is the appropriate amount of nominal damages. See Mot. at 3 (citing Whitfield v. 

Thompson, 165 F. Supp. 3d 1227, 1238 n.4 (S.D. Fla. 2016); Kyle v. Patterson, 196 F.3d 695, 697 

(7th Cir. 1999); Familias Unidas v. Briscoe, 619 F.2d 391, 402 (5th Cir. 1980); Harrison v. Myers, 

2011 WL 3204372, at *7 (S. D. Ala. July 13, 2011)). To maintain a claim for nominal damages—

a claim that Plaintiffs have asserted since the inception of this lawsuit (ECF No. 1)—Plaintiffs 

must amend their First Amended Complaint accordingly. 

Indeed, Defendant does not seriously argue that Plaintiffs are not entitled to amend their 

Complaint under Rule 15. See generally Resp. Rather, the crux of Defendant’s opposition relates 

to the consequence of this potential amendment. See Resp. at 5. Should Plaintiffs amend in the 

manner described above, Defendant would have no right to a jury trial. The Seventh Amendment 

states in relevant part: “[i]n Suits at common law, where the value in controversy shall exceed 

twenty dollars, the right of trial by jury shall be preserved.” U.S. Const. amend. VII. Here, where 

there are nine Plaintiffs, the Proposed Second Amended Complaint would seek only $9 in nominal 

damages, and thus, there would be no jury-triable issue. Accordingly, Defendant does not argue 

that amendment under Rule 15 is improper, but instead, that the consequence flowing from such 

amendment would thwart its previously asserted right to trial by jury. See Resp. at 5. 

Specifically, Defendant argues that Rules 38 and 39 provide the procedures for 

demanding—and rescinding—the right to a jury trial, and Plaintiffs “want to unilaterally prohibit” 

Defendant’s right to a jury trial without its consent. Id. at 5–6. According to Defendant, “once a 

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party files a jury demand, the demand ‘may not be withdrawn without the consent of the parties[,]’” 

which Defendant has not given. Id. at 5 (citations omitted). In Defendant’s view, Plaintiffs may 

not amend their First Amended Complaint to remedy a legal error because doing so is tantamount 

to a unilateral rescission of Defendant’s right to a jury trial.3 See id. at 5–6.

Even if the Court were to entertain Defendant’s argument, Rules 38 and 39 do not dictate 

that Plaintiffs may not amend the First Amended Complaint, even if doing so would result in the 

lack of a jury-triable issue. Rule 38 provides that: “The right of trial by jury as declared by the 

Seventh Amendment to the Constitution—or as provided by a federal statute—is preserved to the 

parties inviolate.” Fed. R. Civ. P. 38. Further, Rule 39(a) provides: “When a jury trial has been 

demanded under Rule 38 . . . The trial on all so issues so demanded must be by jury unless: (1) 

the parties or their attorneys file a stipulation to a nonjury or so stipulate on the record; or (2) the 

court, on motion or on its own, finds that on some or all of those issues there is no federal right to 

a jury trial.” Fed. R. Civ. P. 39(a) (emphasis added). Put simply, this is not a case where Plaintiffs 

demanded a jury trial, Defendant relied on such a demand, and Plaintiffs then attempted to 

unilaterally rescind the demand in violation of Rule 39(a)(1). Rather, Plaintiffs seek only to 

remedy a legal error in their pleadings, the consequences of which will result in there being no 

jury-triable issue. This consequence falls squarely within the confines of Rule 39(a)(2), where the 

3

 Defendant also argues that because Plaintiffs have consistently taken the position that they are 

seeking $100 in nominal damages, they are judicially estopped from changing positions because 

“[t]he City relied on Plaintiffs’ repeated request for damages.” Resp. at 6. This argument is 

entirely unconvincing. Defendant cannot seriously contend that they relied on repeated claims of 

nominal damages in the initial complaint (ECF No. 1) and the First Amended Complaint, 

particularly when such claims were erroneously pled, as a reason that this case would proceed to 

trial by jury. See id. Moreover, it is nonsensical for Defendant to argue that the proposed 

amendment seeking to alter a claim for $100 in nominal damages to $1 in nominal damages is an

“inconsistent position” when Plaintiffs have clearly asserted throughout this Action that they seek 

nominal damages. 

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Court could find that there is no federal right to a jury trial. It is therefore entirely consistent with 

the Federal Rules of Civil Procedure that Plaintiffs could amend the First Amended Complaint, 

and upon doing so, that the Court could find that no jury-triable issue exists, even if one 

theoretically existed prior.

Because Plaintiffs have consistently asserted that they were seeking nominal damages, the 

Court finds pursuant to Rule 15(a)(2) that they should be permitted to amend the First Amended 

Complaint to alter the amount of nominal damages sought in accord with Eleventh Circuit case 

law. Permitting Plaintiffs to amend their pleading to adhere to the law of nominal damages, when 

they have consistently asserted a right to nominal damages (albeit incorrectly) comports with Rule 

15’s mandate to grant leave to amend when “justice so requires.” Fed R. Civ. P. 15(a)(2).

B. Defendant Does Not Suffer Unfair Delay and Prejudice

Defendant also argues that granting Plaintiffs leave to amend the First Amended Complaint 

would result in unfair prejudice and unduly delays the case given that discovery has closed and 

dispositive motions have been filed. Resp. at 7 (citing Campbell v. Emory Clinic, 166 F.3d 1157, 

1162 (11th Cir. 1999).

4 But tellingly, Defendant cannot identify any reason that amendment would 

delay trial or otherwise prejudice it except for the previously rejected argument about Plaintiff 

GRACE’s standing to bring suit. See id. at 7–8. Because Defendant cannot identify any 

4

In support of this argument, Defendant proffers the following quotation from Campbell: 

“Prejudice and undue delay are inherent in an amendment asserted after the close of discovery and 

after dispositive motions have been filed, briefed, and decided.” Resp. at 7 (quoting Campbell, 

166 F.3d at 1162) (emphasis omitted). But that case is clearly distinguishable. In Campbell, the 

motion to amend the complaint was filed over a year after discovery closed, and the proposed 

amendments purported to provide notice to two individuals that a claim of breach of fiduciary duty 

was asserted against them. Id. at 1161–62. Moreover, the Court held that “amendment at the late 

date offered would have been futile, caused undue delay and expense, and resulted in unfair 

prejudice to the individual defendants.” Id. at 1162. These circumstances are clearly 

distinguishable from this Action where the principal amendment relates to the dollar amount of 

nominal damages and no other prejudice or undue delay would result.

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substantive change to the Proposed Second Amended Complaint which has not already been fully 

briefed and adjudicated, the Court cannot find that amendment would prejudice the Defendant. 

Nor has Defendant proffered any reason why the case could not proceed to trial as scheduled based 

on the proposed amendment. Plaintiffs may amend their First Amended Complaint.

III. CONCLUSION

Accordingly, UPON CONSIDERATION of the Motion, the pertinent portions of the 

record, and being otherwise fully advised in the premises, it is hereby ORDERED AND 

ADJUDGED that Plaintiffs’ Motion for Leave to Amend Complaint (ECF No. 135) is GRANTED. 

DONE AND ORDERED in Chambers at Miami, Florida, this ____day of December, 2023.

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE

c: All counsel of record

29th

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