Woodson v. 3M Company

Filing 52

MEMORANDUM Opinion and Order: For the reasons set forth in the attached Opinion, Plaintiff's motion for leave to amend his complaint 39 is granted. By 5/12/2022, Plaintiff shall file the proposed amended complaint as a separately docketed entr y. In light of the Court granting Plaintiff leave to file his amended complaint, by 5/16/2022, the parties are directed to meet and confer to determine how much discovery will need to be conducted and file a joint status report with an estimate of ho w long they will need to complete said discovery. Accordingly, Plaintiff's motion for extension of time to complete discovery 46 is stricken. However, the parties' conference should include a discussion of the issues brought in Plaintiff& #039;s motion for extension of time. A telephonic status hearing is set for 5/19/2022 at 10:15 AM to discuss the extension of fact discovery and set a new deadline for the same. Public access is available via the following call-in number: (877) 336-1 831 with access code 2813746. Plaintiff and counsel for Defendants are directed to appear. Plaintiff and counsel of record will receive an email the day prior to the start of the telephonic hearing with instructions to join the call. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions. Signed by the Honorable Lisa A. Jensen on 5/9/2022. Mailed notice. (vk)

Case: 3:21-cv-50244 Document #: 52 Filed: 05/09/22 Page 1 of 8 PageID #:351

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Dale D. Woodson,
Plaintiff,
v.
3M Company,
Defendant.

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Case No. 3:21-cv-50244
Magistrate Judge Lisa A. Jensen

MEMORANDUM OPINION AND ORDER
Plaintiff has filed a motion for leave to amend his complaint, Dkt. 39. For the following
reasons, the motion for leave to amend is granted.
I. BACKGROUND
In the initial complaint, Plaintiff alleges that he has suffered for many years from a
permanent condition known as hidradenitis suppurativa, which is a painful, chronic skin disease.
Pl.’s Compl. at 3, Dkt. 1. He alleges that, although it is generally tolerable, he does experience
periodic flareups which require him to be medicated and inactive for one to two days at a time to
allow for treatment and subsidence of symptoms. Plaintiff asserts that he was hired by Defendant
in May of 2016, and that he advised Defendant’s human resources administration of his disability
and need for time off when flareups occur. He alleges that it took a year before Defendant
ultimately afforded him intermittent leave two days per month if needed under the Family Medical
Leave Act (“FMLA”), 29 U.S.C. §2601, et seq. Plaintiff alleges that there were multiple instances
in which Defendant engaged in discriminatory and retaliatory conduct based on Plaintiff’s
disability and utilization of FMLA leave, ultimately resulting in the termination of his employment
in September 2019. Id. at 1-12.
Prior to filing his complaint, Plaintiff timely filed a charge with the Illinois Department of
Human Rights (“IDHR”) on March 28, 2020, which was also cross-filed with the Equal
Employment Opportunity Commission (“EEOC”), asserting “discrimination based on disability,
retaliation, and race.” Pl.’s Compl. at 2, Dkt. 1. He received letters from the IDHR and EEOC
allowing him to initiate litigation on these issues on March 22, 2021, and June 7, 2021,
respectively. Id. Plaintiff filed the instant lawsuit in June 2021, which was within the statutory 90day timeframe. See 42 U.S.C. § 2000e-5(f)(1); 775 ILCS 5/7A-102. The Complaint sets out six
claims: (1) disability discrimination under the Americans with Disabilities Act (“ADA”), 42
U.S.C. §12101, et seq.; (2) retaliation discrimination under the ADA; (3) violation of the FMLA;
(4) violation of the Rehabilitation Act of 1973, 29 U.S.C. §701, et seq.; (5) disability discrimination

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under the Illinois Human Rights Act (“IHRA”), 775 ILCS 5/2-101, et seq.; and (6) retaliation
discrimination under the IHRA.
In August 2021, the Court adopted the parties’ proposed case management order, which
included an amended pleadings deadline of January 28, 2022, and a fact discovery deadline of
February 28, 2022. See Dkt. 14. On February 22, 2022, Plaintiff filed a motion to compel. See Dkt.
30. Plaintiff sought, among other things, certain race-related discovery in order to determine if an
amended complaint would be deemed necessary. Id. at 4. The Court held a motion hearing on
February 28, 2022, granting part of the motion and ordering the parties to submit additional
briefing on the race-related discovery issue. See Dkt. 35. The Court also extended the fact
discovery deadline to April 29, 2022. Both parties submitted additional briefing on March 7, 2022,
and, on March 21, 2022, the Court denied Plaintiff’s motion to compel with respect to the requested
race-related information on the basis that discovery should be limited to matters relevant to the
actual claims and defenses in the action, and Plaintiff’s complaint lacked any claims related to
race. See Dkt. 38.
Three days later, on March 24, 2022, Plaintiff filed the instant motion for leave to amend
with the proposed amended complaint attached as an exhibit. See Dkt. 39. The proposed amended
complaint seeks to add three claims for race discrimination and retaliation under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the IHRA, and 42 U.S.C. § 1981. Defendant
filed its response in opposition to the motion on April 4, 2022, see Dkt. 44, and Plaintiff filed a
reply on April 12, 2022, see Dkt. 45.
II. DISCUSSION
Federal Rule of Civil Procedure 15(a) provides that, other than when a party amends its
pleading as a matter of course, “a party may amend its pleading only with the opposing party's
consent or the court's leave. The court should freely give leave when justice so requires." Fed. R.
Civ. P. 15(a)(2). “In light of the presumption in favor of giving plaintiffs at least one opportunity
to amend, denying a plaintiff that opportunity carries a high risk of being deemed an abuse of
discretion.” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago and N.W. Indiana, 786
F.3d 510, 518 (7th Cir. 2015) (internal citation omitted). While the rule reflects a liberal attitude
towards the amendment of pleadings, courts, in their sound discretion, may deny a proposed
amendment if the moving party has unduly delayed in filing the motion, if the opposing party
would suffer undue prejudice, or if the pleading is futile. Soltys v. Costello, 520 F.3d 737, 743 (7th
Cir. 2008). However, when a scheduling order has been entered and the deadline to file amended
pleadings has passed, the party seeking an amendment must first demonstrate good cause under
Rule 16(b)(4) before Rule 15(a)'s more liberal standard for amendment applies. Alioto v. Town of
Lisbon, 651 F.3d 715, 719 (7th Cir. 2011); see Fed. R. Civ. P. 16(b)(4) (“A schedule may be
modified only for good cause and with the judge’s consent.”). In determining whether good cause
exists, the court primarily considers the diligence of the party seeking to amend, but it is within
the sound discretion of the court to grant or deny leave to amend. Trustmark Ins. Co. v. Gen. &
Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005).
Plaintiff explains in his motion that, although he asserted race-related claims in his charge
with the IDHR and EEOC, at the time he was filing his original complaint he did not know whether
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there was sufficient evidence to sustain race-related claims. Pl.’s Mot. at 2, Dkt. 39. He now seeks
to add counts based on conduct and practices recently uncovered during discovery which he claims
support his allegations of race discrimination and retaliation. Id. Defendant opposes Plaintiff’s
motion to amend on three bases. The Court will address each of the contested issues below.
Good cause
As explained above, a motion for leave to amend is evaluated under Rule 15(a)(2), but
when the motion is filed after the amended pleadings deadline, it first requires a determination of
good cause under Rule 16(b)(4). See Alioto, 651 F.3d at 719. The Seventh Circuit has stated that,
when “making a Rule 16(b) good-cause determination, the primary consideration for district courts
is the diligence of the party seeking amendment.” Id. at 720. “[A]mong the aims of Rule 16 are to
prevent parties from delaying or procrastinating and to keep the case moving toward trial.” Id.
(internal quotations omitted).
Plaintiff submits that there is good cause to allow the filing of the proposed amended
complaint consistent with Rule 16 because: there is no trial date or deadlines for dispositive
motions and (at the time of the motion) discovery had not yet closed; Defendant delayed in
responding to discovery; Defendant made multiple objections to his production requests including
those related to race; the parties attempted in good faith to resolve the objections over an extended
period of time but were ultimately unsuccessful; and he had to review the over 1,700 pages
produced by Defendant in order to discover documents that form the basis for race-based claims.
Pl.’s Mot. at 2, Dkt. 39; Pl.’s Reply at 8, Dkt. 45.
Consistent with Plaintiff’s argument, this case is less than a year old and Plaintiff’s motion
was filed over a month before the fact discovery deadline. This is important given that courts often
consider the posture of the case when making a good cause determination. See Astellas Inst. for
Regenerative Med. v. ImStem Biotechnology, Inc., No. 17-CV-12239-ADB, 2019 WL 9096049, at
*2 (D. Mass. Aug. 21, 2019) (finding good cause for the amendment in part because the motion
was brought before the close of discovery); Harrington v. Lauer, No. 1:11-CV-270, 2012 WL
868693, at *2 (N.D. Ind. Mar. 12, 2012) (same); R3 Composites Corp. v. G&S Sales Corp., No.
116CV00387HABSLC, 2021 WL 613836, at *4 (N.D. Ind. Feb. 17, 2021) (declining to grant the
amendment in part because discovery had been closed for over two years and dispositive motions
had already been filed and ruled upon). As such, the posture of the case supports a finding of good
cause.
In response to Plaintiff’s argument that good cause exists due to Defendant’s delayed
responses and objections, Defendant asserts that it was justified in objecting to Plaintiff’s racerelated discovery requests, especially in light of this Court’s acknowledgement that the original
complaint did not plead any race-related allegations. Def.’s Resp. at 7, Dkt. 44. In the Court’s
view, Defendant does not adequately address Plaintiff’s argument. According to a previous filing
in this case, see Dkt. 25, Plaintiff served his first requests for production of documents on
September 30, 2021 and Defendant served its answers on December 6, 2021. This is well beyond
the time to respond set out in Rule 34. See Fed. R. Civ. P. 34(b)(2)(A) (“The party to whom the
request is directed must respond in writing within 30 days after being served.”). In other words,
while it may be true that Defendant was justified in its objections, this does not mean that any
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delay on Defendant’s part was justified. Therefore, Defendant’s delay in responding and objecting
to Plaintiff’s discovery requests supports a finding of good cause.
With respect to Plaintiff’s argument that he had to sift through over 1,700 pages of
documents Defendant produced, Defendant argues that Plaintiff could have brought his race
discrimination claims well in advance of the amended pleading deadline or, at least, sought a
motion for extension of time, and cites two cases in support. Id. at 7-8. As an initial matter, the
two cases Defendant cites do not support its argument. In those cases, the Seventh Circuit affirmed
denials of motions to amend because the plaintiffs had been aware of the facts underlying its
proposed additional claims for well over a year. See Trustmark Ins. Co., 424 F.3d at 553; Glatt v.
Chicago Park District, 87 F.3d 190, 194 (7th Cir. 1996). Here, however, Plaintiff received the
1,700 pages of discovery on December 6, 2021, and filed the motion to amend on March 24, 2022;
a three-and-a-half-month delay is not comparable to the significant delay discussed in the cases
above. Moreover, having considered the procedural history and facts of the case, the Court finds
there is good cause to grant leave to amend for several additional reasons.
First, Plaintiff exercised due diligence by delaying the addition of his race-related claims
until he could determine the propriety of raising such claims consistent with Rule 11. See Fed. R.
Civ. P 11(b)(2) (obligating counsel to ensure that a complaint’s “factual contentions have
evidentiary support . . . [or] will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery.”). In his motion to compel, Plaintiff explained that he was
seeking further discovery to determine the propriety of amending his complaint to add race-related
claims. 1 See Dkt. 30. The Court ruled that it would not allow discovery on race-related claims
without relevant allegations, and Plaintiff promptly filed the instant motion to amend just three
days later. Courts across the country find that a party’s delay in seeking leave to amend is
considered reasonably diligent when it is for the purpose of ensuring there is sufficient evidence
to justify the amendment. See Patrick v. Cowen, No. 3:14-CV-782-RLM-CAN, 2015 WL
13668669, at *2 (N.D. Ind. Mar. 26, 2015) (counsel’s efforts to determine the propriety of raising
an FMLA claim constituted due diligence, demonstrating good cause under Rule 16 to file a motion
for leave to amend 60 days after the amended pleadings deadline); Ceballos v. Contra Costa Cty.,
No. C 13-04584 LB, 2014 WL 2582541, at *3 (N.D. Cal. June 9, 2014) (counsel’s “conservative
1

Part of Defendant’s argument is that Plaintiff first alleged race discrimination in his Charge of
Discrimination filed with the EEOC and IDHR, so he clearly knew of the facts relating to race
discrimination well before filing his motion to amend. Def.’s Resp. at 9, Dkt. 44. However, it is common
knowledge that the pleading standard for an EEOC or IHDR charge is much lower than the standard for a
civil complaint. See Macchia v. Loyola Univ. Med. Ctr., No. 04 C 5049, 2004 WL 2392201, at *4 (N.D. Ill.
Oct. 25, 2004) (compared to a civil complaint, a more liberal pleading standard is applied to allegations in
an EEOC charge “because laypersons draft them, frequently without the assistance of an attorney”); B.K.B.
v. Maui Police Dep’t, 276 F.3d 1091, 1103 (9th Cir. 2002) (“[C]omplainants filing discrimination charges
are acting as laypersons and should not be held to the higher standard of legal pleading by which we would
review a civil complaint.”); Arnold v. City & Cnty. of Denver, No. 14-CV-00290-REB-CBS, 2015 WL
509489, at *1 (D. Colo. Feb. 4, 2015) (explaining that the EEOC applies a “reasonable cause to believe”
standard of review, which is a standard of proof different than what is applicable in a civil case); VanHorn
v. U.S. Gov't Contracted Hana Grp., Inc., No. CIV. 12-00215 LEK, 2013 WL 495274, at *4 (D. Haw. Feb.
7, 2013) (EEOC charges are made by those “unschooled in the technicalities of formal pleading”). As such,
it was appropriate for Plaintiff’s counsel to verify that the race-related claims were consistent with the
higher pleading standards before seeking to amend.

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approach” of waiting until he could receive and review certain discovery before seeking leave to
amend constituted reasonable diligence); Pac. Sci. Energetic Materials Co. (Arizona) LLC v.
Ensign-Bickford Aerospace & Def. Co., 281 F.R.D. 358, 362 (D. Ariz. 2012) (defendant’s reason
for delay in seeking to add a counterclaim – its concern that doing so would not be consistent with
Rule 11 – satisfied the good cause standard of Rule 16); DCD Programs, Ltd. v. Leighton, 833
F.2d 183, 187 (9th Cir. 1987) (no “unjust delay” when plaintiffs “waited [to move to amend] until
they had sufficient evidence of conduct upon which they could base claims of wrongful conduct”);
see also Weisheit v. Rosenberg & Assocs., LLC, No. CV JKB-17-0823, 2018 WL 1942196, at *34 (D. Md. Apr. 25, 2018) (some delay in moving to amend resulting from taking time to weigh the
implications of amending a complaint does not necessarily undermine a finding of diligence). As
such, the reason for Plaintiff’s delay supports a finding of diligence.
Second, Plaintiff was diligent by putting Defendant and the Court on notice about his
intention to amend the complaint. In his motion to compel filed in February 2022, Plaintiff
specifically stated that he was seeking race-related discovery in order to “determine if an amended
complaint is deemed necessary.” Dkt. 30 at 4. Courts often find that being transparent about the
intent to seek leave to amend supports a finding of diligence and good cause. See Design Basics,
LLC v. Precision Homes, Inc., No. 2:16-CV-179-PPS-JEM, 2018 WL 672150, at *2 (N.D. Ind.
Feb. 2, 2018) (“[Plaintiffs] were diligent in seeking the discovery responses they required and were
forthright with Defendant as to why. In light of that diligence . . . the Court finds that good cause
exists to allow the late request to amend.”); Tardif v. City of New York, No. 13-CV4056(KMW)(FM), 2016 WL 2343861, *5 (S.D.N.Y. May 3, 2016) (plaintiff failed to demonstrate
diligence for the purposes of Rule 16 in part because of her failure to apprise the court of her plans
to amend); Ceballos, 2014 WL 2582541, at *3 (plaintiff’s efforts constituted “reasonable
diligence” in part because he was transparent about his intent to seek leave to amend); Perkins v.
Fed. Fruit & Produce Co., No. 11-CV-00542-REB-KLM, 2011 WL 3820751, at *3 (D. Colo.
Aug. 29, 2011) (defendants were diligent in part because they informed the court and opposing
party that they intended to amend their answer to reflect the defense for which they had belatedly
sought discovery). This weighs in favor of finding that Plaintiff acted diligently.
Finally, there is good cause to grant Plaintiff’s motion for leave to amend because Plaintiff
would be entitled to raise, at minimum, the proposed § 1981 claim in parallel litigation. In other
words, denying leave to amend could unnecessarily exhaust judicial resources, cause duplicative
filings and efforts on behalf of the parties, and ultimately end in consolidation. See Patrick, 2015
WL 13668669, at *2 (“[Plaintiff] would be entitled to raise the FMLA claim in parallel litigation,
if not added here, creating the risk of added costs to the parties and the Court due to duplicative
efforts.”); Russell v. Swick Mining Servs. USA Inc., No. CV-16-02887-PHX-JJT, 2017 WL
1365081, at *3 (D. Ariz. Apr. 14, 2017) (“[F]orcing the filing of a second, partially parallel action
would not only be wasteful to the parties, but would unnecessarily exhaust judicial resources, cause
duplicative filings and efforts, and may be subject to consolidation.”). The Court finds that this
supports a finding of good cause.
Undue prejudice
Defendant argues that allowing Plaintiff’s amended complaint would be unduly prejudicial
because of the need to conduct additional discovery on Plaintiff’s new race-related claims,
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incurring additional time and expense and delaying the overall progress of litigation. Defendant
cites to three cases in support of its argument. Id. at 9-10. Plaintiff argues that none of the “extreme
facts” present in the cases cited by Defendant are present here and, as such, an extension of the
discovery deadline will not be unduly prejudicial. Pl.’s Reply at 8-9, Dkt. 45. Plaintiff also argues
that, regardless of the ruling on this motion, additional discovery will be necessary.
Plaintiff is correct that the three cases Defendant cites are vastly different from the facts of
this case and, therefore, do not adequately support Defendant’s position. In Philpot v. City of
Rockford, No. 06 C 50111, 2011 U.S. Dist. LEXIS 116985 (N.D. Ill. Oct. 11, 2011), the court
denied the plaintiff’s motion to amend on the basis that there “clearly [had] been undue delay.” Id.
at *3. More specifically, Plaintiff learned of the facts underlying the claim he sought to add nearly
four years prior to moving to amend and the fact discovery cutoff date had passed over a year ago.
Here, Plaintiff learned of the facts underlying the new claims sometime within the three to four
months prior to moving to amend. When he filed his motion, the fact discovery cutoff date was
still over a month away. Given these facts, the Court finds that this case does not support
Defendant’s argument.
In Jones v. GES Exposition Servs., No. 02 C 6243, 2004 U.S. Dist. LEXIS 17981 (N.D. Ill.
Sep. 3, 2004), the court denied the plaintiff’s motion to amend his complaint in order to add 15
claims against seven new defendants. The court reasoned that the plaintiff had known of the
grounds for the claims for years but offered no reasons to justify his delay, and it would have been
prejudicial to the defendants because the long time period at issue and substantial number of
proposed new defendants would make additional discovery time-consuming and expensive. Id. at
21-22. Similar to the court in Jones, the court in In re Ameritech Corp., 188 F.R.D. 280 (N.D. Ill.
1999), denied the defendant’s motion to file a second amended counterclaim because the defendant
did not have an adequate justification and because the new class allegations would entail complex
discovery. In this case, the Court has already found that Plaintiff did not unjustifiably delay
bringing his amended complaint (as explained above) and, unlike the parties in Jones and
Ameritech, he is seeking to add just three claims, all related to race discrimination. Being required
to defend against new allegations made in amended pleadings does not, by itself, constitute undue
prejudice. See Reardon v. Short-Elliott Hendrickson, Inc., No. 2:17-CV-154-JVB-PRC, 2018 WL
1603381, at *2 (N.D. Ind. Apr. 3, 2018) (“[B]eing required to defend against new allegations made
in pleadings is not the sort of prejudice that is undue in the context of amended pleadings. . . If
such prejudice were considered undue, then amended pleadings would rarely be permissible.”);
see also Tricarico v. Marion Gen. Hosp. Inc., No. 120CV00092WCLSLC, 2020 WL 6375686, at
*3 (N.D. Ind. Oct. 30, 2020). As the Seventh Circuit has explained:
Defense of a new claim obviously will require additional rounds of discovery, in
all probability interview of new witnesses, gathering of further evidence, and the
identification of appropriate legal arguments. All this necessarily takes time. The
parties must have an opportunity for preparation if trial is to be meaningful and
clear. Some delay of trial therefore is inevitable – a natural consequence of allowing
claims to be brought at all. In this sense, delay alone is not a sufficient basis for
refusing an amendment.

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Feldman v. Allegheny Int'l, Inc., 850 F.2d 1217, 1225 (7th Cir. 1988). As a result, the Court
concludes that Defendant will suffer limited, if any, prejudice from the Court allowing Plaintiff to
file his first amended complaint.
Futility
Defendant argues that Plaintiff’s motion to amend should be denied because his Title VII
and IHRA claims are untimely. Def.’s Resp. at 4, Dkt. 44. Defendant states that, although Plaintiff
filed his original complaint within the statutory 90-day period, these two new claims do not relate
back to the original complaint because there are no allegations of racial discrimination in the
original complaint. Id. at 4-7; see Fed. R. Civ. P. 15(c)(1)(B). Plaintiff contends that his proposed
Title VII and IHRA claims do relate back to the original complaint. Pl.’s Mot. at 5, Dkt. 39. He
states that there is a sufficient factual nexus between the original complaint, which already
contained certain facts related to racial discrimination, and the proposed amended complaint,
which would add these two claims and supplementary facts. Id. at 6.
Defendant does not argue that the third claim Plaintiff seeks to add (the § 1981 claim)
would be untimely. This is likely because § 1981 claims have a statute of limitations of four years
and they are not subject to the same administrative limitations as the Title VII and IHRA claims.
See Smith v. Univ. of Chicago Med. Ctr., No. 20-CV-03536, 2021 WL 54026, at *4 (N.D. Ill. Jan.
6, 2021). In other words, Defendant does not argue that there is any futility issue with the § 1981
claim and, as such, Defendant’s argument is only one of partial futility.
However, arguments of partial futility do not persuade this Court to deny the motion to
amend. Many courts grant a motion to amend where the plaintiff has put forth some allegations
that allow the proposed amendment to survive a motion to dismiss, even if other portions of it are
futile. See N. C. States Regl. Council of Carpenters Pension Fund v. DOW Acoustics, Inc., 20-CV994-SLC, 2021 WL 5988541, at *2 (W.D. Wis. June 14, 2021) (“[T]he possibility – even
likelihood – that defendant may prevail is not a reason to disallow part of the amended complaint
as futile.”); Schenke v. Griffith, 4:15-CV-75, 2016 WL 5852928, at *4 (N.D. Ind. Oct. 6, 2016)
(“The court should grant the plaintiff's motion to amend if the plaintiff has put forth some
allegations that allow the proposed amendment to survive a motion to dismiss, even if portions of
the complaint are futile.”); Wilson v. Arpaio, CV-14-01613-PHX-JAT, 2015 WL 3960879, at *3
(D. Ariz. June 30, 2015) (“Assuming that Defendants are correct that a portion of Plaintiff's claims
are invalid, this would not justify rejecting the entire amendment. . . A motion to amend is not the
juncture at which to present arguments of partial futility.”); see also Est. of Simpson v.
Bartholomew County Jail, 1:14-CV-01035-SEB, 2014 WL 5817319, at *3 (S.D. Ind. Nov. 7,
2014); Outley v. Moir, CV190019PHXJATJFM, 2021 WL 2228575, at *3 (D. Ariz. Feb. 8, 2021),
report and recommendation adopted as modified, CV1900019PHXJATJFM, 2021 WL 2024926
(D. Ariz. May 21, 2021); Cavanaugh ex rel. Cavanaugh v. Providence Health Plan, 699 F. Supp.
2d 1209, 1232 (D. Or. 2010). Additionally, many courts consider it more prudent for a defendant
who wishes to dismiss portions of an amended complaint to do so by filing a motion to dismiss or
motion for summary judgment. 2 See N. C. States, 2021 WL 5988541, at *2; Schenke, 2016 WL
2

Even courts considering futility arguments made in opposition to the entire proposed amended complaint
find a motion to dismiss to be better suited to address those arguments. See Complete Merchant Sols., LLC
v. Fed. Trade Commn., 219CV00963HCNDAO, 2020 WL 4192294, at *3 (D. Utah July 21, 2020); G.P.

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5852928, at *4; Wilson, 2015 WL 3960879, at *3. For these reasons, this Court concludes that
Defendant’s partial futility argument does not provide a basis for denying Plaintiff’s motion to
amend the complaint. Plaintiff’s motion for leave to amend his complaint is granted.
III. CONCLUSION
The Court grants Plaintiff’s motion for leave to amend his complaint. By May 12, 2022,
Plaintiff shall file the proposed amended complaint as a separately docketed entry.

Date: May 9, 2022

____________________________________
Lisa A. Jensen
United States Magistrate Judge

Muggie & Sons, LLC v. Hammon Plating Corp., 16-CV-05908-LHK, 2017 WL 5451755, at *4 (N.D. Cal.
Nov. 14, 2017); MW Builders, Inc. v. Fire Protec. Group, Inc., 16-2340-JAR, 2017 WL 3994884, at *3
(D. Kan. Sept. 7, 2017); Summerville v. Gregory, CIV.A. 14-7653 KM, 2015 WL 4623515, at *3 (D.N.J.
Aug. 3, 2015); Lauren v. PNC Bank, N.A., 2:14-CV-0230, 2014 WL 1884321, at *3 (S.D. Ohio May 12,
2014).

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