Brez v. Fougera Pharmaceuticals, Inc. et al
MEMORANDUM AND ORDER granting 55 Plaintiff's Motion for Leave to File Second Amended Complaint. Plaintiff shall file her Second Amended Complaint on or before August 8, 2017. See Memorandum and Order for details. Signed by Magistrate Judge Gwynne E. Birzer on 8/1/17. (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FOUGERA PHARMACEUTICALS INC.,
Case No. 16-2576-DDC-GEB
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Leave to File her Second
Amended Complaint (ECF No. 55). For the reasons set forth below, Plaintiff’s motion is
Nature of the Case
Plaintiff, a Kansas resident, filed this employment action seeking damages for her
wrongful termination by Defendants, who she contends acted as her joint employers
during her one-year employment. Defendant Fougera Pharmaceuticals, Inc., (“Fougera”)
is a New York manufacturer of topical pharmaceutical products, and it claims to have
been Plaintiff’s sole employer, although it admits it is a subsidiary of defendant Sandoz,
The information recited in this section is taken from the pleadings (Compl., ECF No. 1; First
Am. Compl., ECF No. 23), and from the briefs regarding Plaintiff’s Motion to Amend (ECF
Nos. 55, 56, 59, 60). This background information should not be construed as judicial findings
or factual determinations.
Inc. (“Sandoz”) and that it hired Plaintiff as a District Manager in its PharmaDerm
division to work remotely from Kansas. From her hiring in February 2015 until her
termination in February 2016, Plaintiff was responsible for supervising pharmaceutical
sales representatives in Kansas, Indiana, Nebraska, Missouri, Kentucky and parts of
Illinois. Plaintiff contends the medical, dental, and prescription benefits through her
employment were provided by defendant Novartis Pharmaceuticals Corporation.
Plaintiff believes problems with her employment began in the spring of 2015,
when she began questioning the validity of certain expense reports and documents
submitted by sales representatives under her direction.
She reported the suspected
falsifications to her Regional Director and the Human Resources department. But instead
of taking action against the sales representatives involved in what Plaintiff perceived as
fraud, she claims Defendants began retaliating against her.
Plaintiff asserts she was paid less than her male counterparts, and she was not
allowed to hire a qualified female sale representative candidate but forced to hire a male
with no relevant experience. In addition to her gender claims, she contends during a
flight to a mandatory Managers’ Meeting in December 2016, her inner eardrum ruptured.
She sought medical treatment immediately, and the doctor recommended she not take a
return flight home due to the uncertainty about additional damage to her ear from a
subsequent flight. However, her boss—who was with her on the trip—told her to “suck it
up,” and she returned home by plane, which worsened her injury, resulting in permanent
hearing loss and accompanying health issues.
Plaintiff reported her injury to Human Resources and pursued a workers’
She also sought to discuss her disability and possible
accommodations, including a possible permanent position in Kansas City so she would
not be required to travel.
She claims she was terminated soon after seeking this
Although Defendants claim her termination was based upon her
inappropriate use of the company credit card, Plaintiff maintains personal use of the card
was a common practice among employees. She contends she repaid all amounts, her
similar credit card reports had previously been approved, and other employees charged
personal expenses to their company cards without termination.
Defendants deny they were Plaintiff’s joint employers and contend Fougera was
her sole employer. Fougera claims it terminated Plaintiff after discovering she charged
thousands of dollars in personal expenses to her corporate credit card in violation of
company policy, a reason entirely unrelated to Plaintiff’s gender or claimed disability.
Additionally, prior to her ear injury, Plaintiff had expressed interest in a District Manager
position in the Northwest District—which would require her to relocate to that part of the
country. Fougera offered the Northwest District position to Plaintiff, and claims it paid
her a $70,000 relocation payment on November 20, 2015. This relocation payment was
contingent upon Plaintiff’s relocation to the Northwest, which never occurred, and
Fougera contends Plaintiff has not repaid the relocation funds as required.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on or about February 29, 2016 and received a Notice of Right to
Sue on or about June 30, 2016. She filed this case on August 18, 2016, seeking damages
for gender discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et
seq. (“Title VII”); disability discrimination under the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. (“ADA”), and for wrongful termination in violation of Kansas
public policy for pursuing her workers’ compensation claim and for reporting the
fraudulent conduct of the sales representatives (ECF No. 1).
Both Fougera and Sandoz filed Counterclaims for breach of contract and unjust
enrichment, based upon Plaintiff’s failure to repay the relocation bonus, her failure to
repay certain quarterly incentive payments, and her failure to reimburse Fougera for
personal expenses charged to her corporate credit card (ECF No. 15).
After defendants Fougera and Sandoz filed their Counterclaims, Plaintiff filed
another charge of discrimination with the EEOC, alleging retaliation by Defendants in
violation of Title VII. Plaintiff received her Notice of Right to Sue on the retaliation
claim on February 6, 2017.
Plaintiff initially filed her lawsuit against four defendants: Fougera; Sandoz;
PharmaDerm, LLC; and Novartis Pharmaceuticals, Inc. (ECF No. 1). Plaintiff later
voluntarily dismissed PharmaDerm (ECF No. 13), and defendants Sandoz and Fougera
filed their Answer and asserted Counterclaims (ECF No. 15). Plaintiff filed her First
Amended Complaint (ECF No. 23) on October 31, 2016, which replaced former
Pharmaceuticals Corporation (“Novartis”). On December 7, 2016, the Court entered a
Scheduling Order setting deadlines for mediation, fact discovery, and motion practice,
and established a January 30, 2017 deadline for motions to amend the pleadings (ECF
No. 35). All three defendants answered the Amended Complaint (ECF Nos. 37, 38), and
the case progressed to active discovery. After the parties jointly requested extensions of
the existing deadlines (ECF No. 57), the Court issued a Revised Scheduling Order (ECF
No. 58). The parties recently requested a Second Revised Scheduling Order (Joint
Motion, ECF No. 66; Order, ECF No. 67), which extended the fact discovery deadline to
August 25, 2017, and the dispositive motion deadline to September 30, 2017.
Just before the first revision to the schedule, Plaintiff filed her Motion for Leave to
File Second Amended Complaint (ECF No. 55), seeking to add her claim for retaliation,
claiming Defendants filed their counterclaims against her in retaliation for her complaints
of discrimination. All Defendants oppose the amendment (ECF No. 59), all related
briefing is complete, and the issue of amendment is ripe for decision.
Motion to Amend (ECF No. 55)
Fed. R. Civ. P. 15 establishes the standard for amending pleadings, while Rule 16
provides the general framework for pretrial management. Both rules are implicated by
Plaintiff’s motion, with Rule 15 providing the starting point.
Fed. R. Civ. P. 15
The standard for permitting a party to amend his or her complaint is well
established. A party may amend its pleading as a matter of course under Fed. R. Civ. P.
15(a)(1), either before the responding party answers or within 21 days after service of a
responsive pleading. However, in cases such as this, where the time to amend as a matter
of course has passed, without the opposing party’s consent a party may amend her
pleading only by leave of the court under Rule 15(a)(2).
Rule 15(a)(2) provides leave “shall be freely given when justice so requires,” and
the decision to allow an amendment is within the sound discretion of the court.2 The
court considers a number of factors in deciding whether to allow an amendment,
including timeliness, prejudice to the other party, bad faith, and futility of amendment.3
In exercising its discretion, the court must be “mindful of the spirit of the federal rules of
civil procedure to encourage decisions on the merits rather than on mere technicalities.”4
The Tenth Circuit acknowledged that Rule 15 is intended “to provide litigants ‘the
maximum opportunity for each claim to be decided on its merits rather than on
procedural niceties,’”5 especially in the absence of bad faith by an offending party or
prejudice to a non-moving party.6
See J. Vangel Elec., Inc. v. Sugar Creek Packing Co., No. 11–2112–EFM, 2012 WL 5995283,
at *2 (D. Kan. Nov. 30, 2012) (citing Panis v. Mission Hills Bank, 60 F.3d 1486, 1494 (10th Cir.
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)); see also Monge v. St. Francis Health Ctr., Inc., No. 12–2269–EFMJPO, 2013 WL 328957, at *2 (D. Kan. Jan. 10, 2013) report and recommendation adopted, 2013
WL 328986 (D. Kan. Jan. 29, 2013).
Hinkle v. Mid-Continent Cas. Co., No. 11–2652–JTM-KMH, 2012 WL 2581000, at *1 (D.
Kan. July 3, 2012) (citing Koch v. Koch Indus., 127 F.R.D. 206, 209 (D. Kan. 1989)).
Carefusion 213, LLC v. Professional Disposables, Inc., No. 09–2616–KHV–DJW, 2010 WL
4004874, at *4 (D. Kan. Oct. 12, 2010) (citing Minter, 451 F.3d at 1204) (quoting Hardin v.
Manitowoc–Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982)).
See AK Steel Corp. v. PAC Operating Ltd. P'ship, No. 15-9260-CM-GEB, 2016 WL 6163832,
at *4 (D. Kan. Oct. 24, 2016) (collecting cases; internal citations omitted).
Fed. R. Civ. P. 16
When a proposed amendment is offered after the deadline to amend pleadings has
passed, as in this case, Fed. R. Civ. P. 16(b)(4) comes into play. This rule provides that a
“schedule may be modified only for good cause and with the judge’s consent.” When
considering a motion to amend the pleadings filed past the scheduling order deadline,
“judges in this District have consistently applied a two-step analysis based on both Rule
16(b) and Rule 15(a).”7 In such cases, the court “first determines whether the moving
party has established good cause within the meaning of Rule 16(b)(4) so as to justify
allowing the untimely motion.”8 Only after finding good cause has been shown will the
court proceed to the second step and evaluate whether the broader Rule 15(a) standard for
amendment has been satisfied.
“Good cause” under Rule 16(b)(4) requires the moving party to “show that the
amendment deadline could not have been met even if it had acted with due diligence.”9
“Carelessness is not compatible with a finding of diligence and offers no reason for a
grant of relief.”10 The party requesting an untimely amendment “is normally expected to
show good faith on its part and some reasonable basis for not meeting the deadline.”11
The district court has discretion to decide whether the movant has established good cause
sufficient to modify the scheduling order deadlines, and such a decision is reviewed only
Carefusion 213, 2010 WL 4004874, at *3 (citations omitted).
Livingston v. Sodexo & Affiliated Co., No. 11-4162-EFM-KGS, 2012 WL 2045292, at *1 (D.
Kan. June 6, 2012) (citing Deghand v. Wal–Mart Stores, Inc., 904 F. Supp. 1218, 1221 (D. Kan.
1995) (internal citations omitted)).
for abuse of discretion.12 With these standards in mind, the Court evaluates Plaintiff’s
Plaintiff’s proposed Second Amended Complaint does not significantly differ
from her previous pleading. She seeks only to amend her complaint to add a retaliation
claim, because in addition to the retaliation she claims to have experienced during her
employment, she asserts Defendants filed their counterclaims in retaliation for her
complaints of discrimination. She claims she did not unjustly delay in seeking the
amendment, and because depositions had not yet been held when she filed her motion,
she argues Defendants will have adequate opportunity to examine her and conduct any
discovery on the new retaliation claim. Defendants oppose the amendment because they
believe the retaliation claim is futile. The arguments of the parties are addressed in turn.
As an initial matter, although neither party addresses Rule 16’s “good cause”
standard, because Plaintiff’s motion was filed after the Scheduling Order deadline, the
Court briefly addresses the issue. Plaintiff did not receive her Notice of Right to Sue
from the EEOC—a prerequisite to her retaliation claim13—until after the deadline to
Carefusion 213, 2010 WL 4004874, at *3 (citations omitted).
See Mackley v. TW Telecom Holdings, Inc., 296 F.R.D. 655, 665 (D. Kan. 2014) (discussing
“Federal courts lack jurisdiction to hear an employment discrimination suit based upon Title VII
. . . when the party making the charge of discrimination fails to exhaust administrative remedies”
by presenting a claim to the EEOC or authorized state agency and receiving a right-to-sue letter
based on that charge) (citing Richardson v. Rusty Eck Ford, Inc., No. 12–1313–KHV, 2013 WL
amend had passed. Therefore, even if Plaintiff had acted with due diligence, she could
not have met the deadline.14 Finding this to be a reasonable basis for her belated filing,
and without opposition from Defendants, the Court finds Plaintiff demonstrates good
cause under Rule 16.
Upon a finding of good cause under Rule 16, the Court must assess whether the
standards for amendment under Rule 15(a)(2) have been satisfied.
Of the factors
analyzed by the Court when considering amendment, Defendants oppose Plaintiff’s
amendment only on the basis of futility.
As the party opposing amendment, Defendants bear the burden of establishing its
futility.15 “A proposed amendment is futile if the complaint, as amended, would be
subject to dismissal.”16 The proposed pleading is then analyzed using the same standard
as a motion to dismiss under Fed. R. Civ. P. 12(b)(6). When utilizing this standard, “the
court must accept as true all well-pleaded factual allegations and view them in the light
most favorable to the pleading party.”17 Only if the court finds “the proposed claims do
1704930, at *4 (D. Kan. Apr. 19, 2013); Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304,
1317 (10th Cir. 2005)).
Neonatal Prod. Grp., Inc. v. Shields, No. 13-2601-DDC-KGS, 2015 WL 1957782, at *2
(citing Boykin v. CFS Enter., Inc., No. 08–2249–CM–GLR, 2008 WL 4534400, at *1 (D. Kan.
Oct. 6, 2008)).
Farmers Bank & Trust, N.A. v. Witthuhn, No. 11-2011-JAR, 2011 WL 5920941, at *2 (D.
Kan. Nov. 28, 2011) (citing Jefferson Cnty. Sch. Dist. No. R–1 v. Moody's Investors's Servs.,
Inc., 175 F.3d 848, 859 (10th Cir. 1999)); see also Neonatal Prod. Grp., 2015 WL 1957782, at
*2 (internal citations omitted).
Carefusion 213, 2010 WL 4004874, at *5 (citing Anderson v. Suiters, 499 F.3d 1228, 1238
(10th Cir. 2007) (internal citations omitted)).
not contain enough facts to state a claim for relief that are plausible on their face or the
claims otherwise fail as a matter of law”18 should the court find the amendment futile.
Defendants argue the amendment is futile if the complaint, as amended, would be
subject to dismissal for any reason, including if the amendment would fail on summary
They contend Plaintiff’s proposed retaliation claim would not survive a
motion for summary judgment because their counterclaims have a strong non-retaliatory
basis in both fact and law. Defendants maintain Plaintiff admitted to the facts that
support the non-retaliatory basis for their counterclaims, and attach exhibits to their
opposition brief to support their factual contentions. And, because the counterclaims
arise out of the same events which led to Plaintiff’s lawsuit, the counterclaims are
compulsory, and Defendants had no choice but to file them or risk waiving those claims.
To support their belief that a review of the proposed amendment with a summary
judgment standard is appropriate, Defendants cite two Tenth Circuit cases, which this
Court finds distinguishable. First, in the 2001 case of Watson v. Beckel,19 the appellate
court applied a summary judgment standard to its review of the denial of leave to amend,
but the district court had already granted summary judgment on one claim in the case and
was reviewing both the summary judgment ruling and the amendment issue together.20
Essentially, the uncontroverted facts of the case—already developed in the record—led to
Id. (citing Raytheon Aircraft Co. v. U.S., 501 F. Supp. 2d 1323, 1327 (D. Kan. 2007); see also
Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001).
Id. at 1243-44.
summary judgment on plaintiff’s initial due process claim, which led the district and
appellate courts to conclude an amendment to add an equal protection claim would fail as
a matter of law.21
In Bauchman for Bauchman v. W. High Sch.,22 a 1997 case, the district court
dismissed plaintiff’s original complaint for constitutional violations on the pleadings for
numerous reasons, and dismissed her claims for declaratory and injunctive relief as moot.
In an attempt to salvage her case, plaintiff sought to amend her complaint to include a
new theory of defendant’s unconstitutional conduct. The district court deferred ruling on
the motion to amend until the parties had the opportunity to conduct discovery on the
new theory, and considered the parties’ post-discovery evidence when denying the
motion to amend.23
Although the plaintiff argued the court improperly applied a
summary judgment standard to her motion to amend, the appellate court found her
argument disingenuous, since she participated in the permitted discovery and herself
presented supporting materials for the court’s consideration, and upheld the district
court’s denial of the amendment.24
Not only are these cases distinguishable, but Courts in this district have generally
confined their futility analysis to a Rule 12(b)(6) analysis—as opposed to a Rule 56
summary judgment analysis—and refused to examine evidence or affidavits, outside the
pleadings, when determining futility of amendment.
For example, in Szczygiel v.
Id. at 1244.
Bauchman for Bauchman v. W. High Sch., 132 F.3d 542 (10th Cir. 1997)
Id. at 558.
Id. at 562.
Kansas,25 the court acknowledged the potential strength of the defendant’s argument,
under a summary judgment standard, but clearly distinguished its analysis on the motion
to amend from a later summary judgment standard. Likewise, in Walker v. Axalta
Coating Sys., LLC,26 the court found the proposed amendment not clearly frivolous, and
noted defendants were not “precluded from reasserting their arguments in a motion under
Rule 12(b)(6) or Rule 56.”27
Here, the parties certainly disagree on the interpretation of the limited facts
currently before the Court. Defendants contend Plaintiff admitted to both signing the
agreement requiring her to repay the relocation payment, and violating the company’s
corporate credit card policy, and provide documentary evidence to support their claims as
exhibits to their response brief.
Plaintiff presented only the proposed amended
complaint, and although Defendants included other exhibits, as stated, the Court
generally disregards those exhibits when applying the Rule 12(b)(6) plausibility standard
to the potential amendment.
Even if the Court were inclined to consider the information presented by
Defendants, Defendants do not contend Plaintiff’s Second Amended Complaint is not
well-pleaded; rather, they ask the Court to apply a summary judgment standard to facts
and a record which are not currently developed. Discovery is not complete, and at the
time of filing the motion, depositions had not yet begun. The parties interpret the
Szczygiel v. Kansas, No. 14-CV-3011-EFM, 2015 WL 630570, at *3, n. 23.
Walker v. Axalta Coating Sys., LLC, No. 14-2105-JAR, 2015 WL 685834, at *3 (D. Kan. Feb.
18, 2015) (finding the issue of punitive damages more appropriately addressed at a later stage in
the case by the presiding U.S. District Judge).
Id. at *3.
currently-available facts very differently, and this Court simply does not have adequate
information before it by which to definitively conclude Plaintiff’s retaliation claim could
not survive summary judgment—especially because the Court is required to examine the
factual record and all reasonable inferences therefrom in the light most favorable to
Plaintiff.28 The issue in resolving a Rule 12(b)(6) motion to dismiss, or the futility of a
proposed amendment, is “not whether [the] plaintiff will ultimately prevail, but whether
the claimant is entitled to offer evidence to support the claims.”29
Exercising its discretion, and recognizing Defendants will have an opportunity to
challenge the sufficiency of the retaliation claim through a later dispositive motion,30 the
Court will not deny Plaintiff’s proposed amendment on the basis of futility. Permitting
the filing of the proposed amendment “comports with the liberal amendment policy of
Fed. R. Civ. P. 15(a)”31 where Defendants may later challenge the claim and particularly
in light of the lack of prejudice to Defendants discussed below.
Although the parties confront the issue of futility in their briefs, the other factors
weighed by the Court, such as prejudice to the non-moving party and timeliness of
See Carefusion 213, 2010 WL 4004874, at *5 (citing Anderson v. Suiters, 499 F.3d 1228, 1238
(10th Cir. 2007) (internal citations omitted) (discussing the standard for review of a Rule
12(b)(6) motion to dismiss); see also Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th
Cir. 1988) (discussing the review of pleadings and evidence at summary judgment).
Carefusion 213, 2010 WL 4004874, at *5.
See, e.g., Carefusion 213, 2010 WL 4004874, at *6 (finding “Defendants' arguments are better
suited for resolution on a motion for summary judgment”); see also Quality Time, Inc. v. W.
Bend Mut. Ins. Co., 12-1008-JTM-GLR, 2012 WL 2872226, at *2 (D. Kan. July 12, 2012)
(citing Tommey v. Computer Sciences Corp., No. 11–2214–EFM, 2012 WL 646022, at *2 (D.
Kan. Feb. 28, 2012).
Quality Time, Inc., 2012 WL 2872226, at *2.
amendment, were not so thoroughly addressed. Defendants expend their efforts arguing
futility, but ignore Plaintiff’s contentions that her request is timely and Defendants would
suffer no prejudice by allowing her to amend her pleading. Despite the lack of attention
to each, the Court briefly considers each topic.
Most importantly, Defendants fail to present any argument regarding the prejudice
they might face if the amendment were permitted. As the party opposing the amendment,
Defendants bear the burden to demonstrate undue prejudice within the meaning of Rule
15.32 Under Rule 15, “undue prejudice” means “undue difficulty in prosecuting or
defending a lawsuit as a result of a change of tactics or theories on the part of the
movant.”33 While any amendment invariably causes some “practical prejudice,” undue
prejudice means that the amendment “would work an injustice to the defendants.”34
Given Defendants’ complete disregard of this “most important factor,”35 the Court
finds Defendants wholly failed to demonstrate prejudice sufficient to prohibit the
proposed amendment. And, considering the nature of the new claim and the procedural
posture of the litigation, the Court struggles to discern any true injustice which would
occur from adding the retaliation claim. The majority of facts supporting the retaliation
claim arise from the same occurrences as Plaintiff’s other claims, and much of the
Carefusion 213, 2010 WL 4004874, at *4 (internal citations omitted).
Id. (citing U.S. v. Sturdevant, No. 07–2233–KHV–DJW, 2008 WL 4198598, at *3 (D. Kan.
Sept. 11, 2008) (citing Minter, 451 F.3d at 1208; Jones v. Wildgen, 349 F. Supp. 2d 1358, 1361
(D. Kan. 2004))).
Id. (citing Sturdevant, 2008 WL 4198598, at *3; other internal citations omitted).
Minter, 451 F.3d at 1207 (noting, “The second, and most important, factor in deciding a
motion to amend the pleadings, is whether the amendment would prejudice the nonmoving
discovery is likely to have already occurred. At the time of Plaintiff’s motion, discovery
was ongoing and the parties had not yet scheduled depositions (although depositions have
since been conducted).36
The parties recently received an extension of their fact
discovery deadline to August 25, 2017 (see Joint Motion, ECF No. 66, and Order, ECF
No. 67), which will provide the parties with adequate time to conduct any additional
discovery and Defendants with sufficient opportunity to fully defend the new claim.
Additionally, the Court does not find the timeliness of the amendment rises to such
an offensive level as to prohibit its filing. The timeliness of amendment was examined
above in the context of good cause, and the Court does not repeat that analysis here.
Likewise, as noted in the paragraph above, the current procedural posture of the case
weighs in Plaintiff’s favor. Defendants did not raise the issue of timeliness, and for all of
these reasons, the Court finds the amendment timely, despite Plaintiff’s belated request.
Equally applicable to all of Defendants’ futility arguments is a singular concern:
their arguments apply a heightened standard to the amended pleading.
evidentiary record of this case is undeveloped, the facts are controverted, and this case is
not before the Court on a dispositive motion. Applying the standards for consideration of
amendment under Rule 15, and accepting all Plaintiff’s factual allegations as true, the
Court cannot deny the amendment based upon Defendants’ futility contentions. Apparent
The parties’ recent Joint Motion reveals the parties have since conducted multiple depositions,
but believe they need to conduct at least one more deposition and exchange certain documents
relating to issues which arose during deposition. (ECF No. 66, ¶¶ 7, 9.)
factual disputes exist, and at this stage of proceedings, the amended pleading “raise[s] a
reasonable expectation that discovery”37 will further clarify the issues.
pleading standard, rather than the more stringent standard suggested by Defendants, the
Court cannot, at this juncture, definitively find Plaintiff’s proposed amendment is futile.
Additionally, Defendants failed to demonstrate any amount of prejudice which
may occur as a result of the amendment.
Therefore, finding Plaintiff’s proposed
amendment not clearly futile, and would cause no undue prejudice, the Court prefers this
case to proceed on its full merits.38 In the interests of justice, the Court will allow
Plaintiff to amend her Complaint.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Amend the
Complaint (ECF. 55) is GRANTED. Plaintiff shall file her Second Amended Complaint
on or before August 8, 2017.
As requested by Plaintiff, and supported by ample
authority39, the filing date of the Second Amended Complaint is deemed the date of filing
of her motion to amend: May 1, 2017. Defendants must answer the Second Amended
Complaint within 14 days of its filing.
The parties are strongly cautioned future
Twombly, 550 U.S. at 556.
See Hinkle, 2012 WL 2581000, at *1 (citing Koch, 127 F.R.D. at 209).
Plaintiff seeks this specific filing date in order to have filed her retaliation claim within the 90
days required by her Notice of Right to Sue from the EEOC. See Kwang I. Lee v. City of
Leawood, Kansas, No. 08-2242-KHV, 2009 WL 2106104, at *3 (D. Kan. July 16, 2009) (noting
“an amended complaint is deemed filed on the date plaintiff seeks leave to amend”) (citing
Wallace v. Sherwin Williams Co., Inc., 720 F. Supp. 158, 159 (D. Kan. 1988); Farm Credit Bank
of Wichita v. FCB Ltd. P'ship, 825 F. Supp. 932, 935 (D. Kan. 1993) (for purposes of statute of
limitations, amended complaint that adds new parties to diversity action deemed filed on date
motion to amend filed, not date that plaintiff actually files complaint after receiving leave of
court); Ramirez v. City of Wichita, Kan., No. 92–1437, 1994 WL 114295, at *2 (D. Kan. March
amendments, although not outright prohibited, will be met with considerable scrutiny40
given the previous opportunities to articulate the parties’ claims.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 1st day of August, 2017.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
See Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citing Castleglen, Inc. v.
Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir.1993); Foman, 371 U.S. at 182) (noting
“failure to cure deficiencies by amendments previously allowed” is one reason the court may use
to deny leave to amend).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?