Gray v. McHugh

Filing 37

ORDER granting 33 Motion to Amend/Correct; terminating 28 Motion to Dismiss. Plaintiff is allowed 7 days from the date of this Order to file his 3rd amended complaint as a stand alone document. Defendant shall have 21 days from the date of this order to renew his motion to dismiss or otherwise respond to Plaintiff's 3rd amended complaint. Signed by Judge J. Randal Hall on 9/19/14. (cmr)

O IGINAL
R

i'11.-i:D
r.il ,'l:r1iil[T 0URT
i
C
r&
THE r,l :l llv'

STATES DISTRICT COI'RT FOR
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

rN THE I'NITED

?Jiisti: Ptt t6
19 2:

,.1-6;i6
CA,Jo^-r-o
S Oi,] I S I O FG A .
.

RUSSELL GRAY,
rICL-LIIL-LIL,

cr rt3-224

v.
SCCTCTATY,

MCHUGH,

JOHN M.

Department

Army,

the

of

Defendan!.

ORDER

is

Defendant's

a

asserting
s 206 (d)
20L4.

cfaim

granted

Rule of

ultimatel-y

filed

20L4, Lo which

Pay Act

of

(Doc.

amend his

yet

fifed

a

leave

to

Civil
his

s

amend as

Procedure
First

responsive
a

15(a) (1).

(Doc.

pleading,
of

course

VTI retaliation

on
cfaim

As

9')
the

(Doc. 11.)

Amended Complaint

he added a Title

On ,January 9,

1. )

matter

2oL3

29 U'S'c-

1963,

complaint.

not

Plaintiff

Federat

Equal

December 27,

on

court

moved to

Ptaintiff
had

this

215 (a) (3) .

arld 29 u.s.c.

Defendant

in
the

under

Court

BACKGROUND

suit

filed

Plaintiff

the

Al-so before

for

(Doc. 32.t

Motion to Dismiss I.

Motion

Plaintiff's

(Doc. 33')

compl-aint.

Amend his

Leave to

on

court

the

before

is

matcer

This

court
under

Pfaintiff
,fanuary

31,

on gender,

l-^.,a

.errd

nej- i.)n.

2,

lacked
Act

(Doc.

20L4.

subject

(Id.

remedies.
dismiss,

but

and waive
than

granted

Subsequently,
dismiss

his

on ,July

facts

t

to

in

his

identify

his
office

Court
Pay

EquaI

were

administrative

opposed

the

l-eave

motion

amend his

to

the

First

the

this

coufd

Court

201-4, the

(Doc.

of

Equal

damages under

l-2,

to

alfegations

26)

Pay

retain

Court

again

Plaintiff

and

(1)

to

work
to

a single

Defendant

filed

affege
as

any

specific

substantially

substantiate
discriminatory

his
act

similar

or

28 .)
that

comparators

Equal

to

argues

Defendant

dismiss,

a motion
( D o c.

Amended Complaint.
to

motion

failed

describing

females
(2)

first

has

Plaintiff

2014,

3,

Second

Plaintiff's

Echoing

amend

to

the

Second Amended Complaint.t

his

filed

simultaneously

On June

25.)

leave

Plaintiff

of
so

$10,000

(Doc.

jurisdiction.

recovery

on April-

save one -

-

articulate

more cfearly

"to

l-ess

to

requesCed

that

its

exhaust

to

Pfaintiff

7-L3.)

alternatively

complaint"

Act

faiture

at

Amended complaint
the

for

filed

timely

cfaims

VfI

wofk

hostile

P-laintif f 's

over

Title

dismissal

to

a

argued

Defendant

Plaintiff's

and afl

claim

aS

Amended Complaint

juri sdiction

matter

subjecr

wefl

Defendant

First

There,

16.)

:s

13 . )

PlainLiff's

dismiss

to

.rr.rrrndq

(Doc.

cfaim.

environment
motion

^r'i di n

l

to

that

Pay Act

event

of

c.Laim,'

forming

as his Amended complaintt o this pleading
refers
Plaintiff
on the d o c k e t ( D o c s . 1 , 1 3 , a n d 2 7 ) , t h e c o u r t
complaint
the third
idFnt-i
Ff
il>e
l-hF
Sp..nd
Amended ComplainL.

or

As this
will

t.he

is

basis

Titfe

his

of

has

Pfaintiff

Again,

rr nf

I .\

II.

seeks

Pfaj-ntiff
to

his

bolsEer

comparators

(Doc.

"

Plaintiff's
faifure

to

The Court
ft>

CiviL

ct

9s.rrEr

IA2

(L962);

695,

699

(11th

"in

the

given
v.

2005)

automatic,

exerci se of

jts

litigation

before

(1lth

?OQQI; Hargett

cir.

as

it."

"

and

motion

Lexington

triaf

as two of
pfed

valley

Che

three
and

s
of
for

feave to amend.

Davis,

Ins.

Herbert,

in

(Doc. 28, aL 8-14.)

Federal

court

is

Pfaintiff'

under

power to

Reese v.
v.

dismiss

for

curiam) .

inherent

work

Foman v.

freely.

a

"specific

comparators

remedies.

(per

with

insufficientlv

--^1d

Cir.

Amended

his

as well

Plaintiff's

Saewitz

but

Second Amended Complaint

moves to

ent'ire.fv-

cfaims

is

Second

Cl-aims.

femafe

4-L

17A,

not

of

administrative

15(a)

his

demonsLrate

that

ifs

resolves

first

h'S

remedies.

dismiss,

Equa-L Pay Act

Defendant

VII

exhaust

Procedure

amend is

to

in

Title

che

which

33. )

F l c t u la P a v A e f . c l a i m

'r,

amend his

to

facts

simifar

amend

to

and

DISCUSSION

under

claim

and

substantiall-y
office.

leave

motion

to

.laf anl- c

discrimination

administrat.ive

the

mot j-on

a

\\F I la^a,'l

/-rrrF

exhaust

to

opposed

files

sj-multaneously
Cnmn

(3)

and

claims;

retaliation

compensation

VII

Co.,
That

Rule

371 U.S.

133 E.
said,

may deny

of

App'x

leave
such

to

leave

manage Lhe condLrcL oI
527 F.3d

Fed. sav.

1253,

1-263

Bank, 60 F.3d 754,

761 (l-1-th Cir.

r.Fas^n fr) den\.r
is

court
v.

nor

'leave fo

supreme Court

Foman, the

6^+-iva

t-ha

h.rt-

deficiencies

party

Ehe opposing

,Jameson v.

^.

Arrow

by

Co.,

also

result

from

denying

to

the

Downtown,
r !

yr

of

on the

decisions

be

mer.its."
'

of

to

the

pleading

is

al-lowance
?"1

q

IT

be avoided

on the

1a?.

(11th
to

Gen.

basis

for

of

one mj-sstep by

is

to

Foman. 371 U.S. at

facil-itate

a

the

mere

approach

t.hat

counsel

principl-e

proper

1980).'?

Procedure

Civil-

which

accepe

Loan

-errr

rejec!

and

wilf

nnrf

Rules

oulcome

Fin.

Cir.

Federal
in

1996).

movant

.'c*f i ratrr
L..Lf
lctl

the

-1d^

caa

Cir.

the

(5th

of

t-^

amendment,

l-L31

Rules

lrrra

the

^i-

.+- is

dilatory

prejudice

v.

Lhat

or

that

undue

Lockett

LL28,

Federal

f-:i

of

1534-35

amend.

mindlul

to

6,.1

undue preiudice

F.2d

faiLh

bad

a11owed,

L528,

Corp.

King

reasons

skilf

j-s a game of

decisive

purpose

merits
The

technicalities.
pleading

the

of

75 F.3d

623

several

raha>t-

F.rm^n

l-eave to

^aurL

-.^

spirit

virtue
,/

Burger

identified

m.\\r:nl-

whether

consi-der

r-luLr-LL-Lvrio

t-hA

district.

the

1999).

"undue delay,

-nan,.lmanl-

Courts

of

Cir.

a substantiaf

of

deniaI."

amendments previously

by

!,,- i- i-.,
uLr!!ry

.\f

e

I/$!

---.ll
Ld r r L r I

Leave:

denying

is

there

di scretion

permic

b-road enough to

may jusLify

Co.

amend. fhe

Weaver, 159 F.3d 131-0, 1-319 (llth
In

to

However, "Iu]nless

1995)

decision

that
on

may
the
the

181--82.

qgg Bonner v. City of prichard,
ALa.,
661 F - 2 d L 2 O 6 , 1 2 0 ? ( 1 l t h
1 q a 1I l h ^ l d i n d F i f f h
c i ' : c u i t d e c i s i o n s m a d e O n o r before
Septernber 30,
precedent
in the Eleventh
are binding
Circuit)
.

C1r.
1981,

Court

The
Amend

at

finds

this

argument

as

no

reason

stage.

to

why

the

Court

--.]
orru

'

^1^r;+'r
radlaLJ

evidence

to

wrongful

motive

in

case

this

careful
the

indicate

proposes

to

crf

the

comprehensive/

i nformaLion

work

in

the

Empl-oyment Opportunity
possession

since

fifing

to

n)^r 1 t L

would

be

amendment

feave

judiciat

case with

severely
is

^^,,
drry

n aean
p .r E J E r ri L q \ . r 6 . . 1

has manaqed his

a

prejudiced

allowed.

r

After

Amended Complaint, a
Count

(Doc.

33,

he

and

Court

finds

to

p.

paragraphs

1.)

of

t i9 i 1 6 - 2 5 . )

its

first

fiLed

Defendant

motion

to

cfaim

Specifically,

some evidence

which

his

comparator

E o r m aI C o m p l a i n t
office,

I,

he

data

r v.t.l lrl rm! r . r a r$avf! ^ r < 9r
v
'*
u

those

3 d A m . C o m p l. " ) ,

PIainLiff's

him

make refate

to

(10)

6 (*Pf .'s

f

no

justice,

hr<

to

presented

grant
of

eo

Motion

proposed Third

Pay Act.
ten

has

again

I ilrcrri

proposed

Plaintiff's

PLaintiff's

"interests

Defendant

that

oI

add

ions

of

Plaint.if

the

Equal

(Doc. 33, p.
as

that

or

shoul,d

anA.znf

changes he seeks

the

desr-r'inl-

Daf

if

review

only

under

"

deny
Plaintiff

Although

amend beyond tshe incantation
crv'rwlLy,

to

and

nUa r f nl vg 6 g d ,
I, .

Aft.hough not
of

comparator

with
has

rhe Equal

had

dismiss

in

in

his

April

t

Litigants
That other,
future
may receive
a "wrong signal,.
about the
.s
purpor rea w-.L1-ngness to accool oaroeLLolly
ao-fL's
det::iel,r
p oadirgs
persuasive
neither
nor correct.
Moreover,
DefeIldant
asserts
that
to pemit
t'four bites
amendment wouLd be to qive Plainiiff
(Egg Ooc.
at the app1e."
35, p. 3.)
That .is technically
correct/
but the Court points out plaintiff's
first
amendment was within
his right
in the absence of a responsive
pleading,
and Defendant
dj-d not object
(Doc. 11;
to his
subsequent
motion
to amend.
Doc. 35, at 3-4.)
'
as the
fourth
identify

.fusL as discussed in Note L, supra,
Plaintiff
pleading
refers
to this
(!gg noc. 33. p- 6-)
Second Amended Complaint.
As this
is the
complaj-nt on the docket (Dacs. L, !3,27,
and 33), the Court will
it as the Third Amended cornplainb.

(See Docs.

201.4.
prejudice
not

16 & 28,

Defendant

reach the

may suffer

.Levef of

Nevertheless,
Court

has provided

of

this

by

f

Plai-ntif

date.

The Court

that

also

has expended in

to

Even t.hough Counts II,

Amended ComplainL

Third
Il ,

III,

that

it

would

the

merit.s

add

to

Count
do

Count

is

III

reluctantly

of

are

those
I

not

for

ripe

the

decl-ines

amendments

the

afl

in

to

effort
to

and

dismiss

Ptaintiff's

respects

to

Counts

to

Count
IV.

Court's

Lo adoress

Plaintiff

Count

of

such

make a determination

aflegations
related

the

the

and IV of

on

seeks

ff-

to

Moreover,

Thus,

consideration,

Defendant's

he

than

two motions

ITI,

Court

dismissal

for

further

The

Second Amended Complaint

inlimately
seek

counsel.

recognizes

identical-

claims,

are

no

submitting

Pfaintiff's

be proper

of

Defendants

this

IV

and

any

amendment does

more compel-l-ing justification

far

t.ime Defendant
the Court.

such notice,

represented

is

absent

to

With

"undue. "

instructs

be granted

9) .

on account

Plaintiff

therefore

wifL

Ex. B, p.

as

the

only
Court

motion

to dismiss

at

Amend

(Doc.

is

time.
Plaintiff's

GRANTED.

He

shall

have

Order

to

f il-e

his

terms

of

thls

order

Cl-erk

is

therefore

Dismiss

to

Motion

Plaintiff's

for

Leave

SEVEN (7)

to

DAYS fron

THIRD AMENDEDCO!4PLAINT in
as

a st.and-al-one

DIRECTED to
Second

entry

the

date

accordance
on the

33)
of
with

docket..

TERMINATE Defendant, s Motion
Amended

Compl-aint

(Doc.

this
the
The
to
28) .

Defendant

shall-

have

to

renew

his

order
Plainrj

ff's

Third

ORDER
Cahf

aml-\ar

TWENTY-oNE (21)
mot.ion

to

dismiss

DAYS from
or

the

date

otherwise

of

respond

thas
to

Amended Complaint,

EtillIERED

at

Augusta,

Georgia,

this

/N

?n11

STATES DISTRICT.JUDGE
SOUTHERN DISTRICT OF GEORGIA

u^o or