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.,
BELVIN PERRY, JR.,
FOR LEAVE TO FILE AMENDED COMPLAINT AND TO DROP
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:
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.
MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
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
6. HEICKLEN proposes pursuing a Section
1983 action for actual exemplary and punitive damages against Judge
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
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.
Plaintiff, MARK E. SCHMIDTER, respectfully request that the Court grant
the foregoing motion and grant the relief requested above.
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.
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.
Dated: January 31, 2013
424 E Central Blvd # 307
E-Mail Service Instructions:
Orlando, FL 32801-1923
P: (407) 395-4111
F: (407) 395-4023
By:/s/ ADAM H SUDBURY
ADAM H. SUDBURY
Florida Bar No. 783951
T: (407) 395-4111
F: (407) 395-4023 firstname.lastname@example.org