Ivy v. Bullock County Board of Education
OPINION. Signed by Honorable Judge Myron H. Thompson on 8/12/2011. (jg, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
BULLOCK COUNTY BOARD OF
CIVIL ACTION NO.
This case is currently before the court on plaintiff
defendant Bullock County Board of Education’s motion for
judgment on the pleadings.
For the reasons that follow,
Ivy’s motion will be denied, and the school board’s
motion will be granted.
Ivy filed this lawsuit on June 14, 2010, alleging
that his employer, the Bullock County Board of Education,
retaliated against him in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 1981a,
2000e to 2000e–17.
On March 18, 2011, the school board
filed a motion for judgment on the pleadings, stating
retaliation claim because he had not shown that he had
engaged in any statutorily protected activity.
Ivy filed a brief in opposition to the school board’s
motion for judgment on the pleadings, as well as a motion
Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§§ 621-634, but asked that he now be allowed to do so.
He states that he has a valid ADEA claim because he was
60 years old when the school board hired someone much
younger and less experienced than he as the head football
The school board opposes Ivy’s motion to amend,
deadline for amended pleadings in this case was October
See Scheduling Order (Doc. No. 12).
board argues that allowing Ivy to amend his complaint at
this late date would unduly prejudice it because the
jurisdiction and different theories of liability” than
did the original complaint.
Resp. at 5 (Doc. No. 30).
MOTION TO AMEND COMPLAINT
In his motion to amend, Ivy focuses on Federal Rule
of Civil Procedure 15, which states that, “The court
should freely give leave [to amend] when justice so
Fed. R. Civ. P. 15(a)(2).
However, when a
party seeks leave to amend after the scheduling-order
deadline, Rule 15 no longer controls; instead, the court
should be guided by Rule 16, which states that, “A
schedule may be modified only for good cause and with the
Fed. R. Civ. P. 16(b)(4).
when a party seeks leave to amend out of time, he must
show good cause for the late request.
Collier County, 394 Fed. Appx. 609, 611 (11th Cir. 2010)
(“Angiolillo filed his motion for leave to amend on June
11, 2009, nearly four months after the court's deadline.
Therefore, Rule 16(b)’s good cause requirement governed
the court's decision whether to grant Angiolillo's motion
for leave to amend.”); see also Sosa v. Airprint Sys.,
Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (per curiam)
(stating that, “because Sosa’s motion to amend was filed
after the scheduling order’s deadline, she must first
demonstrate good cause under Rule 16(b) before we will
consider whether amendment is proper under Rule 15(a).”)
If the court failed to require good
cause and instead considered only Rule 15, it “would
would read Rule 16(b) and its good cause requirement out
of the Federal Rules of Civil Procedure.”
In this case, Ivy has not provided good cause for his
failure to state his claim correctly in his original
complaint and for not seeking to correct that failure
until six months after the scheduling-order deadline.
There are no newly discovered facts that led to Ivy’s
Indeed, Ivy’s original charge with
the Equal Employment Opportunity Commission included the
fact that he was over 40 and the person hired instead of
him was much younger.
See Pl.’s Appendix 1 (Doc. No. 24-
Therefore, “the information supporting the proposed
amendment to the complaint was available to [Ivy] even
before [he] filed suit.”
Sosa, 133 F.3d at 1419; see
also Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th
Cir. 1999); Jameson v. Arrow Co., 75 F.3d 1528, 1535
(11th Cir. 1996).
In an on-the-record conference call
held by the court, the only excuse given by Ivy’s counsel
for the delay in amending his complaint was that the
complaint was “an error” and “an oversight.”
oversight recognized six months too late do not amount to
Therefore, Ivy’s motion to amend his
complaint will be denied.
MOTION FOR JUDGMENT ON THE PLEADINGS
“Judgment on the pleadings is appropriate where there
are no material facts in dispute and the moving party is
entitled to judgment as a matter of law.”
Cannon v. City
of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001).
In the same conference call discussed earlier, Ivy’s
counsel conceded that, if the court did not permit him to
amend his complaint, his original complaint would not
stand because it does not allege a valid retaliation
claim under Title VII.
Thus, there are no material facts
in dispute, and the school board’s motion for judgment on
the pleadings should be granted.
Accordingly, an appropriate judgment will be entered
denying Ivy’s motion to amend the pleadings and granting
judgment on the pleadings.
DONE, this the 12th day of August, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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