*

Plaintiff sued Defendant on September 8, 2000 alleging that Defendant violated Title II of the Americans with

Disabilities Act (“ADA”), 42 U.S.C.A. § 12101, et seq. (1995) and Section 504 of the Rehabilitation Act of 1973, 29

U.S.C.A. §§ 794-794a (1999), because its process for renewing drivers licenses discriminated against persons with

disabilities. Specifically, Plaintiff claims that Defendant’s requirement that she submit to a comprehensive examination

to demonstrate her qualifications as a driver in order to renew her drivers license violated the ADA and the Rehabilitation

Act. On August 25, 2005, the Fifth Circuit Court of Appeals affirmed this court’s September 30, 2002 decision denying

Defendant’s motion to dismiss Plaintiff’s Rehabilitation Act claim on the basis of sovereign immunity, and remanded

the case to this court. Espinoza v. Texas Department of Public Safety, No. 02-11168, slip op. at 2 (5th Cir. Aug. 25,

2005), cert. denied, 126 S.Ct. 1652 (2006). 

Memorandum Opinion and Order - Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JULIE DUNLOP ESPINOZA, §

§

Plaintiff, §

§

v. § Civil Action No. 3:00-CV-1975-L

§

TEXAS DEPARTMENT OF PUBLIC §

SAFETY, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiff’s Second Motion to Amend Complaint, filed October 27, 2006.

By her motion, Plaintiff seeks leave of court to amend her complaint to seek damages under Section

504 of the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 794-794a (1999).* Defendant opposes the

relief requested. Having considered the motion, response, record and applicable law, the court

grants Plaintiff’s Second Motion to Amend Complaint. 

I. Discussion

Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading “shall be freely

given when justice so requires.” Fed. R. Civ. P. 15(a). The federal rules permit liberal pleading and

amendment to facilitate adjudication of the merits by avoiding excessive formalism. See Lowrey v.

 

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Memorandum Opinion and Order - Page 2

Texas A & M Univ.,117 F.3d 242, 245 (5th Cir. 1997). The decision whether to grant leave lies within

the sound discretion of the trial court. Louisiana v. Litton Mortgage Co., 50 F.3d 1298, 1302-03 (5th

Cir. 1995). Leave to amend should be given in the absence of “undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party, or futility of amendment.” In re Southmark Corp., 88

F.3d 311, 314 (5th Cir. 1996), cert. denied, 519 U.S. 1057 (1997).

On July 21, 2006, the court entered a scheduling order requiring the parties to file all motions

to amend and motions to join additional parties by no later than October 27, 2006. Plaintiff filed her

Second Motion to Amend Complaint on October 27, 2006. Thus, her motion is timely and should

be considered under Rule 15(a). In its response, Defendant contends that Plaintiff’s motion should be

denied, since she must “elect between the two remedies she seeks, either choosing to pursue a claim

for damages under the Rehabilitation Act, 29 U.S.C. § 794a, or to pursue injunctive relief only against

the State under the Americans With Disabilities Act, 42 U.S.C. § 12101 because of the Ex Parte Young

exception to Defendant’s Eleventh Amendment immunity.” Defendant’s response fails to mention

Rule 15(a), or any considerations a court should consider in determining whether to allow

amendment of the pleadings under Rule 15(a). The court finds no evidence of undue delay, bad

faith or dilatory motive on the part of Plaintiff, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to Defendant, or futility of amendment. Moreover, having

considered Defendant’s opposition, the court determines that the argument it raises is inapposite to

a motion for leave to amend pleadings, and more properly the subject of a motion to dismiss. 

 

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Memorandum Opinion and Order - Page 3

II. Conclusion

For the reasons set forth above, the court grants Plaintiff’s Second Motion to Amend

Complaint. The court directs Plaintiff to file her Second Amended Complaint within three (3)

business days of this order. 

It is so ordered this 21st day of November, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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