The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
Before the Court are Defendants Illinois State Board of Education ("ISBE") and Chris Koch's ("Koch") Motion to Dismiss Plaintiff's Third Amended Complaint and Memorandum in Support (Docs. 69 & 70) and Defendant Midland School District No. 7's ("School District") Motion to Dismiss Counts IV, V, and VI and to Strike Portions of Plaintiff's Third Amended Complaint and Memorandum in Support (Docs. 73 & 74). Plaintiff did not respond to these motions, but instead filed a Fourth Amended Complaint (Doc. 77), to which Defendant School District filed a Motion to Strike (Doc. 78), which Motion to Strike Defendants ISBE and Koch sought to adopt (Doc. 79). Finally, Plaintiff filed a Motion for Leave to File her Fourth Amended Complaint (Doc. 80). For the reasons discussed below, Plaintiff's Motion for Leave to File is DENIED, Defendant ISBE and Koch's Motion to Adopt Defendant School District's Motion to Strike is GRANTED, Defendant School District's Motion to Strike is GRANTED, Plaintiff's Fourth Amended Complaint is STRICKEN, Defendants ISBE and Koch's Motion to Dismiss is GRANTED, and Defendant School District's Motion to Dismiss Counts IV, V, and VI and to Strike Portions of Plaintiff's Third Amended Complaint is GRANTED. The Court will first discuss why Plaintiff's Fourth Amended Complaint is stricken, and then analyze Defendants' substantive motions.
PLAINTIFF'S FOURTH AMENDED COMPLAINT
Plaintiff filed her original Complaint in this matter on November 23, 2009. (Doc. 1). On May 10, 2010, she filed her First Amended Complaint (Doc. 12). On May 18, Defendants Illinois State Board of Education ("ISBE") and Chris Koch ("Koch") filed a Motion to Dismiss (Doc. 23); on May 27, Defendant Midland School District 7 ("School District") filed an Answer to the First Amended Complaint, a Motion to Dismiss Counts IV and V of the First Amended Complaint, and a Motion to Strike Portions of the First Amended Complaint (Docs. 26, 27, & 29). In response, on June 4, 2010, Plaintiff filed a Motion for Leave to File a Second Amended Complaint (Doc. 31), which was granted on June 7. (Text Order of 6/7/2010). Pursuant to Local Rule 7.1(E), the filing of the Second Amended Complaint rendered Defendants' Motions to Dismiss and Strike moot.
On June 18, Defendants ISBE and Koch once again filed a Motion to Dismiss (Doc. 35); on June 21, Defendant School District filed an Answer and Motion to Dismiss Counts IV and V of the Second Amended Complaint (Docs. 38 & 39). Plaintiff sought several extensions of time to respond to these motions, which were granted, before moving for Leave to File a Third Amended Complaint on July 19, 2010. (Doc. 44). This Motion was granted on July 20, whereupon Plaintiff filed her Third Amended Complaint. (Text Order of 7/20/2010; Doc. 45). Defendants' Motions to Dismiss were once again rendered moot pursuant to Local Rule 7.1(E). (Text Order of 7/26/2010).
On August 24, 2010, Defendants ISBE and Koch filed a Motion to Dismiss Plaintiff's Third Amended Complaint (Doc. 69), their third such motion. Likewise, on August 26, 2010, Defendant School District filed its third round of responses with an Answer to Plaintiff's Amended Complaint, and a Motion to Dismiss Counts IV, V, and VI and Strike Portions of Plaintiff's Third Amended Complaint. (Docs. 72 and 73). On September 9, Plaintiff sought an extension of time to file a response to these motions, and was given until September 20 to respond. (Text Orders of 9/8/2010). On September 20, 2010, rather than filing a Response to Defendants' Motions to Dismiss, Plaintiff filed its Fourth Amended Complaint. (Doc. 77).
According to Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a matter of right, and "in all other cases only with opposing party's written consent or the court's leave." (emphasis added). Pursuant to the Rule, the Seventh Circuit has held that "filing an amendment to a complaint without seeking leave of court or written consent of the parties is a nullity." Geitz v. Lane, 946 F.2d 897 (7th Cir. 1991); Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir. 1985). Here, Plaintiff, prior to filing her Fourth Amended Complaint, did not seek leave of this Court to file another amended pleading, nor did she indicate that Defendants had consented thereto.
In her later filed Motion for Leave to File, Plaintiff seeks to be excused for not seeking the Court's leave before filing her Fourth Amended Complaint. (Doc. 80). However, the Court does not believe that leave to amend is warranted. While Rule 15 states that the Court should "freely give leave when justice so requires," the Supreme Court has held that leave may properly be denied for "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 . . . futlility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962).
Here, Plaintiff has already amended once as of right and been given leave to amend two more times, despite the fact that the Defendants have each time fully briefed answers and motions to dismiss. The Seventh Circuit has held that such repeated re-filing of amended complaints in the face of a defendant's motions to dismiss constitutes sufficient prejudice to deny leave. See Wade v. Hopper, 993 F.2d 1246 (7th Cir. 1993). Further, as purported by the Plaintiffs in their Third Amended Complaint, "this suit arises from the efforts of the parents of T.G., Mr. & Mrs. T.G. . . . to enforce their rights to a free, appropriate public education for T.G," to "enforce implementation" of an administrative decision regarding her educational needs, and to review whether that decision was entirely accurate. (Doc. 45 at 1-3). T.G. is currently 18 years old and is attending the 12th grade. (Doc. 45 at 5). If this Court's determination of this matter is to have any practical impact upon the educational needs of T.G., it must get past the initial pleading stage and to the merits of the administrative decision and implementation. If the Court were to once again grant leave to amend, it would require greater delay and the Court may not reach the merits of this case until T.G. has finished her public education, rendering it moot.*fn1 Thus the Court also finds that granting leave to re-amend would cause undue delay.*fn2
For the foregoing reasons, Defendant School District's Motion to Strike Plaintiff's Fourth Amended Complaint and Defendant ISBE and Koch's Motion to Adopt said Motion (Docs. 78 & 79) are GRANTED, Plaintiff's Motion for Leave to File Fourth Amended Complaint (Doc. 80) is DENIED and Plaintiff's Fourth Amended Complaint (Doc. 77) is STRICKEN. The Court also notes that accordingly, Plaintiff's time to respond to Defendants' Motions to Dismiss expired without any Response from Plaintiff. According to Local Rule 7.1(B)(2), "if no response is timely filed, the presiding judge will presume there is no opposition to the motion and may rule without further notice to the parties." Thus, the Court must now rule on Defendants' Unopposed Motions to Dismiss.
Plaintiff is a minor disabled student within Defendant School District. On October 16, 2007, Plaintiff filed a due process complaint with the ISBE pursuant to the Individuals with Disabilities Education Act as amended ("IDEA"), 20 U.S.C. § 1401 et. seq., and its accompanying regulations. (Doc. 45 at 14). The complaint alleged that Plaintiff was not receiving a free, appropriate public education ("FAPE"), and that the School District had discriminated against Plaintiff for the advocacy efforts of her family. (Doc. 45 at 14). On February 4, 2008, School District filed its own due process complaint, which was consolidated with Plaintiff's original complaint. (Doc. 45 at 15). On June 11, 2008, ISBE appointed Kristine L. Anderson as the Impartial Hearing Officer ("IHO") for this case, she was the third IHO appointed. (Doc. 45 at 14). A five day hearing was held in May and June of 2009, and the IHO issued her Final Order on July 25, 2009. (Doc. 45 at 15).
In her Third Amended Complaint, Plaintiff brings six counts against three Defendants, Koch (in his individual capacity and official capacity as superintendent of the ISBE), ISBE, and School District. The first three counts of Plaintiff's Complaint relate to the Final Order of the IHO. In Count I, Plaintiff brings an action pursuant to 42 U.S.C. § 1983, alleging that ISBE and/or Koch deprived Plaintiff of her rights pursuant to the Fifth and Fourteenth Amendments to the U.S. Constitution, IDEA, and other federal statutes, as well as the Illinois Constitution and statutes by failing to enforce the Final Order of the IHO. (Doc. 45 at 22-24). Plaintiff seeks, inter alia, a permanent injunction ordering ISBE to require full compliance with the IHO's Final Order where it found in Plaintiff's favor. In Count II, Plaintiff seeks partial review of the final administrative decision issued by the IHO; in Count III she seeks attorney's fees pursuant to IDEA. (Doc. 45 at 25-32).
The final three counts of Plaintiff's Complaint deal with alleged discrimination and retaliation against Plaintiff by the School District. Count IV alleges Disability Discrimination, Count V alleges retaliation for disability rights advocacy, and Count IV alleges the deprivation of Plaintiff's right to free speech via the School Districts retaliatory actions. (Doc. 45 at 32-37). As discussed above, ...