UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

MICAH FIALKA-FELDMAN Case Number 08-CV-14922 

 

 Plaintiff, Hon. Patrick J. Duggan 

v. 

OAKLAND UNIVERSITY BOARD 

OF TRUSTEES, GARY D. RUSSI, MARY BETH 

SNYDER, and LIONEL MATEN, in their 

official capacity, 

 Defendants. 

_________________________________________/ 

Michigan Protection & Advocacy Service, Inc. BUTZEL LONG 

Chris E. Davis (P52159) By: Robert A. Boonin (P38172) 

Gabrielle S. Frampton (P59499) 350 S. Main Street, Suite 300 

29200 Vassar Blvd., Suite 200 Ann Arbor, MI 48104 

Livonia, MI 48152 (734) 995-3110 

Phone: (248) 473-2990 Attorneys for Defendant 

Email: cdavis@mpas.org boonin@butzel.com 

Attorney for Plaintiff 

_____________________________________/ 

 PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED

COMPLAINT AND BRIEF IN SUPPORT

Plaintiff, through his counsel, respectfully requests this court to grant him leave to file 

a second amended complaint. This request is based upon newly discovered evidence 

which supports claims of disparate treatment discrimination in violation of Title II of the 

Americans with Disabilities Act, Section 504 of the Rehabilitation Act and the Fair 

Housing Act as Amended. This request is made pursuant to Fed. R. Civ. P., Rules 15 and 

18. 
BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO FILE 

SECOND AMENDED COMPLAINT

In support of his motion, Plaintiff states: 

Defendants have maintained that OU has a long held policy, and therefore they 

did not discriminate against the Plaintiff, specifically that on-campus student housing is 

reserved only for matriculated students taking courses leading to a degree (“matriculated

student policy”). In support of their position, Defendants point to the terms and 

conditions for on-campus housing outlined on the back of the housing application. 

On or about April 13, 2009, Plaintiff’s father discovered a front-and-back copy of 

the original Contract for Residence Hall Services (“application”) that Plaintiff completed

in the Fall of 2007. The application does not require that a student be matriculated in 

coursework leading to a degree to be eligible for on-campus housing. Plaintiff maintains

that those terms and conditions, specified in the above paragraph, are not on the back 

page of the housing application he completed in the Fall 2007. 

Additionally, Plaintiff’s father located the original letter denying Plaintiff’s 

housing application. This letter has no reference to the matriculating student policy. 

Instead Defendant Maten rescinded Plaintiff’s acceptance to housing because; “You are 

not an admitted Oakland University student and are not registered for Winter 2008 

classes.” 

In March 2008, Defendants changed OU’s application’s terms and conditions to

now include the matriculated student policy. Defendants made this change well after

Plaintiff applied and was accepted for on-campus housing. 

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Plaintiff believes these documents show that Defendants’ matriculated student 

policy is a pretext to conceal their disparate treatment of the Plaintiff. This new evidence 

supports a claim of disparate treatment discrimination in violation of Title II of the 

Americans with Disabilities Act, Section 504 of the Rehabilitation Act and the Fair

Housing Act as Amended. 

Fed. R. Civ. P., Rule 15 (a)(2) of the Federal Rules of Civil Procedure provides 

the court should freely and liberally give leave when justice so requires. Where Plaintiff 

has been denied student housing solely due to his disability, justice requires that Plaintiff 

have an opportunity to plead and prove his case. As one legal treatise has noted: 

While the provision of the Federal Rules of Civil Procedure governing 

amendments to pleadings before trial states that leave to amend is to be 

freely given when justice so requires, this does not require that leave to 

amend must be granted in all cases. The courts have developed a number 

of factors to be considered in determining whether to grant leave to 

amend, and among the reasons for denying leave to amend are undue

delay, bad faith or dilatory motive on the part of the movant, repeated 

failure to cure the deficiencies by amendments previously allowed, undue 

prejudice to the opposing party by virtue of allowance of the amendment, 

and futility of the amendment. According to some authority, in the 

absence of substantial or undue prejudice to the nonmoving party, denial 

of leave to amend must be based on bad faith or dilatory motives, truly 

undue or unexplained delay, repeated failures to cure the deficiency by 

amendments previously allowed, or the futility of the amendment. 27A 

Fed.Proc.,L.Ed. § 62:277 (2008). citations omitted. 

The Defendants would suffer no undue prejudice or delay should the Court grant 

Plaintiff’s motion. The statute of limitations is not an issue, Plaintiff is still well within 

the allowed time to bring this claim. Formal discovery has not begun and the Defendants 

will not be forced to repeat discovery, such as the retaking of depositions and such. In 

fact, the three new Defendants, Russi, Maten and Snyder, have not answered the First 

Amended Complaint. 

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There was no undue delay on the part of the Plaintiff. After receipt of this new 

evidence, Plaintiff attempted to addend his first motion to amend before the Court 

rendered its decision on April 20, 2009. However, the Court’s order was filed before 

Plaintiff could file his Motion to Addend. 

Additionally, Plaintiff’s motion is consistent with Fed. R. Civ. P. 18(a); “A party 

asserting a claim . . . may join . . . as many claims as it has against an opposing party.” 

Attached to this motion is the proposed amended complaint to be filed if leave is 

granted replacing the previously filed proposed amended complaint. [Exhibit #1] 

 Plaintiff’s counsel attempted but was unable to obtain concurrence from defense 

counsel in this matter on April 29, 2009. 

WHEREFORE, Plaintiff respectfully requests this honorable court to grant leave 

to file his amended complaint and to serve it upon Defendants. 

 

 Respectfully submitted, 

Dated: April 30, 2009 s/Chris E. Davis

 MICHIGAN PROTECTION & 

 ADVOCACY SERVICE, INC. 

 By: Chris E. Davis

 Gabrielle S. Frampton

 29200 Vassar Blvd., Suite 200 

 Livonia, MI 48152 

 Attorneys for Plaintiff

 (248) 473-2990 

 cdavis@mpas.org

 gframpt@mpas.org 

 P52159 

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CERTIFICATE OF SERVICE

I hereby certify that on April 30, 2009, I electronically filed the foregoing Plaintiff’s 

Motion for Leave to File Second Amended Complaint and Brief in Support with the 

Clerk of the Court using the ECF system which will send notification of such filing to the 

following: Robert A. Boonin. 

s/Chris E. Davis

MICHIGAN PROTECTION & 

ADVOCACY SERVICE, INC. 

29200 Vassar Blvd., Suite 200 

Livonia, MI 48152 

248-473-2990 

cdavis@mpas.org

P52159 

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