Banner v. Department of Health and Social Services - Division for the Visually Impaired

Filing 87

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 3/13/19. (sar)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TUESDAYS. BANNER,
Plaintiff,
Civ. No. 14-691-LPS

v.

GENELLE FLETCHER,
Defendant.

Tuesday S. Banner, New Castle, Delaware, Pro Se Plaintiff.
Carla Anne Kingery Jarosz, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendant.

MEMORANDUM OPINION

March 13, 2019
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Tuesday S. Banner. ("Plaintiff") proceeds prose and was granted leave to proceed in

jorma pauperis. She filed this action pursuant to 42 U.S.C. § 1983, alleging retaliation for filing an
anti-discrimination claim, and has amended several times to allege violations of the Family Medical
Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), the Americans with Disabilities Act of 1990, 42
U.S.C. § 12101 et seq. ("ADA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. ("Title VII"). (D.I. 2, 6, 33) The matter proceeds on the Third Amended Complaint and the
only claim that remains arises under the FMLA. (See DI. 57, 58) Pending is Plaintiff's request for
joinder of defendants, construed as a motion for leave to amend, and her motion to stay discovery.

(D.I. 62, 72) For the reasons that follow, the Court will deny the motion for leave to amend and will
deny as moot the motion to stay discovery.

II.

BACKGROUND
The Third Amended Complaint alleges wrongful acts occurring December 2, 2009 to

December 31, 2014 that resulted in the termination of Plaintiff's employment. On March 17, 2017,
the Court dismissed the Second Amended Complaint and gave Plaintiff leave to amend only as to
FMLA claims against Defendant Genelle Fletcher ("Defendant"). (D.I. 46, 47) In allowing Plaintiff
to amend, the Court stated, "This is Plaintiff's final opportunity to amend." (D.I. 46 at V)
In accordance with the order, Plaintiff filed a Third Amended Complaint on April 12, 2017.

(D.I. 49) Defendant moved to dismiss and, on March 19, 2018, the Court granted in part and
denied in part the motion. (D.I. 57, 58) The matter proceeds on the FMLA claims against
Defendant in her individual capacity. (D.I. 57 at V) All other claims are dismissed. (Id.)

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On April 25, 2018, the Court issued a scheduling order, setting a May 25, 2018 deadline to
join other parties and amend pleadings and a discovery deadline of December 21, 2018. (D.I. 60)
On May 25, 2018, Plaintiff filed a motion for joinder, construed as a motion to amend. (D.I. 62) A
proposed fourth amended complaint seeks to reinstate previously dismissed defendants and claims
and seeks to add a new defendant. (D.I. 62-1) Defendant opposes. On October 26, 2018, Plaintiff
filed a motion to stay discovery pending disposition of her motion to amend or to extend discovery
deadlines. (D.I. 72) Defendant does not oppose the motion to stay discovery provided that the
dispositive motion deadline is adjusted in kind. (D.I. 73) On December 13, 2018, the Court entered
an order that extended the discovery deadline and the dispositive motion deadline. (See D.I. 76)

III.

REQUEST FORJOINDER/MOTION TO AMEND
Pursuant to Fed. R. Civ. P. 15(a)(2), courts "should freely give leave [to amend] when justice

so requires." However, "undue delay, bad faith, dilatory motive, prejudice, [or] futility" could all
"justify a denial ofleave to amend." Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). "'Futility'
means that the complaint, as amended, would fail to state a claim upon which relief could be
granted" under the standard of Federal Rule of Civil Procedure 12(6)(6). L~jon-Twin El v. Marino,
722 F. App'x 262,265 (3d Cir. Jan. 8, 2018) (quoting Shane, 213 F.3d at 115). In evaluating whether
a plaintiff has stated a claim upon which relief could be granted, the court accepts "all factual
allegations as true, construes the complaint in the light most favorable to the plaintiff, and
determines whether, under any reasonable reading of the complaint, the plaintiff may be entitled to
relief." Bronowicz v. A!leghe,ry Cry., 804 F.3d 338, 344 (3d Cir. 2015) (internal quotation marks
omitted).
It seems that Plaintiff seeks to join parties or amend in reliance on the April 25, 2018
scheduling order, which gave the parties a May 25, 2018 deadline to join parties or amend pleadings.

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Plaintiff seeks to reinstate previously-dismissed defendants and to add a new defendant. She seeks
to amend, under the guise of joinder, "in the interest of justice and convenience to the Court and all
parties to this litigation." (D.I. 62)
Plaintiff has been given numerous opportunities to amend her pleadings to correct pleading
deficiencies. Each time, the Court explained why certain Defendants and claims against them were
subject to dismissal. The Court sees no need to reiterate its analysis. Nor is it required to give
Plaintiff leave to amend once again. Indeed, the Court advised Plaintiff on March 17, 2017, she was
being given a final opportunity to amend, which she subsequently did on April 12, 2017. The
deadline provided in the April 25, 2018 scheduling order did not erase all of this history or the
Court's previous holdings.
In any event, a review of Plaintiffs filings indicates that amendment is futile. It is wellsettled that the Court may deny a request for leave to amend where there is "repeated failure to cure
deficiencies by amendments previously allowed" the latest proposed amendment would be futile.
Foman v. Davis, 371 U.S. 178,182 (1962).

In addition, pursuant to D. Del. LR 15.1(b), when seeking to amend, the proposed amended
pleading shall indicate in what respect it differs from the pleading which it amends, by bracketing or
striking through materials to be deleted and underlining materials to be added. Plaintiff did not
comply with the local rules. The 32-page proposed amendment is actually four separate complaints
that are labeled as an amended complaint. The proposed amendment does not indicate in what
respect it differs from the pleading which it amends, does not contain all pleadings in a single
document, and does not comply with the local rules.
Therefore, the Court will deny the request for joinder construed as a motion to amend. (D.I.
62)

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IV.

DISCOVERY
Plaintiff requests either a stay of discovery or an extension of discovery deadlines. (D.I. 72)

On December 13, 2018, the Court entered an order that extended the discovery deadline and the
dispositive motion deadline. (See D.I. 76) Accordingly, Plaintiff's motion will be denied as moot.

V.

CONCLUSION
For the above reasons, the Court will: (1) deny Plaintiff's request for joinder, construed as a

motion for leave to amend (D.I. 62); and (2) deny as moot Plaintiff's motion to extend discovery
deadlines (D.I. 72).
An appropriate Order will be entered.

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