IN THE UNITED STATES DISTRICT
 COURT,  MIDDLE DISTRICT OF
FLORIDA, ORLANDO DIVISION

CASE #: 6:12-CV-1102-ORL-31-KRS

MARK E. SCHMIDTER, et al.,
Plaintiff(s),

v.

BELVIN PERRY, JR.,
Defendant(s).

RENEWED MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND TO DROP
CO-PLAINTIFF HEICKLEN AS A PARTY WITH SUPPORTING MEMORANDUM


COMES NOW the Plaintiff, MARK E. SCHMIDTER, by and through the undersigned attorney, and pursuant to Fed. R. Civ. P. 15(a)(2), the Amended Case Management and Scheduling Order (Doc. 27), Order dated January 22, 2013 (Doc. 22), and Local Rule 4.01, to move for leave to file an amended complaint in the above-captioned matter. As grounds therefor, the Plaintiff states:

I

 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

1.    This case is a declaratory judgment action which involves the question of the constitutionality of certain administrative actions taken by the Chief Judge of the Ninth Judicial Circuit, sitting in and for Orange County, Florida.

2.    Since the filing of the complaint, significant developments in the case have arisen such that an amended complaint is warranted, to-wit:

    a. The state court appeal of the Plaintiff’s contempt conviction resulted in a reversal of one of the two convictions at issue by the Fifth District Court of Appeal, and subsequent repeal of one of the two challenged administrative orders.  Accordingly, the Plaintiff agrees with the Defendant that a portion of the complaint filed in this Court has been rendered moot.

    b. The state court appeal of the Plaintiff’s contempt conviction resulted in an affirmance of one of the two convictions at issue by the Fifth District Court of Appeal on the second administrative order. Recognizing that collateral attack of a criminal conviction in federal court is generally available only by way of habeas corpus (as opposed to declaratory judgment), the undersigned believes that in this specific case such review would be justified and available.

3.    The undersigned attorney initiated this action on behalf of SCHMIDTER and HEICKLEN for the purpose of vindicating their constitutional rights, without regard to seeking monetary damages against any other person or party.

4.    In the state court appeal of the convictions, Plaintiff HEICKLEN’s convictions have been reversed on Faretta inquiry grounds.

5.    One count of Plaintiff SCHMIDTER’s conviction was upheld and is on appeal at the state supreme court.

6.    HEICKLEN proposes pursuing a Section 1983 action for actual exemplary and punitive damages against Judge Perry.

7.    SCHMIDTER is greatly prejudiced by these actions and other actions. Furthermore, HEICKLEN refuses to cooperate and insists that he will do whatever he wants. It is impossible to maintain a joint action.

8.    SCHMIDTER should not be punished for HEICKLEN’s actions in being required to commence a new proceeding, file a new case, pay a new filing fee (for the original filing fee was paid for by SCHMIDTER), and be required to re-serve process. SCHMIDTER’s day in court would be greatly delayed.

9.    In addition, HEICKLEN intends to remain in Israel and refuses to return to the United States, or to appear for re- trial before the Ninth Circuit Court.

10. Accordingly, Plaintiff SCHMIDTER requests that he be permitted to file an amended complaint, and that the Court either severs these Plaintiffs or drops HEICKLEN as a party, requiring him to file a new action on his intended Section 1983 complaint.

WHEREFORE, the Plaintiff, MARK E. SCHMIDTER, respectfully request that the Court grant the foregoing motion and grant the relief requested above.

II

 MEMORANDUM OF LAW IN SUPPORT THEREOF


 The court-imposed deadline for the filing of motions to
amend pleadings under the amended case management order (Dkt # 27) is January 18, 2013. Accordingly, this motion is timely filed. Motions to amend pleadings pursuant to Fed. R. Civ. P. 15(a)(2) should be liberally granted when justice so requires. Id. The Plaintiff has stated two specific grounds based on intervening facts which have occurred since the filing of the initial complaint which give rise to good cause for permitting an amended complaint. Burger King Corporation v. Weaver, 169 F.3d 1310 (11th Cir. 1999); Foman v. Davis, 371 U.S. 178, 182 (1999); See ASAP Installations, LLC, 2010 WL 2431922, *1 (M.D. Fla. 2010).



CERTIFICATE OF GOOD FAITH

I CERTIFY
that the undersigned has conferred with counsel
for the opposing party and represents that s/he: OBJECTS to the Court granting the relief requested herein.


SUDBURY LAW, PL
Dated: January 31, 2013
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Secondary: adam@sudburylaw.net
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By:/s/ ADAM H SUDBURY

ADAM H. SUDBURY
 Florida Bar No. 783951



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