Carlos Alonso, et al v. Dr. Gladys Alonso

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10607
Non-Argument Calendar
____________________
CARLOS ALONSO,
as an individual,
FE MOREJON,
Plaintiffs-Appellants,
versus
DR. GLADYS Y. ALONSO,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 22-10607
D.C. Docket No. 1:18-cv-23668-RNS
____________________
Before R OSENBAUM , JILL PRYOR , and G RANT, Circuit Judges.
PER CURIAM:
Carlos Alonso and Fe Morejon appeal the dismissal of the
second amended complaint they filed on behalf of their disabled
son Angie, alleging violations of the Americans with Disabilities
Act and the Rehabilitation Act. The defendant below, Dr. Gladys
Alonso, has moved to dismiss the appeal for lack of standing and as
frivolous.
I.
Carlos Alonso filed a pro se complaint against Dr. Gladys
Alonso in September 2018, alleging that Gladys1 discriminated
against Carlos’s disabled son, Angie, in violation of the Americans
with Disabilities Act and the Rehabilitation Act, and retaliated
against Angie and Carlos when Carlos complained about the dis-
crimination.
Gladys’s office manager accepted service of the complaint
and summons in early November 2018. Gladys failed to file an an-
swer to the complaint within the time allowed, and at Carlos’s re-
quest, the clerk entered a default against her. In January 2019,
1 Because Plaintiff-Appellant Carlos Alonso and Defendant-Appellee Dr.
Gladys Alonso share the same last name, we use their first names to avoid
confusion.
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22-10607 Opinion of the Court 3
Gladys appeared through counsel and requested a vacatur of the
clerk’s default. She explained that her office manager had put the
summons and complaint with the routine office correspondence,
which she habitually reviewed only once per month. Gladys main-
tained that her infrequent review of office mail, along with a busy
flu season and minimal office staffing, delayed her discovery of the
summons and complaint and forwarding of the papers to her attor-
ney. The district court found that good cause existed to vacate the
default and granted Gladys’s motion over Carlos’s objection.
About two weeks later, attorney Michael Lutfy filed a notice
of appearance on Carlos’s behalf. Lutfy represented Carlos and his
family for almost a year. During that time, he filed two amended
complaints. The second amended complaint alleged several ADA
and RA claims brought by Carlos on Angie’s behalf as his legal
guardian, as well as a state claim brought by Carlos and his wife (Fe
Morejon, Angie’s mother) for their own emotional-distress inju-
ries. On the defendant’s motion, however, the district court dis-
missed the second amended complaint in part—including the claim
brought by Carlos and Morejon individually—leaving only Angie’s
claims for discrimination and retaliation under the ADA and RA.
In November 2019, Lutfy filed a motion to withdraw as
counsel for the plaintiffs, citing “irreconcilable differences” be-
tween him and his clients. The magistrate judge granted the mo-
tion to withdraw, and Carlos continued to litigate his son’s claims
without counsel for several months. Eventually, the magistrate
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4 Opinion of the Court 22-10607
judge informed the plaintiffs that they could not proceed on An-
gie’s behalf without an attorney.
During the following 18 months of litigation, two more at-
torneys appeared on Angie’s behalf. Attorney Justin Infurna filed a
notice of appearance in September 2020, but his law license was
suspended less than four months later. Attorney Carmelo Palo-
mino filed a notice of appearance in April 2021, but in January of
the following year—about two weeks before the scheduled trial
date—Palomino too filed a motion to withdraw as counsel for the
plaintiffs. In his motion, Palomino represented that there had been
“a total breakdown” in communication between him and his cli-
ents, so that they were unable to discuss the case without his clients
“shouting, yelling and screaming” at him and “disrespecting, of-
fending and/or insulting” his “intelligence, competence and mere
ability to do perform [sic] his services in the instant cause.”
The district court granted Palomino’s motion to withdraw
and removed the case from the upcoming trial calendar. The court
reminded Carlos and Morejon that they could not proceed without
an attorney because their individual claims had been dismissed and
they could not proceed pro se on behalf of their son. It instructed
them to retain new counsel for Angie within 18 days, and it warned
them that the failure to retain counsel by the deadline would result
in dismissal of the case.
Carlos and Morejon did not retain counsel by the district
court’s deadline. They filed a motion for extension of time to find
a new lawyer, stating that they had contacted several firms and at
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22-10607 Opinion of the Court 5
least one pro bono program but had not yet found an attorney with
experience bringing ADA claims who was willing to take the case.
Carlos and Morejon also filed a motion to amend the com-
plaint a third time. In the proposed third amended complaint, the
plaintiffs added new claims by Carlos and Morejon individually, al-
leging that Gladys discriminated against them based on their asso-
ciation with Angie and seeking damages for lost wages and emo-
tional distress as well as punitive damages and unspecified injunc-
tive relief. The third amended complaint also proposed to add
what appeared to be medical negligence claims based on Gladys’s
failure to refer Angie to medical specialists.
The district court denied the motion for an extension of time
to retain legal counsel, denied the motion to file a third amended
complaint, and dismissed the action. The court explained that the
plaintiffs had had multiple opportunities to obtain counsel but had
nonetheless been without counsel for almost half of the litigation.
And based on two of their attorneys’ motions to withdraw, the
court concluded that the plaintiffs were uncooperative and disre-
spectful to their attorneys when they were represented by counsel.
Regarding the plaintiffs’ motion to amend their complaint, the dis-
trict court concluded that the plaintiffs had not shown good cause
for amending their complaint more than two years after the dead-
line to do so had passed.
The plaintiffs moved for reconsideration of the dismissal or-
der, arguing that they had always been cooperative and respectful
toward their attorneys, and that any problems had been caused by
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6 Opinion of the Court 22-10607
their attorneys’ incompetence, dishonest and unprofessional con-
duct, or lack of diligence. They also argued that Carlos should be
permitted to represent Angie without an attorney.
The district court denied the motion for reconsideration,
and this appeal followed.
II.
We first consider the defendant’s motion to dismiss the ap-
peal. To the extent that Gladys argues that Carlos and Morejon
lack Article III standing to appeal, we disagree. Carlos and Morejon
challenge two rulings by the district court that were adverse to
them individually and that were incorporated into the final judg-
ment: the court’s order vacating the default entered by the clerk
against Gladys on the initial complaint (which was brought by Car-
los individually), and its denial of Carlos and Morejon’s motion to
amend the complaint and add new claims of their own. They are
thus “adverse to part of the final judgment, which is enough to es-
tablish appellate standing.”
Corley v. Long-Lewis, Inc., 965 F.3d
1222, 1234 (11th Cir. 2020).
But as a procedural matter, this Court has held—and the dis-
trict court repeatedly explained to Carlos and Morejon—that a liti-
gant who is not an attorney cannot act as legal counsel for anyone
but himself in federal court.
See Devine v. Indian River Cnty. Sch.
Bd., 121 F.3d 576, 581 (11th Cir. 1997),
overruled in part on other
grounds by Winkelman ex rel. Winkelman v. Parma City Sch.
Dist., 550 U.S. 516, 535 (2007). Accordingly, we grant Gladys’s
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22-10607 Opinion of the Court 7
motion in part and dismiss the appeal to the extent that Carlos and
Morejon attempt to act as pro se legal counsel for Angie on appeal.
We therefore decline to consider their arguments that the district
court abused its discretion in denying the motion for an extension
of time to find an attorney for Angie, and in dismissing Angie’s re-
maining claims in the second amended complaint.
In her motion, Gladys also argues that the appeal should be
dismissed as frivolous. The appeal is subject to review for frivo-
lousness under 28 U.S.C. § 1915 because the appellants were given
leave to appeal without prepayment of the filing fees.
See 28 U.S.C.
§ 1915(e)(2)(B)(i). An appeal is frivolous if the claims raised lack
even arguable merit.
Jones v. Ray, 279 F.3d 944, 946 (11th Cir.
2001);
see Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is
not completely without merit if it has sufficient foundation to de-
serve “careful attention and review.”
Busby v. City of Orlando, 931
F.2d 764, 787 (11th Cir. 1991) (evaluating standard for awarding at-
torney’s fees).
As discussed further below, we conclude that the district
court did not abuse its discretion in vacating the clerk’s entry of
default against Gladys or in denying the plaintiffs’ motion to file a
third amended complaint. But because the arguments raised on
appeal have sufficient substance to warrant careful review, we
deny the motion to dismiss the appeal as frivolous.
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8 Opinion of the Court 22-10607
III.
A.
The plaintiffs first argue that the district court erred by
granting the defendant’s motion to set aside the clerk’s entry of de-
fault. We review this ruling for abuse of discretion.
See EEOC v.
Mike Smith Pontiac GMC, Inc., 896 F.2d 524, 528 (11th Cir. 1990).
Rule 55 of the Federal Rules of Civil Procedure provides that
a district court may set aside a clerk’s entry of default for “good
cause.” Fed. R. Civ. P. 55(c). The “good cause” standard is flexible
and may encompass a variety of factors depending on the circum-
stances.
Compania Interamericana Exp.-Imp., S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996). Such
factors include “whether the default was culpable or willful,
whether setting it aside would prejudice the adversary, and
whether the defaulting party presents a meritorious defense.”
Id.
“Good cause” is a liberal standard—more forgiving than the “ex-
cusable neglect” standard for setting aside a default judgment un-
der Rule 60(b)—“but not so elastic as to be devoid of substance.”
Id.;
Mike Smith Pontiac GMC, Inc., 896 F.2d at 528.
The plaintiffs challenge the district court’s finding of good
cause, arguing that because the “receptionist” who accepted ser-
vice of the complaint and summons was actually Gladys’s son and
office manager, she must have known about the suit immediately
and simply chosen to ignore it. Although the plaintiffs’ skepticism
is understandable, the district court’s decision to credit Gladys’s
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22-10607 Opinion of the Court 9
sworn testimony attributing the delay to simple negligence or mis-
take was not unreasonable. Carlos—the only plaintiff named in the
complaint at the time—was not prejudiced by the delay of approx-
imately six weeks, especially considering that he himself had a
pending request to stay the proceedings while he tried to find a
lawyer to represent him. And in her motion to vacate the default,
Gladys presented two potentially meritorious defenses by arguing
that the periodic home visits she made were a sufficient accommo-
dation for Angie, and that some of Carlos’s claims were actually
medical malpractice claims for which he had not satisfied the stat-
utory prerequisites. The district court did not abuse its discretion
by vacating the clerk’s default.
B.
Next, the plaintiffs contend that the district court abused its
discretion by denying their request for leave to amend their com-
plaint for a third time.
See Oravec v. Sunny Isles Luxury Ventures,
L.C., 527 F.3d 1218, 1231 (11th Cir. 2008) (reviewing ruling on a
motion to amend for abuse of discretion). We do not agree. Once
the district court has entered a scheduling order setting a deadline
to amend the pleadings, the schedule “may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
“This good cause standard precludes modification unless the sched-
ule cannot be met despite the diligence of the party seeking the ex-
tension.”
Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir.
1998) (quotation omitted).
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10 Opinion of the Court 22-10607
The plaintiffs failed to show good cause to modify the sched-
uling-order deadline to amend the pleadings. They were fully
aware of their individual claims and could have added them to any
of their three prior complaints. And even if the missed-diagnosis
claim could be considered a new claim of discrimination under the
ADA or the RA (a doubtful proposition that we assume only for
the sake of argument), the plaintiffs did not explain why they
waited more than two years after the condition was diagnosed to
request leave to amend the complaint and add the claim. The dis-
trict court did not abuse its discretion in denying the motion to
amend.
IV.
Plaintiffs Carlos Alonso and Fe Morejon have standing to
challenge the district court’s rulings that were adverse to them, and
the issues they raise on appeal are not frivolous. We therefore
DENY Dr. Gladys Alonso’s motion to dismiss to the extent that it
seeks to dismiss the appeal for lack of standing and as frivolous. We
GRANT the motion to dismiss to the extent that Carlos and More-
jon attempt to proceed on appeal without an attorney on behalf of
their disabled son.
As to the remaining issues, we conclude that the district
court did not abuse its discretion in granting the defendant’s mo-
tion to vacate the clerk’s entry of default, or in denying the plain-
tiffs’ motion to amend their complaint a third time. We therefore
affirm.
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22-10607 Opinion of the Court 11
AFFIRMED.
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