Hatcher v. Cheng et al

Filing 85

ORDER DENYING 72 Motion for Reconsideration re 70 Order granting in part Defendants' Joint Motion to Dismiss the First Amended Complaint. Signed by Judge Nancy J. Rosenstengel on 10/24/14. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LAURA J. HATCHER,

)
)
Plaintiff,
)
)
vs.
)
)
BOARD OF TRUSTEES OF SOUTHERN )
ILLINOIS UNIVERSITY,
)
)
Defendant.
)

Case No. 13-CV-407-NJR-SCW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court on a Motion to Reconsider filed by Plaintiff,
Laura Hatcher, on August 8, 2014 (Doc. 72). In particular, Plaintiff asks the Court to
reconsider its previous Order (Doc. 70), wherein Counts 2 and 4 of Plaintiff’s first
amended complaint were dismissed with prejudice and without leave to amend.
Plaintiff requests that the dismissal be modified to a dismissal without prejudice and
that she be granted leave to file a second amended complaint. For the reasons stated
below, Plaintiff’s motion to reconsider is denied.
BACKGROUND
Plaintiff filed her original three-count civil rights complaint against Defendant
Board of Trustees of Southern Illinois University and Rita Cheng on April 26, 2013 (Doc.
2). Defendants moved to dismiss all three counts, and Plaintiff filed a response in
opposition to the motion to dismiss (Docs. 8, 12). On August 6, 2013, five days after

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Plaintiff filed her response to the motion to dismiss, the Court entered a scheduling
order giving Plaintiff until October 30, 2013, to amend her complaint (Doc. 16). One
day shy of the deadline to amend and before the Court had ruled on Defendant’s motion
to dismiss, Plaintiff filed a motion seeking leave to amend her complaint (Doc. 20). The
motion was granted, and Plaintiff filed her first amended complaint on November 26,
2013, alleging the same three counts that were in the original complaint, and adding a
fourth count against Kimberly Kempf-Leonard (Doc. 22).
Defendants filed a motion to dismiss the first amended complaint on December
23, 2013, and Plaintiff filed a response in opposition, as well as two supplements to her
response (Docs. 39, 41, 56, 63). Months ticked by without a ruling on the motion to
dismiss, and the case was reassigned to the undersigned on May 20, 2014. Upon
reassignment, Defendants’ motion to dismiss the amended complaint was set for
hearing on July 28, 2014 (Doc. 53). Following the motion hearing, the Court issued an
order granting in part and denying in part Defendants’ motion to dismiss the first
amended complaint (Doc. 70). Counts 2, 3, and 4 were dismissed with prejudice, and
Rita Cheng and Kimberly Kempf-Leonard were terminated as Defendants (Doc. 70).
The only claim that survived was Plaintiff’s claim for sex discrimination against
Defendant Board of Trustees (Count 1). The Court gave the parties one month to file
dispositive motions on the sex discrimination claim.
Plaintiff responded to this setback by asking the Court to reconsider the dismissal

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of Counts 2 and 4 and allow her to amend her complaint a second time (Doc. 72). 1 She
did not submit a proposed second amended complaint with her motion.
DISCUSSION
A. Legal Standard
Where, as here, a party seeks reconsideration not of a final judgment, but of an
interlocutory order, the motion is properly considered under Federal Rule of Civil
Procedure 54(b). FED. R. CIV. P. 54(b); Galvan v. Norberg, 678 F.3d 581, 587 n.3 (7th Cir.
2012). Rule 54(b) provides that an interlocutory order that does not adjudicate all
claims involving all parties to a suit “may be revised at any time before the entry of
judgment.”

FED. R. CIV. P. 54(b).

Motions to reconsider an interlocutory order

under Rule 54(b) are governed by the law of the case doctrine. Santamarina v. Sears,
Roebuck & Co., 466 F.3d 570, 571–72 (7th Cir. 2006); Pickett v. Prince, 207 F.3d 402, 407 (7th
Cir. 2000) (“Unlike the case in which a judgment is sought to be vacated . . . a motion to
reconsider a ruling is constrained only by the doctrine of the law of the case.”) “[T]he
law of the case doctrine embodies the notion that a court ought not to re-visit an earlier
ruling in a case absent a compelling reason, such as manifest error or a change in the law,
that warrants re-examination.” Minch v. City of Chi., 486 F.3d 294, 301 (7th Cir. 2007).
B. Analysis
Plaintiff is asking the Court to reconsider the dismissal of Counts 2 and 4 based on
what she considers to be an error. As noted above, the Court dismissed those Counts
with prejudice and without leave to amend. Plaintiff argues that she should be given
1

Plaintiff does not ask the Court to reconsider the dismissal of Count 3 (See Doc. 72).
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an opportunity to cure the pleading defects (Docs. 72, 80). After reviewing its previous
order, as well as the parties’ submissions, the Court concludes that Plaintiff has failed to
provide a compelling reason why it should reexamine its earlier ruling, and there was no
manifest error in its decision to dismiss Counts 2 and 4 with prejudice and without leave
to amend.
Plaintiff suggests that the Court should not have dismissed her claims with
prejudice because she is entitled to amend her complaint as a matter of course under
Federal Rule of Civil Procedure 15(a)(1). Plaintiff is incorrect. It is well-established
that, because Plaintiff had already filed one amended complaint, her right to amend as a
matter of right was extinguished. Agnew v. Nat'l Collegiate Athletic Ass’n, 683 F.3d 328,
347 (7th Cir. 2012); Fleming v. Rhymer, 79 F.3d 1150 (7th Cir. 1996) (“Fleming had already
amended his complaint once, and under Rule 15(a) was allowed to amend his complaint
again only by leave of the court or by written consent of the adverse party.”); Rodgers v.
Lincoln Towing Service, Inc., 771 F.2d 194, 203 (7th Cir.1985). Even if that was not true,
and Plaintiff could file her second amended complaint as a matter of right, that right
terminated twenty-one days after she was served with Defendants’ first motion to
dismiss. See FED. R. CIV. P. 15(a)(1). Therefore, Plaintiff was allowed to amend again
only with leave of Court.2 FED. R. CIV. P. 15(a)(2); Bank of Am., N.A. v. Knight, 725 F.3d
815, 819 (7th Cir. 2013) (“Rule 15(a) says that a party may amend its complaint once as a
matter of course. After that, leave to amend depends on persuading the judge that an
Plaintiff could also amend her complaint with the written consent of the opposing
party, but it is clear that Defendants will not give their consent (See Doc. 78). FED. R.
CIV. P. 15(a)(2).
2

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amendment would solve outstanding problems without causing undue prejudice to the
adversaries.”)
Rule 15(a)(2) provides that courts should “freely give leave when justice so
requires,” but “that does not mean it must always be given.” FED. R. CIV. P. 15(a)(2);
Hukic v. Aurora Loan Services, 588 F.3d 420, 432 (7th Cir. 2009).

Additionally, in

situations such as this, where a plaintiff seeks leave to amend the complaint after the
deadline for doing so as provided in the scheduling order, the plaintiff has to show more
than the interests of justice require permitting the plaintiff to amend the complaint.
See Adams v. City of Indianapolis, 742 F.3d 720, 734 (7th Cir. 2014) (quoting Alioto v. Town of
Lisbon, 651 F.3d 715, 719 (7th Cir. 2011)). The plaintiff also must make a heightened
showing of good cause to justify modifying the time limit for filing amended pleadings.
Adams, 742 F.3d at 734 (citing Alioto, 651 F.3d at 719).
At no point in this litigation—neither at the time the Court dismissed Counts 2
and 4, nor in the motion to reconsider that is presently before the Court—has Plaintiff
shown good cause for modifying the scheduling order or that the interests of justice
required permitting her to amend the complaint for a second time.
The Court turns first to Count 4 of the first amended complaint, in which Plaintiff
claimed that Defendant Kimberly Kempf-Leonard violated her First Amendment rights
by retaliating against her for exercising his freedom of speech. Plaintiff argues that the
Court erred in dismissing this claim because it went beyond addressing the adequacy of
her pleading and assessed the sufficiency of the evidence supporting her claim (Doc. 72).
This argument turns a blind eye to the Supreme Court’s decision in Garcetti v. Caballos,

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547 U.S. 410 (2006) and its progeny. Pursuant to that line of cases, an essential element
of Plaintiff’s claim is not just that she was engaged in protected speech, but that she was
speaking “as a citizen on a matter of public concern,” rather than speaking as a public
employee in the course of her job responsibilities. Garcetti, 547 U.S. at 418, 421–22;
Abcarian v. McDonald, 617 F.3d 931, 937 (7th Cir. 2010); Tamayo v. Blagojevich, 526 F.3d
1074, 1091 (7th Cir. 2008). A natural reading of the allegations in Plaintiff’s amended
complaint indicates that she spoke while discharging the responsibilities of her position,
not as a member of the general public (See Doc. 22, ¶¶ 41, 58, 59, 62, 64). Plaintiff does
not dispute this conclusion, or even assert that she was speaking as a citizen outside the
duties of her employment. Simply put, Plaintiff pleaded herself out of court on this
claim.
The Court next turns to Count 2 of the first amended complaint, in which Plaintiff
claimed that Defendant Board of Trustees retaliated against her for engaging in an
activity protected by Title VII. Plaintiff argues that the Court erred in dismissing this
claim because she had no reason to know that it was insufficiently pled until the Court
ruled on Defendants’ motion to dismiss her amended complaint (Doc. 80). She further
explains that “because the Court did not identify the pleading flaws until August 7, 2014,
Plaintiff has not had an opportunity to correct the flaws by adding additional facts in
Count 2” (Doc. 72).
Plaintiff’s explanation does not pass muster.

Plaintiff’s insinuation that her

hands were tied until the Court ruled on the motion to dismiss is simply untrue. By the
Court’s count, Plaintiff had three opportunities to plead Count 2 to state a claim upon
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which relief could be granted. Plaintiff obviously could have included the necessary
allegations from the outset. She also had the opportunity to amend Count 2 as a matter
of course within twenty-one days after Defendants pointed out the shortcomings in their
motion to dismiss the original complaint. However, Plaintiff did not see “the wisdom
of amending to meet the arguments in the motion.”
Committee Notes to 2009 Amendment.

FED. R. CIV. P. 15, Advisory

Additionally, after Defendants’ motion to

dismiss the original complaint was fully briefed, Plaintiff took advantage of her ability to
amend the complaint with leave of court. Yet she made no attempt to address the
deficiencies in Count 2 when she filed her first amended complaint. Instead, she waited
another nine months—until after discovery had closed, litigation was proceeding to
summary judgment, and the Court confirmed the deficiencies that were apparent on the
face of the complaint from the outset (which also had been pointed out to her by
Defendants on two occasions)—to try to amend.
The Court need not grant further leave to amend Count 2 when Defendants
would be unduly prejudiced at this late stage of the litigation, and Plaintiff had multiple
opportunities to state a claim upon which relief may be granted, but repeatedly failed to
do so. See Thompson v. Illinois Dep’t of Prof’l Regulation, 300 F.3d 750, 759 (7th Cir. 2002);
Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 347 (7th Cir. 2012). See also Park v.
Indiana Univ. Sch. of Dentistry, 2011 WL 1792717, at *2 (S.D. Ind. May 9, 2011) (“Under the
amended version of Rule 15(a), [Plaintiff] does not have the right to sit back, let the
Court explain the shortcomings of her Complaint, and then take a mulligan and amend
her Complaint.”)
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Furthermore, Plaintiff has done nothing to convince the Court that further
amendment would not be futile. She did not provide the Court with a draft of her
proposed second amended complaint, nor did she specifically describe what she
planned to allege to cure the deficiencies in Counts 2 and 4. “District judges are not
mind readers,” and without some explanation from Plaintiff, the Court cannot
meaningfully assess whether the amendment would cure the deficiencies in the
amended complaint or survive a third motion to dismiss. For this reason alone, the
Court was justified in dismissing her claims with prejudice and without leave to amend
her complaint for a second time. See Arlin-Golf, LLC, v. Village of Arlington Heights, 631
F.3d 818, 823 (7th Cir. 2011 (affirming dismissal of complaint with prejudice and without
leave to amend, in part, because plaintiffs did not present a proposed amended
complaint); James Cape & Sons Co. v. PCC Const. Co., 453 F.3d 396, 401 (7th Cir. 2006)
(affirming dismissal of complaint with prejudice where the district court “had no way of
knowing what the proposed amendment entailed”); Doe v. Howe Military Sch., 227 F.3d
981, 989-90 (7th Cir. 2000) (“District courts do not have to engage in guessing games
about proposed amendments, and the judge here was well within his discretion to deny
this motion.”); Harris v. City of Auburn, 27 F.3d 1284, 1287 (7th Cir.1994) (“[T]he failure to
tender an amended complaint with a motion to alter judgment may indicate a lack of
diligence or good faith.”).

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CONCLUSION
Plaintiff Laura Hatcher’s Motion to Reconsider (Doc. 72) is DENIED, and the
Court declines to grant Plaintiff leave to file a second amended complaint.
IT IS SO ORDERED.
DATED: October 24, 2014
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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