IN THE UNITED SATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MARK E. SCHMIDTER, INDIVIDUALLY,
and JULIAN HEICKLEN, individually,
CASE NO.: 6:12-CV-1102-ORL-36-KRS
DIVISION: CIVIL

            Plaintiffs,

vs.

BELVIN PERRY, JR, as Chief
Judge of the Ninth Judicial
Circuit Court of Florida,

            Defendant
_____________________________________/

DEFENDANT'S RENEWED MOTION FOR LEAVE TO FILE
AMENDED ANSWER AND AFFIRMATIVE DEFENSES


     Defendant BELVIN PERRY, JR., by and through his undersigned counsel and
pusuant to Rule 15(a) of the Federal Rules of Civil Procedure and this Court's April 2, 2013
Order (Doc. #48), hereby respectfully renews his Motion for Leave to file an amended
Answer amd Affirmative Defenses. In support of this Motion, Defendant states as follows:

1.     On July 17, 2012, Plaintiffs filed the instant ac tion for a declaratory judgment
pursuant to 28 U.S.C. §2201(a). (Doc. #1).  Plaintiffs are seeking, among other things, a
judgment declaring that an administrative order issued by Judge Perry, while acting as Chief
Judge of the Ninth Circuit Court in Orange County, Florida, Ithe "Challenged
Order") is unconstitutional.

2.     Defendant's initiasl Answer and Affirmative Defenses were timely filed on
October 4, 2012. (Doc. #9).

3.     Although this Court recently entered an Order dismissing Count II of the
Complaint as moot (Doc. #46) and denying Plaintiff Heicklen's December 21, 2012 Motion
enumerating the monetary damages which Plaintiff Heicklen wanted to recover in this case
(Doc. #31), Defendant still believes it is necessary to amend his original Answer and to assert
several additional sffirmative defenses, including, but not limited to, the defenses of eleventh
Amendment/sovereign immunity (and resulting lack of subject matter jurisdiction), absolute
judicial immunity, and qualified immunity.

4.    In their "Wherefore" clause following Count I, Plaintiffs are seeking, in
addition to a declaratory judgment, "any and all other legal  and equitable relief deemed just
and proper," thus leaving opn the possibility of a claim for some type of monetary claim
which would be subject to the above-referenced immunity defenses.

5.    Moreover, even where damages are not at issue, Defendant submits there is
case law supporting the application of an immunity defense.  See Bush v. Washington Mutual
Bank, F.A., 177 Fed. Appx. 16 (11th Cir. 2006); Cuyler v. United States District Court, 2011
WL 5525935, *2, n.7 (M.D. Fla. Nov. 14, 2011); Ronet v. Foster, 2006 WL 1980273, *2
(M.D. Fla. Jul 12, 2006); Fuller v. Truncale, 50 So. 3d 25 (Fla. 1st DCA 2010).

6.    Defendant further submits the Florida Fifth District Court of Appeal's recent
opinion in Plaintiffs' appeal of the underlying contempt action, Schmidter v. Florida, 2012),
WL 6629772 (Fla. 5th DCA Dec. 21 2012),
(A copy of this decision is attached as Exhibit "1" to
Defndant's proposed Amended Answer and Affirmative Defenses.)
where the administrative order at issue in this
case was held to be constitutional, and the fact that decision is now pending before the
Florida Supreme Court for review, provide Defendant with certain defenses which he should
be allowed to present in connection with the remaining Count I of the Complaint.

7.    Specifically, Defendant respectfully requests leave to assert affirmativ
 defenses which are related to the potential effect of the state appellate court decisions on the
instant case, including a Rooker-Feldman doctrine defense, collateral estoppel/res judicata,
and defenses raising comity, abstention, lack of ccase or controversy, plaintiff's possession of
adequate remedy at law, and Full Faith and Credit Act concerns.

8.    Defendant's proposed revised Amended Answer and Affirmative Defenses is
attached hereto as Exhibit "A" for the Court's review.
(Defendant has revised the previous submission proposed Amendment answer and
Affirmative Defense to reflect the fact Count II of the Complaint has been dismissed.)

9.    Plaintiffs will not be prejudiced by the proposed amendments.  discovery has
not yet commenced in this action, and the requested amendments will not delay the
prosecution of the case.  this case is not set for trial until the trial term beginning February 3,
2014, more than one year from now.  Consequently, Plaintiffs have sufficient time to
incorporate these defenses into discovery, trial preparation, and trial strategy.

10.    Defendantt has not abused the privilege to amend.  To the contrary, Defendant
was given permission by the Court to file this renewed Motion by April 16, 2013 (Doc. #48).

11.    Defendant would be unfairly and substantially prejudiced if he is denied the
opportunity to allege, as an affirmative defense, his absolute and/or qualified imminity to
Plaintiffs' claims and other defenses which might result in the dismissal of Plaintiffs; claims
against him.

12.    Defendant is filing this Motion in good faith and not for any improper
purpose.  here is no evidence of undue delay or bad faith by Defendant.  As mentioned
above, the matters on which Defendant relies to support his new defenses occurred on or
about December 1, 2012, and Defendant has moved diligently, within the time frames
established by the Court, to amend his affirmative defenses in response.

13.    Pursuant to Local rule 3.01(g), the undersigned counsel has conferred with
opposing  counsel for Plaintiff Schmidter and with pro se Plaintiff Heicklen concerning this
Motion. Attorney Sudbury objects to the Motion.  Plaintiff Heicklen replied asking for a
copy of the proposed answer, but then never provided the requested consent/objection.

 WHEREFORE, Defendant BELVIN PERRY. JR. respectfully renews his Motion for
Leave to file the proposed Amended Answer and Affirmative Defenses attached heet as
Exhibit "A."

MEMORANDUM OF LEGAL AUTHORITY

    The standard to be employed by a court in evaluating a party's motion for leave to
amend a pleading is determined by timing of the motion: whether the motion is filed
before or qfter the deadlin established by the Case Management and Scheduling Order.
When the motion is filed after the applicable deadline, the "good caus3" standard of Rule 16
governs the evalustion.  owever, when the motion is filed before the applicale deadline, as
in the instant case, the liberal standatd of Rule 15 applies.  Defendant respectfully submits the
more liberal standard should apply in this case, because the Court, pursuant to its April 2,
2013 Order, has allowed Defendant to file this renewed Motion.  Nevertheless, Defendant has
also shown good cause for the requested amendments.

    Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, a party may amend
its complaint only with the opposing party's written consent or by leave of Court, which
should be "freely give[n]" "when justice so requires."  FED. R. CIV.P. 15(A)(2). In fact, in
order for a court to deny a motion for leave to amend, there should be a "justifying reason."
Beheer B.V. v. ASAP Installations, LLC, 2010 WL 2431922, *1 (M.D.) Fla. June 16, 2010).
The United States supreme Court has stated:

In the absence of any apparent or declared reason – such as
undue delay, bad faith, or diatory motive on the oart of the
movamt, repeated failure to cure deficiencies by amendments
previously allowed, undue prejucie to the opposing party by
virtue of allowance of the amendment, futility of the
amendment, etc. – the leave sought should, as the rules require,
be 'freely given.'  Of course, the grant or denial of an
opportunity to amend is within the discretion of the District
Court, but outright refusal to grant the leave without any
justifying reason appearing for the denial is not an exercise of
discretion; it is merely of that discretion and inconsistent with
the spirit of the Federal rules.

Foman v. Davis, 371 U.S. 178,182, 83 S. CT. 227, 9 L.ED 2d 222 (1962).  Eleventh Circuit
decisions have echoed this sentiment by stating:

Leave to amend should be liberally granted when nedessary in
the interest of justice. Fed. R. Civ. P. 15(a). '[U]nless there is a
substantial reason to deny leave to amend, the discretion of the
district court is not broa enough o permit denial.'...

Burger King Corporation v. Weaver, 169 F.3d 1310, 1319 (11th Cir. (Fla.) 1999);
Power & Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir(Fla.) 1996).

    "In deciding whether to grant leave to amend a pleading the Court may consider
several factors 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 opposing party by virtue ofthe allowance of the amendment, and futility of the
amendment'" Bush v. Bahia Sun Associaes, Limeted Partnership, 2009 WL 963133, *4
(M.D. Fla. April 8, 2009).  None of these factors are present in this case; accordingly,
Defendant should be permitted to amend his Answer and Affirmative Defenses.

    First, there is no evidence of undue delay, bad faith, or dilatory motives by Defendnat.
As mentioned above, the circumstances which brought these potential defenses to
Defendant's attention occurred on December 21, 2012.  Defendant filed his initial Motion
For Leave To File Amended answer and Affirmative Defenses shortly thereafter and before
the court-imposed deadline for amendments.  More imporgtantly, in denying ghat Motion
without prejudice as being apparently "moot," the Court specifically granted Defendant the
right to file this renewed Motion by april 16, 2013 if any grounds for amendment
survived the Court's dismissal of Count II of the Complaint or Court's denial of Plaintiff
Heicklen's December 21, 2012 Motion.

    Second, there is no evidence of repeagted failures to cure deficiencies in prior
amendments.  In fact, the requested amendments will eliminate moot defenses which were
previously raised in connection with Count II, the dismissed claim.

    Third, there is no prejudice to Plaintiffs by permitting this amendment.  This lawsuit
is in the early stages of litigation.  No discovery has yet been conducted in the case.  Plaintiffs
have adequate time to conduct any factual discovery they may wish to conduct on the
proposed new defenses.  Te Case Management and Scheduling Order indicates thia case is
scheduled for trial in VFebruary 2014.  Moreover, denying this Motion would substantially
prejudice Defendant, as he would be deprived of the right to assert significant legal defenses
which could result in his absolute immunity to Plaintiff's claims.


    Finally,  the amendments are not futile, as they are supported by the United States
Constitution and by relevant case law.  for example, case law clearly provides judges, such as
Defendant, are entitled to absolute judicial immunity with respect to those actions they take
in their judicial capacity.  Bush v. Washington Mutual Bank, F. A. 177 Fed Appx. 16 (11th
Cir. 2006); Sloan v. McGrady, 2012 WL 266317, *3 (M/D. Fla. Jan. 30, 2012); Kennedy v.
Sakey, 20111 WL 5244680 (N.D. Fla. Sept. 30, 2011);¨Ronrt v. Foster 2006 WL 1980273
(M.D. Fla. July 12, 2006); Fuller v. Truncale, 50 So.3d 25,27 (Fla. 1st DCA 2010); Johnson
v. Harris, 645 So. 2d 96, 97 (Fla. 5th DCA 1994); Berry v. State, 400 So. 2d 80 (Fla. 4th DCA
1981).  Additionally, pusuant to the Eleventh Amendment to the United States Constitution,
a state circuit court judge cannot be held liable in his official capacity for damages based on
actions he took from the bench. See Simmons v. Conger, 86 F.3d 1080 (11th Cir. 1996)  See
also McBreatly v. Kojii
,  348 Fed. Appx. 437, 440 (11th Cir. 2009)(applying Eleventh
Amendment immunity to a Florida District Court of Appelas).  Eleventh Circuit case law also
supports Defendant's qualified defense.  See Gold v. City of Miami, 121 F.3d
1442, 1445 (11th Cir. 1997); Conner v. Halifax Hospital Medical Center, 135 F. Supp. 2d
1198, 1217 (M.D. Fla. 2001).  Defendant believes the evidence in this case will
unequivocally support one or all of these immunity defenses.

    Moreover, Defendant submits relevant case law supporting his assertion of the proposed
defenses concerning the recent Fifth District Court of appeal's decision.  the Fifth District
Court of Appeals recently rendered an opinion inPlaintiffs' respective appeals of the
underlying contempt actions and, in doing so, determined the identical constitutional issues
presented by Plaintiff's in this action,  even as to Count I of the Complaint.  Pursuant to the
Rooker-Feldman doctrine, federal district courts "have no authority to review the final
judgments of state courts. The doctrine extends not only to constitutional claims presented or
adjudicated by a state court, but also to claims that are 'inextrcably intertwined with a state
court judgment." Siegel v. LePorte, 234 F.3d 1163, 1172 (11th Cir. 2000); Lefebvre v.
Blackburn
, 2008 WL 2949474, *6 (N.D. Fla. July 29 2008). Comity or abstentions doctrines
may also permit the dismissal of this action given the Fifth district Court of Appeal's ruling
and Plaintiffs' possession of an adequate remedy at law (i..e., appellate review in the state
court with respect to Defendant's decision).  Finally, the full Faith and Credit Act, 28 U.S.C.
§1738, and he defenses of collateral estoppel and/or res judicata may be available given the
state appellate court's recent ruling.  At the very keast, Defendant respectively requests the
right to raise these defenses in an Amended Answer.

CONCLUSION

    Based on the foregoing, Defendant BELVIN PERRY, JR. respectively renews his
Motion fo Leave to file amended Answer and Affirmative Defenses, attached hereto as
Exhibit "A." (Heicklen's comment:  Exhibit A posted as a separate entry on Heicklen's web page.)

CERTIFICATE OF SERVICE

    I HEREBY CERTIFY that on April 15, 2013, I electronically filed the foregoing with
the Clerk of the Court by using the ECF system which will send a notice of electronic filing
to ADAM H. SUDBURY, ESQUIRE, Sudbury Law PL. 424 E. Central Boulevard, #307,
Orlando, Florida, 32801 at adam@sudburylaw.net and inbox@sudburylaw.net and Julian
Heicklen, 36 Rachel Immenu #2, Jerusalem, Israel 93228 at jph13@psu.edu.


s/John Edwin Fisher
JOHN EDWIN FISHER, ESQUIRE
Florida Bar No. 091677\
E-mail: jfisher@fisherlawfirm.com
JANIE BILLOTTE MOSES, ESQUIRE
Florida Bar No. 009237
E-mail: jmoses@fisherlawfirm.com
Fisher, rushmore, Werrerath,
Dickson, Talley & Dunlap, P. A.
390 North Orange Avenue, suite 2200
P. O. Box 712
Orlando, Florida 32802-9712
Telephone:   (407) 843-2111
Facsimile:    (407) 422-1080
Attorneys for Defendant