Torts — Civil procedure — Pleadings — Amendments — Trial court did not abuse its discretion in denying plaintiff’s motion to amend complaint because amendments would have been futile where new negligence claims suffer same notice defects as prior claims, and plaintiff has no viable First Amendment claim because she was speaking as a government employee

JOHANNA BEANBLOSSOM, Appellant, v. BAY DISTRICT SCHOOLS, BAY COUNTY, FLORIDA, Appellee. 1st District. Case No. 1D17-0980. January 14, 2019. On appeal from the Circuit Court for Bay County. James B. Fensom, Judge. Counsel: Cecile M. Scoon of Peters & Scoon, Panama City, for Appellant. Heather K. Hudson and Dixon Ross McCloy, Jr., of Harrison, Sale, and McCloy, Panama City, for Appellee.

(PER CURIAM.) Johanna Beanblossom appeals the denial of her motion for leave to amend her complaint. Beanblossom argues that the trial court abused its discretion because she had never previously sought to amend her complaint, the case was still in the summary judgment stage, and the amendments were based upon similar facts. We find no abuse of discretion and affirm.

Over a year later, Bay District Schools filed a motion for summary judgment on Count I and, despite the response Beanblossom filed on the morning of the hearing almost a year later, the trial court granted the motion. Beanblossom does not assert any error as to Count I in this appeal.

Bay District Schools’ answer to Beanblossom’s complaint alleged as to Count II that Beanblossom failed to comply with section 768.28(6)(a), Florida Statutes, which requires notice to be provided to the State prior to bringing an action. Over two years later, Bay District Schools filed a motion for summary judgment on Count II on this basis. Beanblossom responded with plainly meritless arguments as the November 8, 2016, hearing date drew closer until November 7, at 11:34 p.m., when she filed a motion for leave to amend her complaint. This proposed amended complaint would add an additional defendant and assert four counts, including another negligence claim based on a different factual theory and a claim asserting a First Amendment violation. Bay District Schools objected.

After the November 8 hearing, the trial court entered an order granting Bay District Schools’ motion for summary judgment as to Count II. The order also denied Beanblossom’s motion for leave to amend the complaint, finding the following:

Plaintiff’s motion to amend comes three years into this litigation, after extensive discovery, and on the eve of a hearing for final summary judgment. This last minute request appears to be an attempt to circumvent summary judgment and escape the effects of failing to comply with section 768.28 despite being aware of the statute and having time to cure well within the statutory period. Moreover, the addition of a new defendant and the [Federal section] 1983 claim introduces new issues into the litigation. . . . Under these circumstances, the Court finds it appropriate to deny Plaintiff’s motion to amend.

After the trial court denied Beanblossom’s motion for rehearing, she filed this appeal.¹

Taking the last of these considerations first, we note that Beanblossom asserts that the additional claims she raised in the proposed amended complaint are not futile. We disagree. She asserted a new theory of negligence against Bay District Schools, but it suffers the same notice defect as her prior claim. And her First Amendment claim — that she was retaliated against for speaking as a citizen when making complaints to various school district personnel — is futile because she did not speak as a citizen. See Slay v. Hess, 621 Fed. Appx. 573, 576 (11th Cir. 2015) (quoting Boyce v. Andrew, 510 F. 3d 1333, 1343 (11th Cir. 2007)) (“In complaining to her superiors at work about how time was allotted, she was speaking as an employee, and when a government employee speaks as an employee ‘there can be no First Amendment issue, and the constitutional inquiry ends.’ ”). Because the proposed amendments would have been futile, the trial court did not abuse its discretion in disallowing the amendments.²

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¹Beanblossom also appeals the order granting summary judgment in favor of Bay District Schools on Count II. We find no error in this order.

²Because we find that the proposed amendments would have been futile, we need not address whether they would have caused prejudice to the opposing party or whether they constituted abuse.