Averett v. Hardy

• Decision Date: 09 June 2022
• Docket Number: 3:19-cv-116-BJB
• Parties: KEMARI AVERETT Plaintiff v. Shirley Ann Hardy, et al. Defendants
• Court: U.S. District Court — Western District of Kentucky

KEMARI AVERETT Plaintiff
v.
Shirley Ann Hardy, et al. Defendants

No. 3:19-cv-116-BJB

United States District Court, W.D. Kentucky, Louisville Division

June 9, 2022

MEMORANDUM OPINION & ORDER

Benjamin Beaton, District Judge United States District Court

The University of Louisville expelled Kemari Averett after a disciplinary hearing concerning a rape allegation against him. Second Amended Compl. (DN 5) ¶¶ 17-23. Averett then sued the accuser, the University, its board, and several of its employees involved in the disciplinary process. He accused them of denying his right to due process, violating Title IX, defamation, and intentional infliction of emotional distress. ¶¶ 38-78.

Averett has asked the Court-for a fifth time-to allow him to amend his complaint. DN 117. Following his initial complaint, Averett amended once as a matter of course, DN 4, and a second time with the defendants' written consent, DNs 5 & 21. See FED. R. CIV. P. 15(a). He then moved to amend a third and a fourth time. DNs 32 & 41. The Court denied both motions. DN 55. Meanwhile, Shirley Hardy- a student conduct officer at Uof L-moved for summary judgment on the procedural due-process claim against her, DN 128, and Averett asked the Court to defer ruling to allow more time for discovery, DN 132.

Because this attempt to amend, like Averett's last two, fails under the rules that govern federal civil litigation, the Court denies Averett's motion to amend and motion to defer Hardy's summary-judgment motion. The Court orders Averett to file his response to that motion within 21 days.

i. Averett's Motion to Amend

The proposed fifth amended complaint, DN 117-2, is strikingly similar to the operative (second amended) complaint, DN 5. That is surprising: the Court previously granted a motion to dismiss filed by the University of Louisville defendants on several claims now repeated in the proposed amended complaint. See generally MTD (DN 26). That Order dismissed all counts against the University of Louisville defendants, with the exception of the due-process claim against Hardy in her individual capacity. DN 55 at 22. Averett's latest proposed complaint re-asserts those dismissed claims against Hardy and the previously dismissed defendants.

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Proposed Fifth Amended Compl. (DN 117-2) ¶¶ 41-91 (reasserting counts I through IV). It also joins a new defendant, Brian Bigelow, who was the Title IX coordinator at the University of Louisville. ¶ 14. Finally, the latest proposed amended complaint adds a second procedural due-process claim-this one against Bigelow, Hardy, and other University administrators who were previously dismissed, based on a “second student conduct hearing on February 18, 2019.” ¶¶ 85-92.

A party may amend its pleading “as a matter of course within 21 days after serving it, or ... 21 days after service of a responsive pleading.” FED. R. CIV. P. 15(a)(1). Outside that window, the party may amend “only with the opposing party's written consent or the court's leave.” FED. R. CIV. P. 15(a)(2). Courts “should freely give leave when justice so requires, ” id., but “should . den[y] if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile, ” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995). Futility means “the proposed amendment would not permit the complaint to survive a motion to dismiss.” Miller v. Calhoun County, 408 F.3d 803, 817 (6th Cir. 2005).

After the deadline for amendment passes, Federal Rule of Civil Procedure 16 also comes into play. Then a district court may “allow Plaintiffs to file [an] amended complaint only if the scheduling order [is] modified.” Leary v. Daeschner, 349 F.3d 888, 907 (6th Cir. 2003). Rule 16 allows modification “only for good cause and with the judge's consent.” FED. R. CIV. P. 16(b)(4). A party may show good cause through demonstrating that “despite the moving party's diligent efforts, the party could not comply with the original deadline.” Newburgh/Six Mile Ltd. Partnership II v. Adlabs Films USA, Inc., 483 Fed.Appx. 85, 92 (6th Cir. 2012). Additionally, the court must consider “potential prejudice to the nonmovant” in deciding...