Limited Leave to Amend After Discovery and the Evidentiary Bar for FHA Disparate-Treatment and Hostile-Housing Claims

I. Introduction

Kanayo Derhem v. Bay House Miami Condominium Association (11th Cir. Aug. 7, 2026) is an unpublished per curiam affirmance arising from a condominium dispute reframed as federal housing-discrimination litigation. Kanayo Derhem, a Black transgender woman, sued the Bay House Miami Condominium Association and various association officials and agents, alleging intentional discrimination and a hostile living environment under the Fair Housing Act (“FHA”), plus state-law claims. The Association, by contrast, contended it acted for non-discriminatory reasons: repeated rule violations (e.g., unregistered visitors, short-term rentals, key fob issues, pets, and interference with security measures), followed by fines and amenity suspensions authorized by governing documents.

On appeal (pro se), Derhem challenged (1) the district court’s decision to strike new allegations included beyond the limited leave to amend, (2) summary judgment on the FHA claims, (3) compliance with Federal Rule of Civil Procedure 58(a), and (4) several arguments raised for the first time on appeal. The Eleventh Circuit affirmed across the board.

II. Summary of the Opinion

  • Striking allegations / limiting amendment: The court held the district court acted within its inherent authority and discretion when it struck new factual allegations that exceeded the limited leave to amend—especially where the allegations were known earlier and discovery had already closed.
  • FHA disparate treatment: The panel concluded Derhem did not present sufficient direct or circumstantial evidence that the Association’s enforcement actions were taken “because of” race or sex under 42 U.S.C. § 3604(b).
  • FHA hostile living environment: The alleged incidents—including an alleged single racial epithet—were not “severe or pervasive” enough to interfere with housing enjoyment.
  • Rule 58(a): The district court entered a separate judgment document; Rule 58(a) was satisfied.
  • New issues on appeal / bias: New arguments were not considered; judicial bias could not be shown by adverse rulings alone.

III. Analysis

A. Precedents Cited

The opinion is best understood as an application of established Eleventh Circuit procedural and employment-discrimination analogs to the FHA rather than as an expansion of doctrine. The court relied on the following authorities:

1. Appellate standards of review

  • United States ex rel Sedona Partners LLC v. Able Moving & Storage Inc., 146 F.4th 1032 (11th Cir. 2025): Cited for the proposition that decisions invoking a court’s inherent power to strike pleadings are reviewed for abuse of discretion, and that courts may strike pleadings to enforce orders and ensure prompt disposition.
  • McCreight v. AuburnBank, 117 F.4th 1322 (11th Cir. 2024): Cited for de novo review of summary judgment, viewing evidence and reasonable inferences in the nonmovant’s favor.

2. Amendment limits, prejudice, and pro se briefing

  • Campbell v. Emory Clinic, 166 F.3d 1157 (11th Cir. 1999): Used to underscore the district court’s “extensive discretion” to disallow amendments that would unduly prejudice the opposing party—an especially salient factor once discovery is closed.
  • Carmichael v. United States, 966 F.3d 1250 (11th Cir. 2020): Reinforces liberal construction of pro se filings, but not exemption from procedural rules or evidentiary burdens.
  • Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008): Establishes that issues not briefed on appeal—even by pro se litigants—are deemed abandoned; the panel applied this to Derhem’s non-FHA counts.

3. FHA liability frameworks via Title VII analogs

  • Fox v. Gaines, 4 F.4th 1293 (11th Cir. 2021): The doctrinal bridge: FHA discrimination claims are evaluated by looking to Title VII case law because the statutory language is “virtually identical.” Fox also supplies the “severe or pervasive” formulation for hostile housing environment claims.
  • Tynes v. Fla. Dep't of Juv. Just., 88 F.4th 939 (11th Cir. 2023): Cited for the modes of proof (direct, circumstantial, or both) and to reinforce that insufficient evidence of discriminatory causation warrants summary judgment.
  • Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale, 46 F.4th 1268 (11th Cir. 2022): Provides the definition of “direct evidence” as proof without inference or presumption.
  • Harris v. Pub. Health Tr. of Miami-Dade Cnty., 82 F.4th 1296 (11th Cir. 2023): Two key constraints on direct evidence: (i) non-decisionmaker remarks, or remarks unrelated to the decisionmaking process, are not direct evidence; and (ii) only the “most blatant” discriminatory remarks qualify as direct evidence.
  • Smelter v. S. Home Care Servs. Inc., 904 F.3d 1276 (11th Cir. 2018): Referenced alongside Fox for the “severe or pervasive” hostile-environment standard (imported from Title VII doctrine).
  • Tonkyro v. Sec'y, Dep't of Veterans Affs., 995 F.3d 828 (11th Cir. 2021): Used for the proposition that a single epithet—though reprehensible—does not necessarily establish a hostile environment claim, absent severity/pervasiveness sufficient to alter conditions of housing enjoyment.

4. Issue preservation and judicial bias

  • Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324 (11th Cir. 2004): Applied to refuse consideration of arguments not raised below (and one raised for the first time in the reply brief).
  • Hamm v. Members of Bd. of Regents of Fla., 708 F.2d 647 (11th Cir. 1983): Confirms adverse rulings alone cannot establish judicial bias; the panel used this to dispose of Derhem’s bias contention.

B. Legal Reasoning

1. Striking allegations that exceeded limited leave to amend

The district court had granted leave to amend for a narrow purpose (correct a name and add Koosej as an indispensable party). The second amended complaint went further by adding new factual allegations that shifted theories of liability. Two facts carried the day:

  1. Timing and knowledge: The new allegations were known when the case began.
  2. Closed discovery and prejudice: Discovery had already closed, so newly expanded factual and liability theories would require re-opening discovery or forcing defendants to litigate new claims without fair opportunity to develop rebuttal evidence.

Framed through United States ex rel Sedona Partners LLC v. Able Moving & Storage Inc. (inherent power to enforce orders) and Campbell v. Emory Clinic (prejudice-based discretion), the court treated this as case-management and fairness, not as a merits determination.

2. FHA disparate treatment: direct vs. circumstantial proof

The panel reaffirmed the now-routine Eleventh Circuit approach of analyzing FHA disparate-treatment claims through Title VII methods (Fox v. Gaines), including direct evidence, McDonnell Douglas, and the “convincing mosaic” framework.

Direct evidence: Derhem relied primarily on an alleged post-grievance-meeting comment by the board president referring to her as a “monkey.” The court did not excuse the content; it treated the statement as “undoubtedly repugnant, if true.” But it held the comment did not qualify as direct evidence because:

  • Under Harris v. Pub. Health Tr. of Miami-Dade Cnty., remarks by non-decisionmakers or remarks not tied to the decisionmaking process are not direct evidence.
  • Brumsted lacked “the final say” on fines and the decisionmaking process was not “actively ongoing” when the remark was made.

The court similarly rejected a “family-oriented”/children remark as direct evidence because it required inference about gender identity—again invoking Harris and the strict “no inference” notion from Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale.

Circumstantial evidence: The defendants produced “ample evidence” of repeated rule violations and evidence that other residents were also fined for violations. The panel accepted this as a legitimate, non-discriminatory explanation for enforcement actions and held Derhem lacked sufficient evidence that the explanation was pretext for discrimination. Particularly damaging to Derhem’s comparator theory was record evidence that:

  • Other residents who “split their unit” did so through rental agreements with the Association; Derhem did not.
  • Occupancy approval timing was similar to other applications.
  • Amenity suspensions followed unpaid fines pursuant to governing documents.

In effect, the opinion reflects a causation-centered evidentiary demand: even if offensive remarks exist, plaintiffs still must tie adverse housing actions to protected characteristics with enough admissible evidence to allow a reasonable jury to find discriminatory “because of” causation.

3. FHA hostile living environment: the “severe or pervasive” threshold

For hostile housing environment, the court applied the Title VII-derived standard stated in Fox v. Gaines (and referenced Smelter v. S. Home Care Servs. Inc.): harassment must be “sufficiently severe or pervasive” to interfere with or deprive the plaintiff of the right to use or enjoy the home. The panel concluded the record—centered on the alleged “monkey” remark and other comments—did not meet that threshold, relying in part on Tonkyro v. Sec'y, Dep't of Veterans Affs. for the proposition that a single epithet, without more, generally does not establish a hostile environment.

4. Rule 58(a), preservation, and bias

The court rejected a technical Rule 58(a) challenge because the district court entered a separate judgment document; Rule 58 does not require the judgment to itemize which claims were dismissed versus resolved on summary judgment. The court also refused to consider new arguments under Access Now, Inc. v. Sw. Airlines Co., and rejected judicial-bias allegations under Hamm v. Members of Bd. of Regents of Fla., holding that “disproportionate” adverse rulings are not evidence of bias.

C. Impact

Although unpublished, the opinion meaningfully consolidates several practical lessons for FHA litigation—particularly disputes against condominium associations:

  • Procedural discipline matters: Courts will enforce limited leave to amend and may strike late-added allegations, especially after discovery closes. This incentivizes plaintiffs to plead complete factual theories early and to comply with amendment orders.
  • Offensive remarks are not automatically “direct evidence”: Even an explicitly racial epithet may not qualify as direct evidence absent a tight nexus to the adverse decision and a relevant decisionmaker role (as framed by Harris v. Pub. Health Tr. of Miami-Dade Cnty.).
  • HOA/condo enforcement is defensible when documented and consistent: Where the record shows repeated rule violations, authorization under governing documents, and comparable enforcement against other residents, plaintiffs face a steep burden to prove discriminatory causation or pretext at summary judgment.
  • Hostile housing claims require substantial interference: The “severe or pervasive” standard remains a high bar; episodic or isolated incidents may be morally serious yet still legally insufficient without a showing of pervasive conduct or severe interference with housing enjoyment.
  • Appellate preservation is essential: Arguments not raised below (or raised only in a reply brief) are typically forfeited, limiting appellate courts to reviewing the record and theories actually litigated.

IV. Complex Concepts Simplified

  • “Direct evidence” of discrimination: Evidence that, by itself, shows discriminatory intent without needing the judge or jury to infer motive (e.g., “I am fining you because of your race,” said by the decisionmaker at the time of the decision). Remarks requiring context or inference often become circumstantial, not direct.
  • “Circumstantial evidence” and “pretext”: Indirect proof (patterns, comparators, shifting explanations, inconsistent enforcement) used to argue the stated reason (rule violations) is not the true reason. If the defendant’s explanation is supported by records and similarly applied to others, showing pretext becomes harder.
  • “McDonnell Douglas” and “convincing mosaic”: Two common ways to organize circumstantial evidence. The first uses burden-shifting steps; the second asks whether the totality of evidence forms a coherent picture of discrimination. Either way, the evidence must be strong enough for a reasonable jury to find discriminatory causation.
  • “Hostile housing environment” / “severe or pervasive”: Not every offensive act is legally actionable. The conduct must be so intense or frequent that it materially interferes with using or enjoying the home.
  • Rule 58(a) “separate judgment”: A technical requirement that final judgment be entered as a distinct document, helping clarify when the time to appeal begins. It need not include detailed explanations—that belongs in the accompanying order.

V. Conclusion

Kanayo Derhem v. Bay House Miami Condominium Association affirms three core points: (1) district courts may strictly enforce limited leave to amend—striking late-added allegations that expand theories after discovery—where prejudice would result; (2) FHA disparate-treatment and hostile-housing claims, evaluated through Title VII analogs, require evidence that ties adverse housing actions to protected characteristics strongly enough to survive summary judgment; and (3) appellate relief is constrained by preservation rules and cannot rest on dissatisfaction with adverse rulings alone. The decision’s broader significance lies in its disciplined separation of offensive conduct from legally sufficient proof of discriminatory causation and actionable interference with housing rights.