Flunders v. People First Rehabilitation

Filing 19

ORDER that 13 Defendant's Motion to Dismiss is denied as moot without prejudice. FURTHER ORDERED that Plaintiff's 16 Motion for Leave to File a Second Amended Complaint is granted. Plaintiff may file a second amended complaint within 21 days from the date of this Order; if plaintiff fails to file a second amended complaint within this deadline, then defendant may re-file the Motion to Dismiss that the Court has denied without prejudice within 25 days from the date of this Order. Signed by Senior Judge James A Teilborg on 8/27/2013.(TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michelle Montgomery Flunder,
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No. 12-CV-01668-PHX-JAT
Plaintiff,

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v.

ORDER

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People First Rehabilitation, subsidiary
of Kindred Rehabilitation Services Inc.,

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Defendant.

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Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s Amended

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Complaint (Doc. 13). Plaintiff has filed a Response to the motion to dismiss and a Motion

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for Leave to File a Second Amended Complaint (Doc. 16). Defendant has filed a Reply

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opposing Plaintiff’s motion (Doc. 17). The Court will deny Defendant’s motion and grant

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Plaintiff’s motion for the following reasons.

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I.

BACKGROUND

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On August 6, 2012, Plaintiff filed a complaint in this Court as a pro se litigant

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alleging three counts of racial discrimination against her former employer—Defendant

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People First Rehabilitation (“People First”). (Doc. 1). On August 10, 2012, the Court

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entered an Order directing Plaintiff to complete and return the service packet to the Clerk

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of the Court by September 10th. (Doc. 6). Plaintiff failed to complete and return the

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service packet within the requisite time period. On September 24, 2012, the Court entered

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an Order directing Plaintiff to appear in person before the Court on October 17, 2012, and

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show cause why this case should not be dismissed due to Plaintiff’s failure to return the

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service packet as required. (Doc. 7). On October 11, 2012, Plaintiff filed a first amended

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complaint (the “Amended Complaint”) alleging three counts of racial discrimination and

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one count of hostile work environment against People First. (Doc. 8). At the hearing on

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October 17, 2012, Plaintiff represented to the Court that she forwarded the service packet

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for the Amended Complaint on the day she filed the Amended Complaint, October 11th.

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(Doc. 10). Following the hearing, the Court granted an extension allowing an extension of

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service. (Id.). On November 11, 2012, Plaintiff gave notice to the Court that she had

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retained counsel to represent her.

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Amended Complaint.

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Complaint on December 14, 2012. (Doc. 13). Plaintiff’s counsel filed the pending motion

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to file a Second Amended Complaint on January 14, 2013. (Doc. 16).

(Doc. 11).

Plaintiff’s counsel did not draft the

Defendant filed the pending motion to dismiss the Amended

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In the Amended Complaint, Plaintiff alleges four claims against People First.

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(Doc. 8). Counts One and Two are alleged violations of Title VII of the Civil Rights Act

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of 1964, as amended 42 U.S.C. § 2000, et seq. (“Title VII”), and Counts Three and Four

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are alleged violations of 42 U.S.C. § 1981. (Id. at 17-20).

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Defendant argues that Plaintiff’s Amended Complaint should be dismissed with

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prejudice because it does not meet the requirements of Federal Rule of Civil Procedure 8

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as it fails to give a “short and plain statement of the claim showing that the pleader is

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entitled to relief.” (Doc. 13 at 3) (quoting Fed. R. Civ. P. 8(a)(2)). Defendant explains

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that the facts alleged in the Amended Complaint span 14 pages and close to 60 numbered

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paragraphs that are largely narratives of irrelevant background facts, which Plaintiff has

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not tied to the specific claims she made. (Id. at 4-7). Plaintiff has merely incorporated by

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reference all of the preceding paragraphs in each claim she made against Defendant.

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Defendant argues that it should not be required to scour the Amended Complaint to

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discern what facts relate to each claim. (Id. at 7).
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In the Response, Plaintiff has not addressed the merits of Defendant’s argument in

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the motion to dismiss. Instead, Plaintiff has merely requested that in order to resolve

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Defendant’s objections the Court grant leave to file a Second Amended Complaint

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because the preceding two complaints were filed pro se. Plaintiff argues that she is

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entitled to the request because the Ninth Circuit Court of Appeals has said that motions to

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amend should be freely granted with “extreme liberality.” (Doc. 16 at 1-2) (citing Owens

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v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)).

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II.

ANALYSIS

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A district court’s denial of leave to amend is subject to an abuse of discretion

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standard of review. See Telesaursus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.

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2010). The Court has “an obligation where the petitioner is pro se, particularly in civil

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rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of

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any doubt.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Bretz v.

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Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)). “A district court should not

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dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.’” Id. (quoting Schucker

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v. Rockwood, 846 F.2d 1202, 1203–04 (9th Cir. 1988) (per curiam)).

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Under Ninth Circuit Court of Appeals precedent prior to the 2010 amendments to

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the Federal Rules of Civil Procedure, this Court would sua sponte grant leave to amend

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when granting a motion to dismiss under Rule 12(b)(6), unless a pleading could not be

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cured by the allegation of other facts. See Lacey v. Maricopa Cnty., 693 F.3d 896, 927

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(9th Cir. 2012) (en banc) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).

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However, this precedent has been called into question in light of the 2010 changes to the

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Federal Rule of Civil Procedure 15, which now allows parties twenty-one days from

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responsive pleadings and motions to dismiss to amend once as a matter of course. See id.

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The United States Supreme Court has established that motions to amend should be granted

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unless the district court determines that there has been a showing of: (1) undue delay; (2)

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bad faith or dilatory motives on the part of the movant; (3) repeated failure to cure
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deficiencies by previous amendments; (4) undue prejudice to the opposing party; or (5)

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futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see W.

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Shoshone Nat’l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991). “Generally, this

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determination should be performed with all inferences in favor of granting the motion” to

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amend. Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999) (citing DCD

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Programs, LTD. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)). Significantly, “[t]he

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party opposing amendment bears the burden of showing prejudice,” futility, or one of the

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other permissible reasons for denying a motion to amend. DCD Programs, 833 F.2d at

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187; see Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988) (stating that leave

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to amend should be freely given unless opposing party makes “an affirmative showing of

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either prejudice or bad faith”).

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Local Rule of Civil Procedure 15.1 provides that a “party who moves for leave to

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amend a pleading . . . must attach a copy of the proposed amended pleading as an exhibit

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to the motion . . . , which must indicate in what respect it differs from the pleading which

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it amends . . . .” LRCiv 15.1 (emphasis added). This requirement enables the Court to

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determine whether allowing amendment of Plaintiff’s claims would be futile. See Sheriff

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v. Deutsche Bank Nat. Trust Co., CV-10-1328-PHX-JAT, 2011 WL 1496152, at *4 (D.

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Ariz. Apr. 20, 2011).

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In this case, neither party has met their burden. Defendant has not shown how the

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deficiencies of the Amended Complaint could not be cured by amendment. Defendant

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merely argues that Plaintiff’s Amended Complaint does not comply with Rule 8 and that

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Plaintiff’s counsel has failed to comply with Local Rule 15.1. (Doc. 17 at 2). Indeed,

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Plaintiff’s counsel did fail to abide by Local Rule 15.1 and attach a copy of the proposed

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amended pleading as an exhibit to Plaintiff’s motion to amend. Because Plaintiff did not

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attach a proposed Second Amended Complaint, Defendant cannot show and the Court

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cannot determine whether amendment of Plaintiff’s claims would be futile.

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Defendant has not shown the four other factors as well. There has been no

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showing made that granting Plaintiff’s motion would cause undue delay, that Plaintiff has
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acted in bad faith or with dilatory motives, or that Plaintiff has repeatedly failed to cure

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deficiencies by previous amendments. The Court also notes that Defendant will not be

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subjected to undue prejudice by granting Plaintiff’s motion because the first two

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complaints were filed pro se and the Amended Complaint was filed before any

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meaningful defense was raised to the original complaint. Further, while acting pro se,

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Plaintiff filed an amended complaint which forfeited Plaintiff’s counsel’s opportunity to

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file an amended complaint as a matter of course under Federal Rule of Civil Procedure 15.

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Even though Plaintiff eventually retained counsel, Plaintiff has still essentially functioned

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as a pro se litigant up to this point and should not be treated more strictly at this juncture

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merely because she has retained counsel and before she receives substantive assistance

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from that representation. The Ninth Circuit Court of Appeals has directed the Court to

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grant pro se litigants leave to amend with extreme liberality, especially in civil rights

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claims. Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). Accordingly, the Court

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grants Plaintiff’s motion to amend.

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However, the Court reminds Plaintiff’s counsel that the Local Rules of Civil

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Procedure are to be followed. The Court has discretion to award attorney’s fees to a

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prevailing defendant in a Title VII case. E.E.O.C. v. Bruno’s Rest., 13 F.3d 285, 287 (9th

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Cir. 1993) (quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978) (“[A]

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district court may in its discretion award attorney's fees to a prevailing defendant in a Title

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VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without

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foundation, even though not brought in subjective bad faith.”)). While the Ninth Circuit

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has indeed granted leave to amend with extreme liberality, the extremely liberal policy in

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favor of amendments is subject to limitations. As explained above, the district court will

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not grant further motions to amend if the Court determines that there has been a showing

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of: (1) undue delay; (2) bad faith or dilatory motives on the part of the movant; (3)

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repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the

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opposing party; or (5) futility of the proposed amendment. Foman, 371 U.S. at 182. In

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addition, the Court’s discretion to deny further leave to amend is “particularly broad
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where plaintiff has previously amended the complaint.” Ascon Properties, Inc. v. Mobil

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Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). In fact, leave to amend “need not be given

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if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Exp.,

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Inc., 885 F.2d 531, 538 (9th Cir. 1989).

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III.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 13) is denied as

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moot without prejudice.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File a Second

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Amended Complaint (Doc. 16) is granted. Plaintiff may file a second amended complaint

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within twenty-one (21) days from the date of this order; if Plaintiff fails to file a second

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amended complaint within this deadline, then Defendant may re-file the Motion to

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Dismiss that the Court has denied without prejudice within twenty-five (25) days from the

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date of this order.

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Dated this 27th day of August, 2013.

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