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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORDIA
Case No: 0:16-cv-61994-O’Sullivan
GARY KAHN,
Plaintiff,
vs.
CLEVELAND CLINIC FLORIDA
HEALTH SYSTEM NONPROFIT
CORPORATION d/b/a Cleveland
Clinic Hospital,
Defendant.
____________________________ /
PLAINTIFF’S RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION FOR LEAVE TO AMEND AFFIRMATIVE DEFENSES
TO SECOND AMENDED COMPLAINT
Plaintiff, GARY KAHN, (hereinafter “KAHN”), by and through undersigned counsel, in
opposition to Defendant’s Motion for Leave to Amend Affirmative Defenses to Second Amended
Complaint (DE #65) and add the plaintiff’s aide, Laurie Dennis, as a Fabre defendant, states as
follows:
PROCEDURAL BACKGROUND:
1. This is an action for damages sustained by Plaintiff, GARY KAHN, from
Defendant’s common law negligence and for injunctive relief pursuant to the Americans with
Disabilities Act, 42 USC. §12181, et seq. (“ADA”) and the ADA’s Accessibility Guidelines, 28
CFR Part 36 (“ADAAG”), as well as violation of Section 504 of the Rehabilitation Act of 1973,
29 USC §794 (the “Rehabilitation Act”) against Defendant, Cleveland Clinic Florida Hospital.
2. Plaintiff filed his Complaint on 8-18-16 and timely filed his Amended Complaint
on 11-1-16 (DE 14).
3. Defendant filed its Answer to the Amended Complaint and Affirmative Defenses
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on 12-7-16 (DE 20).
4. On 12-12-16, a Scheduling Order Setting Trial was signed by Judge Federico A.
Moreno. (DE 21)
5. On 1-4-17, Plaintiff filed his Initial Disclosures (DE 28) which included a
comprehensive list of all witnesses and the eyewitness, Laurie Denis.
6. On 2-1-17, the parties jointly agreed to Notice, Consent, and Reference of a Civil
Action to a Magistrate Judge and an Order of Reassignment to Magistrate Judge O’Sullivan was
entered on 2-8-17. (DE 31)
7. On 2-14-17 an Order on the parties’ Joint Motion to Remove Case from Trial
Docket and Extending Pretrial Deadlines was entered with the Court.
8. A Status Hearing was held on 2-24-17 and a new scheduling Order Setting Pretrial
Conference and Trial Date was entered with the Court. (DE 38)
9. The new Scheduling Order from the Magistrate clearly stated that the
deadline to amend the pleadings was March 27, 2017, some six (6) months ago. The new
Order further stated that any and all pretrial motions were to be filed no later than 9-19-17
and all discovery (including expert discovery) was to be completed no later than 9-5-17.
10. On 1-12-17, Plaintiff submitted to Defendant both his initial Interrogatories
Directed to Defendant, Cleveland Clinic Florida Hospital and his initial Request for Production to
Defendant, Cleveland Clinic Florida Hospital.
11. Plaintiff also requested an inspection of Defendant’s premises. On 1-30-17,
Plaintiff’s attorney and expert witness conducted an inspection but the same was limited in scope
by Defendant. Following the limited inspection, Plaintiff’s counsel sent an email with a letter to
Defendant’s counsel requesting a continued second inspection so that Plaintiff’s expert witness
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could complete his inspection of the premises. Since January 2017, Plaintiff’s counsel has sent
numerous emails, including but not limited to: 2-6-17, 2-20-17, 2-21-17, 2-22-17, 2-24-17, 3-31-
17, 6-2-17 and 6-7-17. To date Defendant has failed to provide any date(s) and time(s) for said
inspection as counsel for defendant has shown a continued contemptuous disregard of this court’s
orders and lack of cooperation.
12. On 2-23-17, Defendant submitted unsigned answers objecting to most
Interrogatories and objecting to most of the Request to Produce.
13. Plaintiff discovered from the answers to Interrogatories that Defendant was
inaccurately named in the Complaint and on 3-27-17, Plaintiff timely sought and obtained an order
allowing for a Second Amended Complaint for Damages and Injunctive Relief to be filed. (DE 42)
14. After much discussion between the parties’ counsel in the presence of the court as
it pertained to Defendant’s discovery responses, and with the court intervention, an Agreed Order
on Plaintiff’s Request for More Specific Discovery Answers and Responses was entered on 4-25-
17. Defendant submitted unsigned Amended Answers to Interrogatories and Responses to
Request to Produce on 5-4-17. To date, Defendant has repeatedly failed to completely comply
with this Order and Plaintiff has yet to receive the ordered blueprint of Defendant’s facility,
although the same was literally obtained by a copy service just the other day.
15. On 3-31-17, Defendant submitted its first and only set of Interrogatories to Plaintiff.
Those interrogatories failed to ask the Plaintiff as to how the incident occurred or what caused it
to happen.
16. Plaintiff initially submitted his unverified Answers to Interrogatories and on 6-26-
17, Plaintiff submitted his verified Answers to Interrogatories, a copy of which is attached hereto
and incorporated herein as Exhibit “A”.
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17. Due to defense counsel’s failure to seek discovery as to how the incident occurred
or what caused it to happen and with the upcoming discovery deadline, Plaintiff’s counsel
repeatedly requested dates for the Defendant to take Plaintiff’s deposition and the deposition of
Plaintiff and his aide, the eyewitness Laurie Denis. Plaintiff also repeatedly sought a date for the
depositions of Defendant’s employees. The requests included, but were not limited to dates of 4-
27-15, 5-15-17, 5-23-17 and 5-24-17.
18. Defendant’s counsel failed to provide any dates and times for employees’
depositions and Plaintiff’s counsel had to pick dates and times to set the depositions which were
taken on 7-25-17. Defense counsel finally set the deposition of Plaintiff for 8-5-17, one month
before discovery cut-off, and the deposition of Plaintiff’s aide, Laurie Denis, for 8-26-17, just ten
(10) days before discovery cut-off of 9-5-17.
19. As the discovery cut-off date of 9-5-17 was approaching and discovery was far
from being completed, the parties’ counsel had a second discovery hearing with Magistrate Judge
O’Sullivan on 9-5-17, and an Order was entered extending the discovery cut-off to 10-17-17 (DE
64).
20. Currently, the depositions of Defendant’s remaining employees are scheduled for
10-4-17 and the deposition of Defendant’s expert witness is scheduled for 10-5-17.
LEGAL ARGUMENT:
As a rule, a motion for leave to amend should be granted in a federal district court “shall
be freely given when justice so requires.” Fed. R. Civ. P. 15; Foman v. Davis, 371 U.S. 178, 182
(1962). In the language of the Foman Court,
In the absence of any apparent or declared reason-such as 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
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opposing party by virtue of allowance of the amendment, futility of
amendment, etc., the leave sought should, as the rules require, be ‘freely
given.’
*2 Foman, 371 U.S. at 182.
This rule applies to motions to amend to add a Fabre affirmative
defense. See, e.g., Walters v. Altec Industries, Inc., --- F.Supp. ----, 2003
WL 22012046 (M.D. Fla. 2003)
However, this court entered a scheduling Order on February 24, 2017. Other than
extending the discovery date, due to the Defendant’s failure to comply with this court’s previous
order compelling disclosures of expert witness reports by March 2017, nothing else has been
superseded. A review of the applicable Rules of Procedure shows:
Fed. R Civ. P. 16(b)(4)—Scheduling
Modification of the Court's Scheduling Order is governed pursuant to
Federal Rule of Civil Procedure 16(b)(4). The Rule states the court's
scheduling order “may be modified only for good cause and with the judge's
consent.” (Fed.R.Civ.P. 16(b)(4)). Good cause requires a showing that “the
schedule cannot ‘be met despite the diligence of the party seeking the
extension.’ “ Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th
Cir.1998) (quoting Fed.R.Civ.P. Advisory Committee's Note). Mere
“carelessness is not compatible with a finding of diligence and offers no
reason for a grant of relief' “ Will-burn Recording & Pub. Co. v. Universal
Music Group Records, 2009 U.S. Dist. 35562 at *2 (S.D.Ala., Apr. 27,
2009) (slip op.) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 609 (9th Cir.1992)). In other words, the moving party cannot establish
the diligence necessary to show good cause if it had full knowledge of the
information before the scheduling deadline passed or if the party failed to
seek the needed information before the deadline. See S. Grouts & Mortars,
Inc. v. 3M Co., 575 F.3d 1235, 1241–42 n. 3 (11th Cir.2009).
The court ordered deadline to amend the pleadings is this case was March 27, 2017.
The 2nd Amended Complaint was timely filed to correct the defendant’s name. Cleveland
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Clinic’s motion to amend does not meet the court ordered deadline coming six (6) months
later. (DE 38).
When a motion to amend is filed after the scheduling order deadline, Rule 16(b) initially
applies rather than Rule 15(a).
Cleveland Clinic’s failure to file this motion for six (6) months after the court ordered
deadline for doing so, should be fatal since it cannot establish “good cause” for failing to do so.
Failure to comply with scheduling orders may be excused only upon a finding of “good cause” for
failing to do so. Cleveland Clinic does not even mention this well settled rule of law in its very
late motion.
Cleveland Clinic attempts to do so now since its motion to amend after the date permitted
in the Order is silent on its burden. As the district court clearly stated in White v Sacred Heart
Health System, 2016 WL 1426450( USDC ND Fla. 2016) and, citing to Williams v. Blue Cross &
Blue Shield of Florida, Inc., No. 3:09cv225/MCR/MD, 2010 WL 3419720, at *1 (N.D.Fla. Aug.
26, 2010):
Under Fed.R.Civ.P. 16(b)(4), the court's scheduling order “may be
modified only for good cause and with the judge's consent.”
Fed.R.Civ.P. 16(4)(b). Good cause requires a showing that the schedule
cannot 'be met despite the diligence of the party seeking the extension.'
‘ Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir.1998) (quoting
Fed.R.Civ.P. 16 Advisory Committee's Note). Mere “ 'carelessness is not
compatible with a finding of diligence and offers no reason for a grant of
relief.’ ” Will-burn Recording & Pub. Co. v. Universal Music Group
Records, No. 08–0387, 2009 WL 1118944, at *2 (S.D.Ala.2009) (slip op.)
(quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
Cir.1992)). In other words, the moving party cannot establish the diligence
necessary to show good cause if it had full knowledge of the information
before the scheduling deadline passed or if the party failed to seek the
needed information before the deadline. See S. Grouts & Mortars, Inc.
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v. 3M Co., 575 F.3d 1235, 1241–42 n.3 (11th Cir.2009). “A finding of
lack of diligence on the part of the party seeking modification ends the
good cause inquiry.” Lord v. Fairway Elec. Corp., 223 F.Supp.2d 1270,
1277 (M.D.Fla.2002); see also Beauregard v. Continental Tire North
America, Inc., 2009 WL 464998, at *2 (M.D.Fla. Feb. 24, 2009) (slip op.)
(quoting Sosa and the Advisory Committee's Notes for the proposition that
“[a] finding of good cause is reserved for situations in which the
schedule cannot be met despite the diligence of the party seeking the
extension”) (internal marks omitted). As the court noted in Moyer v. Disney
World Co., 146 F.Supp.2d 1249, 1252 (M.D.Fla.2000), “[a] Scheduling
Order 'is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded by counsel without peril.' ” Id. (quoting Payne v. Rider Sys.,
Inc. Long Term Disability Plan, 173 F.R.D. 537, 540 (M.D.Fla. 1997)).
“The object of Rule 16(b) is to 'assure that at some point ... the pleadings
will be fixed.' ” Vazquez v. LCM Inv. Group, Inc., 2006 WL 4835922, at *2
(M.D.Fla. Aug. 24, 2006) (citing Fed.R.Civ.P. 16 Advisory Committee's
Note). “Recognizing the perils of disorderly litigation, '[t]he Eleventh
Circuit has consistently held that motions filed after a deadline imposed by
a court should be denied as untimely.' ” Moyer, 146 F.Supp.2d at 1252
(quoting Payne, 173 F.R.D. at 540).
White, --- F.3d ----, 2016 WL 1426540, at *7, 8.
DEFENDANTS DISTORTION OF AND USE OF ALTERNATIVE FACTS:
The allegation that the Second Amended Complaint did not place the defendant on notice
of the issue being the three (3) misplaced receptacles in the special needs bathroom is ludicrous.
The details in the Second Amended Complaint placed the defendant on notice with sufficient
details of the alleged negligence and ADA violation. That was clearly done by repeatedly stating
that the issue was the improper placement of three (3) large receptacles, one for soiled linen, one
for contaminated linen and one waste receptacle.
As shown by the diagram attached to the Laurie Dennis deposition, Exhibit “B” attached
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hereto, the alleged ADA compliant bathroom was, in fact, used as a changing room and housed
bins for both soiled and contaminated linen. As a result of the improper storage of these two (2)
soiled linen receptacles in that bathroom, the waste receptacle was improperly placed right in front
of the sink. The combination of these three (3) improperly placed receptacles in that bathroom, in
conjunction with one other ADA violation, caused the series of events that led to KAHN’S injury.
As was discovered during the recent depositions of defendants’ employees, which was
conducted on the CLEVELAND CLINIC 4th floor, the ADA bathroom on the 4th floor used by
KAHN, was photographed. See Exhibit “C” attached hereto. These photos clearly show how
an ADA bathroom should be kept, i.e. no soiled or contaminated linen bins, and the waste
paper receptacle was in the proper spot, giving anyone in a wheelchair ample room to
maneuver.
The allegations of negligence in this case are simple, the waste paper receptacle was out of
position due to the two (2) soiled and contaminated linen bins. Had those receptacles not been
there, the waste receptacle would have been in a totally different position and this incident would
have never happened.
In addition, the deposition testimony of Laurie Denis was just provided. Rule 30 allows
the witness thirty (30) days to review and edit her testimony.
The testimony of KAHN is taken out of context and does not support the argument of the
movant. The KAHN deposition testimony cited by Defendant is taken out of context and in fact
is quite clear, despite the fact that the defense chose to obviate the point:
(Khan Dep. 89: 20-25; 11 August 5, 2017)
Did the positioning of these alleged blue bag and red bag
receptacles have anything to do with Miss Dennis trying to move the
wheelchair back into place so you could sit back down in it?
A. The only thing it did is take up room. When I came
in it, I had to come in a certain way.
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(Khan Dep. 90: 2-6)
Q. All right.
But they weren’t in the way of Miss Dennis moving
you in position in the first instance or trying to move back in position
so you could sit back down?
(Khan Dep. 90: 9-10)
THE WITNESS: They took up room, but they did not
influence the injury. (meaning that Kahn did not fall on the receptacles)
(Khan Dep. 91: 20-24)
Q. Well, did the free-standing garbage can interfere with
your being wheeled in in the first instance so you could grab the bars and
sit on the toilet?
A. No. (meaning he could still get to the toilet and the grab
bars)
LAURIE DENNIS WAS NOT EVEN ARGUABLY NEGLIGENT:
The deposition testimony of Laurie Denis was just provided. Rule 30 allows the witness
thirty (30) days to review and edit her testimony. Still, her deposition testimony does not come
close to showing she was negligent. She, in fact, backed up the KAHN wheelchair into the only
space available, as the two soiled and contaminated linen bins took up needed maneuvering room.
The key issue was that the waste receptacle was way out of place, due to the placement of the two
soiled and contaminated linen bins. We do know that the wheelchair back wheels became locked
up by the waste receptacle, the fact Ms. Denis confirmed as she was exiting the ADA bathroom.
(Denis Dep. 42: 1-11)
A. The trash can was in between the swivel wheels.
Q. Well, can you describe for me where exactly the trash
can was with respect to the swivel wheels.?
A. The swivel wheels are behind and they’re the directional
wheels. The trash can got stuck between them.
Q. Was the trash can exactly between the 2 swivel wheels?
A. Yes.
(Denis Dep. 43: 19-24)
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Q. How do you know if the wheels got caught in the trash
can then?
A. Because when he went down there was a lady that pulled
the trash can out from behind the wheelchair and I couldn’t move the
wheelchair to get him in it.
As described, it was the first responders who literally pried the two things
apart. (Denis Dep. 72: 11-25; 73: 1-13)
CONCLUSION:
The motion to amend to add Denis as a Fabre Defendant must be denied. The aide, Laurie
Denis, was disclosed as an eyewitness as early as January 4, 2017 in Plaintiff’s Initial Disclosures.
(DE 28). Defendant failed to ask a single question as to the what happened until August 2017.
Defense counsel was not engaged in this case until he finally deposed both KAHN and his aide in
August 2017. As the moving party cannot establish the diligence necessary to show good
cause if it had full knowledge of the information before the scheduling deadline passed, or if
the party failed to seek the needed information before the deadline, the motion to amend to
add Laurie Denis as a Fabre Defendant must be denied.
CERTIFICATE OF SERVICE
I CERTIFY that a copy of the foregoing was e-filed and e-mailed to RONALD M.
ROSENGARTEN, ESQ., Greenberg Traurig, P.A. (rosengartenr@gtlaw.com;
abrahamd@gtlaw.com; flservice@gtlaw.com) on September 28, 2017.
LAW OFFICE OF GARY E. SUSSER, P.A.
Attorney for Plaintiff
2755 S. Federal Highway, Suite 13
Boynton Beach, FL 33435
561-735-4636
/S/ GARY E. SUSSER, ESQ.
By: ______________________________
GARY E. SUSSER, ESQ.
FBN: 622710
Eservice: courtdocs@susserlaw.com
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