Camp v. Gregory, Inc. et al
Filing
61
MEMORANDUM AND ORDER granting 59 Motion for Order Extending Time Within Which to Conduct Discovery; granting 23 Motion to Amend the Scheduling Order; granting 23 Motion to Amend Complaint. Signed by Magistrate Judge Kenneth G. Gale on 1/30/2013. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASSIDY J. CAMP,
)
)
Plaintiff,
)
)
vs.
)
)
)
GREGORY, INC., et al.,
)
)
Defendants. )
______________________________ )
Case No. 12-1083-EFM-KGG
MEMORANDUM AND ORDER
Before the Court is Plaintiff’s “Motion to Amend the Scheduling Order and
for Leave to File First Amended Complaint.” (Doc. 23.) Defendants have
responded in opposition, arguing that Plaintiff’s motion fails under the standard set
out by Fed.R.Civ.P. 16 in addition to being futile. (Doc. 36.) In consideration of
judicial economy, the Court will also consider Plaintiff’s “Motion for Order
Extending Time Within Which to Conduct Discovery.” (Doc. 59.) After a careful
review of the submissions of the parties, the Court GRANTS Plaintiff’s motions.
BACKGROUND
Plaintiff filed the present employment discrimination and retaliation claims
against Defendants pro se using the form Complaint provided by the Clerk of
Court. (Doc. 1.) Plaintiff continued to represent himself at the time the Court
entered its Scheduling Order on October 10, 2012. (Doc. 14.) That Scheduling
Order contained a deadline of October 26, 2012, to file a motion for leave to join
additional parties or otherwise amend the pleadings. (Id., at 6.)
On October 26, 2012, Plaintiff contacted his current attorney to discuss
representation. (Doc. 24, at 3.) They were unable to meet until October 30, 2012,
by which time the deadline to file a motion to amend had passed. (Id.) Counsel
entered an appearance that same day (Doc. 19) and, after familiarizing herself with
the case, filed the present motion less than a week later.
DISCUSSION
I.
Motion to Amend.
Federal Rule 15(a) provides, in pertinent part, that “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave.” In
the absence of any apparent or declared reason, such as undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of amendment, leave to
amend should be freely given, as required by the federal rule. Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Frank v. U.S. West,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). A court is justified in denying a motion to
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amend as futile if the proposed amendment could not withstand a motion to
dismiss or otherwise fails to state a claim. Ketchum v. Cruz, 961 F.2d 916, 920
(10th Cir. 1992); see 6 Wright, Miller & Kane, FEDERAL PRACTICE AND
PROCEDURE § 1487 at 642 (1990).
A.
“Good Cause.”
As discussed above, the Scheduling Order was entered in this case on
October 10, 2012. (Doc. 14.) It included a deadline of October 26, 2012, to file
any motions to amend the pleadings. (Id., at 6.) The present motion was not filed
until after that deadline had passed, necessitating a request to amend the
Scheduling Order.
The “good cause” standard is employed when deciding motions to amend a
Scheduling Order. See Denmon v. Runyon, 151 F.R.D. 404, 407 (D. Kan. 1993)
(stating that a motion to amend filed after the deadline established in the
scheduling order must meet the standard of “good cause” under Fed. R. Civ. P.
16(b)).
When the deadline for amending pleadings set in
the scheduling order has passed, as is the case here,
Federal Rule of Civil Procedure 16(b)(4) is implicated.
Rule 16(b)(4) provides that a scheduling order ‘may be
modified only for good cause and with the judge's
consent.’
...
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. . . Judges in this District have consistently applied
a two-step analysis based on both Rule 16(b) and Rule
15(a) when deciding a motion to amend a complaint filed
past the scheduling order deadline. Thus, when a motion
to amend is filed beyond the scheduling order deadline,
this Court will first determine whether the moving party
has established ‘good cause’ within the meaning of Rule
16(b)(4) so as to justify allowing the untimely motion.
Only after determining that good cause has been
established will the Court proceed to determine if the
more liberal Rule 15(a) standard for amendment has been
satisfied.
To establish good cause under Rule 16(b)(4), ‘the
moving party must show that the amendment deadline
could not have been met even if it had acted with due
diligence.’ ‘Carelessness is not compatible with a
finding of diligence and offers no reason for a grant of
relief.’ Furthermore, the lack of prejudice to the
nonmovant does not show ‘good cause.’ A district
court's determination as to whether a party has
established good cause sufficient to modify a scheduling
order amendment deadline is within the court's
discretion, and will be reviewed only for an abuse of
discretion.
Likewise, the ultimate decision whether to allow a
proposed amendment addresses the sound discretion of
the court. In exercising its discretion, the court must
keep in mind that the Federal Rules of Civil Procedure
are designed to facilitate decisions on the merits rather
than on pleading technicalities. Indeed, the Tenth Circuit
has recognized 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.’ ’
Carefusion 213, LLC v. Professional Disposables, Inc., No. 09-2616-KHV-DJW,
2010 WL 4004874, at *3-4 (D.Kan. Oct. 12, 2010) (internal citations omitted).
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Counsel for Defendant argues that Plaintiff has failed to establish “good
cause” because “all of Plaintiff’s alleged facts in the proposed amendment existed
at the time Plaintiff filed his Complaint.” (Doc. 36, at 5.) While this may be so,
the fact remains that Plaintiff was representing himself pro se. The Court is
satisfied that Plaintiff may have been aware of certain facts, but may not have been
able to adequately gauge their relevance to the legal issues raised in his Complaint
without the assistance of counsel.
The Court is also satisfied that Plaintiff’s delay in bringing the current
motion was reasonable under the circumstances and was not unduly prejudicial to
Defendant. The motion was filed within days of Plaintiff procuring counsel and
less than two weeks after the deadline to amend contained in the Scheduling Order.
Defendants also argue that Plaintiff’s proposed pleading is futile because
Plaintiff has failed to “[plead] materially adverse employment action and
retaliatory conduct on the part of Defendants to support a claim of Title VII
discrimination or retaliation.” (Doc. 36, at 2-3.) Thus, the Court must also
determine whether the proposed pleading could withstand a motion to dismiss.
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In light of two recent Supreme Court cases, the Tenth Circuit has restated the
standard for ruling on motions to dismiss under Fed. R. Civ. P. 12(b)(6), and now
looks at what is described as a “plausibility” standard:
Turning to our standard of review and applicable legal
principles involving motions to dismiss, we review de novo a
district court's denial of a motion to dismiss a complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim. See Dias v. City and County of Denver, 567 F.3d 1169,
1178 (10th Cir.2009); Gann v. Cline, 519 F.3d 1090, 1092
(10th Cir.2008); Alvarado v. KOB-TV, LLC, 493 F.3d 1210,
1215 (2007). "We assume the truth of all well-pleaded facts in
the complaint, and draw reasonable inferences therefrom in the
light most favorable to the plaintiff[ ]." Dias, 567 F.3d at 1178
(alteration added). This assumption, however, is inapplicable
when the complaint relies on a recital of the elements of a cause
of action supported by mere conclusory statements. See
Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009).
* * * *
In reviewing a motion to dismiss, it is important to
note "Federal Rule of Civil Procedure 8(a)(2) provides
that a complaint must contain 'a short and plain statement
of the claim showing that the pleader is entitled to relief.'
" Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th
Cir.2008). In the past, we "generally embraced a liberal
construction of [this] pleading requirement," and held "a
complaint containing only conclusory allegations could
withstand a motion to dismiss unless its factual
impossibility was apparent from the face of the
pleadings...." Id. However, the Supreme Court has
recently "clarified" this standard, stating that "to
withstand a motion to dismiss, a complaint must contain
enough allegations of fact 'to state a claim to relief that is
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plausible on its face.' " Id. at 1247 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)). Specifically, "[f]actual
allegations must be enough to raise a right to relief above
the speculative level," Twombly, 550 U.S. at 555, so that
"[t]he allegations must be enough that, if assumed to be
true, the plaintiff plausibly (not just speculatively) has a
claim for relief." Robbins, 519 F.3d at 1247. Under this
standard, "a plaintiff must nudge his claims across the
line from conceivable to plausible in order to survive a
motion to dismiss." Smith, 561 F.3d at 1098. Therefore, a
plaintiff must "frame a 'complaint with enough factual
matter (taken as true) to suggest' that he or she is entitled
to relief." Robbins, 519 F.3d at 1247 (quoting Twombly,
550 U.S. at 556).
On the other hand, we have also held "granting a
motion to dismiss is a harsh remedy which must be
cautiously studied, not only to effectuate the spirit of the
liberal rules of pleading but also to protect the interests of
justice." Dias, 567 F.3d at 1178 (quotation marks and
citation omitted). "Thus, 'a well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof
of those facts is improbable, and that a recovery is very
remote and unlikely.' " Id. (quoting Twombly, 550 U.S. at
556).
In discussing the sufficiency of a complaint's
allegations, we look to two Supreme Court decisions,
Twombly and Iqbal, which provide the determinative test
for whether a complaint meets the requirements of
Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6) for
assessing whether it is legally sufficient to state a claim
for which relief may be granted.
Phillips v. Bell, No. 08-1042, 2010 WL 517629, * 3,4 (10th Cir., 2010). The
burden is on Defendant to establish the futility of Plaintiff’s proposed amendment.
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Pekareck v. Sunbeam Products., No. 06-1026-WEB, 2006 WL 1313382, at *3 (D.
Kan. May 12, 2006).
As stated above, Defendant argues that Plaintiff’s Amended Complaint fails
to “[plead] materially adverse employment action and retaliatory conduct on the
part of Defendants to support a claim of Title VII discrimination or retaliation.”
(Doc. 36, at 2-3.) While these claims may, in fact, fail to survive a subsequent
dispositive motion, the Court finds that it would be premature to foreclose these
claims prior to the parties engaging in appropriate and relevant discovery. As
such, the Court, in it’s sound discretion, holds that these new factual issues would
be better adjudicated through an amended motion to dismiss or a motion for
summary judgment as opposed to Plaintiff’s motion to amend. Plaintiff’s motion
to amend is, therefore, GRANTED. The amended pleading shall be filed in the
form attached to the motion on or before February 6, 2013.
II.
Motion for Extension of Time to Conduct Discovery (Doc. 59).
Plaintiff also moves the Court for an extension of five days of the time in
which to conduct discovery, from February 8, 2013, until February 13, 2013.
(Doc. 59.) Considering Plaintiff’s contention that he previously granted
Defendants two extensions of time, comprising almost three weeks, to file a motion
to compel, the Court finds Plaintiff’s request to be reasonable. Further, not only
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did Defendant request (Doc. 34) – and receive – an extension of time to respond to
Plaintiff’s Motion to Amend, discussed supra, but Defendants’ request was
unopposed by Plaintiff.
The Court notes that Defendants have not yet responded to this motion and
that the time to do so has not yet expired. Even so, the Court finds that a response
from Defendants would not be helpful in deciding this issue. As such, Plaintiff’s
motion (Doc. 59) is GRANTED.
IT IS THEREFORE ORDERED that Plaintiff’s “Motion to Amend the
Scheduling Order and for Leave to File First Amended Complaint” (Doc. 23) is
hereby GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s “Motion for Order Extending
Time Within Which to Conduct Discovery” (Doc. 59) is also GRANTED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 30th day of January, 2013.
S/ KENNETH G. GALE
Kenneth G. Gale
United States Magistrate Judge
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