Lacer v. Toyota of Bowling Green
Filing
27
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 11/6/2018 granting 20 Motion to Amend/Correct. The amended complaint tendered at DN 20 -6 is herewith deemed filed of record. The parties are directed to confer and submit an agreed amended scheduling order by 11/13/2018. cc: Counsel(JWM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:18-CV-00013-GNS-HBB
DONNA LACER
PLAINTIFF
VS.
TOYOTA OF BOWLING GREEN
DEFENDANT
MEMORANDUM OPINION AND ORDER
Before the Court is the motion of Plaintiff Donna Lacer to amend her complaint, DN 20.
Defendant Toyota of Bowling Green has responded in opposition at DN 22 and Lacer has replied
at DN 26.
Nature of the Case
Lacer was employed as a Title Clerk for Toyota of Bowling Green for over ten years.
During her employment she experienced several health issues for which she requested and received
medical leave. She contends Toyota failed to inform her that her employment following leave was
protected under the Family Medical Leave Act (FMLA). She further contends that following her
most recent medical leave for eye surgery, she was laid off “because she had too many illnessrelated absences” (DN 1, p. 3). Because each of her prior medical absences were for treatment of
a serious medical condition, Lacer asserts that Toyota’s actions violated the FMLA, 29 U.S.C. §
2615.
Lacer’s Motion
Lacer styles her motion as one for leave to amend her complaint, however she recognizes
that doing so will require an extension of the deadline established in the scheduling order and, as
such, her motion is also one for amendment of the scheduling order.
Lacer’s discovery in the case included the deposition of Toyota owner David Stumbo.
Lacer believes his testimony constitutes an admission that, although she would otherwise be
eligible for reinstatement, because of Lacer’s lawsuit he is unwilling to consider reinstating her
and this provides a basis upon which to add a claim of retaliation to her complaint.
The deadline established in the scheduling order for amendment of pleadings was August
1, 2018 (DN 8). Lacer’s motion was filed on October 22, 2018, approximately three months after
the deadline expired. Noting that she must demonstrate good cause for extension of the deadline,
she argues that she only learned of the facts supporting the retaliation charge when she deposed
Stumbo on September 26, 2018. She contends that Stumbo and supervisor Shirley Lee testified
that Lacer could have returned to work after her layoff “when she got better” (DN 20-1, p. 2) and
that this “was new information to [Lacer]” (Id. at p. 5). During this same deposition she
characterizes Stumbo as testifying that he was no longer willing to allow her return to work because
she had filed the lawsuit. Lacer contends that she filed the motion to amend her complaint soon
after learning of the new information.
Lacer states that the amendment of the complaint will not prejudice Toyota as it will not
generate any additional discovery in the case nor does it change the overall theory of her case as it
is simply another aspect of her FMLA claim.
Toyota’s Response
Toyota mounts opposition to Lacer’s motion on three fronts. First, Toyota argues that
Lacer was dilatory in pursing discovery in the case and could have obtained Stumbo’s testimony
before the deadline to amend the pleadings expired. She contends that, although the complaint
was filed on January 23, 2018 she did not propound written discovery until April 3, 2018 and it
was not until July that she requested deposition dates in September or October.
Toyota’s second argument is that “Plaintiff blatantly mischaracterizes the testimony of both
Dave Stumbo and Shirley Lee in an effort to bolster he claim of retaliation” (DN 22, p. 3). In this
regard, Toyota contends that Lacer has taken inconsistent and irreconcilable positions as to the
facts. Thus, it appears Toyota argues that Lacer’s amendment of the complaint would be a futility.
Toyota’s final argument is that amendment of the complaint would be prejudicial due to
the impending deadline for its expert witness disclosures.1
Lacer’s Reply
In reply, Lacer disputes Toyota’s contention that she was dilatory in pursing discovery.
She notes that the scheduling order was entered on March 29, 2018 and she submitted her first set
of written discovery requests within two weeks. Once Toyota responded to the written discovery
on May 3, Lacer’s counsel wrote to Toyota’s counsel within a few days requesting deposition
dates. Lacer contends that, contrary to Toyota’s assertion to the contrary, she was pursuing
discovery in the case with reasonable diligence.
As to Toyota’s argument that amendment would be futile, Lacer argues that the testimony
does support her claim and, at this juncture in the case, must be accepted as true. Moreover, she
1
Toyota also filed a motion for an extension of time in which to complete discovery in light of Lacer’s
pending motion (DN 21). The undersigned granted the motion and continued the deadline generally pending
resolution of Lacer’s motion (DN 25).
notes that any conflict in her theories of the case does not prevent her from advancing inconsistent
theories, which are authorized under Fed. R. Civ. P. 8.
Lacer addresses Toyota’s prejudice argument by noting that it had moved for an extension
of the expert witness disclosure deadline and thereby demonstrated that any prejudice could
thereby be remedied.
Discussion
Resolving Lacer’s motion involves a two-part analysis. The first is whether the scheduling
order should be amended to extend the deadline for her amendment of her compliant. Should she
succeed in this step, the second inquiry is whether she should be permitted to amend her complaint.
A. Amendment of the scheduling order.
Once the scheduling order's deadline passes, a party “must first show good cause under
Rule 16(b) for failure to earlier seek leave to amend before a court will consider whether
amendment is proper under Rule 15(a).” See Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir.
2003); Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002); McLean v. Alere, Inc., No.
3:12-CV-566-DJH, 2015 WL 1638341, at *1 (W.D. Ky. April 13, 2015).
The Federal Rules of Civil Procedure commit to the district court's sound discretion
whether to amend a pretrial scheduling order. Fed. R. Civ. P. 16(b)(4). Specifically, Rule 16(b)(4)
provides that “[a] schedule may be modified only for good cause and with the judge’s consent.”
The Sixth Circuit has indicated “[t]he primary measure of Rule 16’s ‘good cause’ standard is the
moving party’s diligence in attempting to meet the case management order’s requirements.” Inge
v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (citation and internal quotations omitted);
see also, Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (A court “may modify a scheduling
order for good cause only if a deadline cannot reasonably be met despite the diligence of the party
seeking the extension.”). This “good cause” standard “primarily considers the diligence of the
party seeking the amendment. In other words, to demonstrate ‘good cause’ a party must show that
despite their diligence the time table could not reasonably have been met.” Woodcock v. Kentucky
Dept. of Corr., No. 5:12-CV-00135-GNS-LLK, 2016 WL 3676768, at *2 (W.D. Ky. July 6, 2016)
(quoting Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995)). “Another relevant
consideration is possible prejudice to the party opposing the modification.” Inge, 281 F.3d at 625
(citation omitted).
The Court must first find that the moving party proceeded diligently before considering
whether the nonmoving party is prejudiced, and only then to ascertain if there are any additional
reasons to deny the motion. Smith v. Holston Med. Grp., P.C., 595 F. App’x 474, 479 (6th Cir.
2014). Thus, the movant who fails to show “good cause” will not be accorded relief under Rule
16(b)(4) merely because the opposing party will not suffer substantial prejudice because of the
modification of the scheduling order. Interstate Packaging Co. v. Century Indemnity Co., 291
F.R.D. 139, 145 (M.D. Tenn. 2013) (citing Leary, 349 F.3d at 906, 909; Korn v. Paul Revere Life
Ins. Co., 382 F. App’x 443, 449 (6th Cir. 2010)).
Here, it appears that Lacer pursued discovery with reasonable diligence, but did not learn
of the factual basis which might support an additional claim for retaliation until she took Stumbo’s
deposition. She moved to amend the complaint within a reasonable amount of time after acquiring
the information. Other than the general prejudice inherent in defending an additional claim and
the prospect for some further modification of the schedule, Toyota has not articulated a prejudice
such that amendment of the scheduling order should be denied.
B. Amendment of the Complaint.
Pursuant to Fed. R. Civ. P. 15(a)(2), leave to amend a complaint shall be freely granted
“when justice so requires.” In assessing the interests of justice, the Court should consider several
factors, including Aundue delay in filing, lack of notice to the opposing party, bad faith by the
moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to
the opposing party, and futility of amendment.@ Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998)
(quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)); see also Colvin v. Caruso, 605 F.3d
282, 294 (6th Cir. 2010) (“A motion to amend a complaint should be denied if the amendment is
sought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party,
or would be futile.”).
In the Sixth Circuit, leave to amend a pleading may be denied on grounds of futility only
if the amended pleading could not withstand a Rule 12(b)(6) motion to dismiss. See Demings v.
Nationwide Life Ins. Co., 593 F.3d 486, 490 (6th Cir. 2010); Kottmyer v. Maas, 436 F.3d 684,
691-692 (6th Cir. 2006); Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).
“The test, therefore, is whether the proposed amended pleading, with all the factual allegations
accepted as true, states a claim for relief, not whether the claim is factually supportable or would
be sufficient to withstand a motion for summary judgment.” Cato v. Prelesnik, No. 1:08-cv-1146,
2010 WL 707336, at *2 (W.D. Mich. Feb. 22, 2010) (citing Rose, 203 F.3d at 420-421); see also
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (In order to survive a motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Additionally, a
proposed amendment will not survive a Rule 12(b)(6) motion to dismiss if no law supports the
claim made. Neitzke v. Williams, 490 U.S. 319, 327-328 (1989).
Toyota argues that Lacer misconstrues Stumbo’s testimony. Toyota’s argument thus goes
to the factual merits of Lacer’s proposed amended complaint. The question, however, is not
whether the amended claim could survive a motion for summary judgment. The question is
whether the amended complaint states a claim which could survive a motion to dismiss. The scope
of inquiry for purposes of determining whether amendment of a complaint is futile is confined to
an examination of the allegations set forth in the proposed amended complaint. “The test for
futility . . . does not depend on whether the proposed amendment could potentially be dismissed
on a motion for summary judgment; instead, a proposed amendment is futile only if it could not
withstand a Rule 12(b)(6) motion dismiss.” Rose at 421. Lacer’s tendered amended complaint
makes a factual statement that she took qualified leave under the FMLA for a serious medical
condition and that she suffered adverse employment action as a result. She further makes a factual
assertion that “Toyota failed to recall Lacer from layoff because she filed a complaint alleging
violations of the FMLA against Toyota” (DN 20-6, p. 4). It appears she has alleged a sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. As Lacer has
noted, Rule 8(d)(3) allows a party to “state as many separate claims or defenses as it has, regardless
of consistency.”
WHEREFORE, Plaintiff’s motion to amend her complaint, DN 20, is GRANTED and
the amended complaint tendered at DN 20-6 is herewith deemed filed of record.
The parties are directed to confer and submit an agreed amended scheduling order
revising the case schedule regarding the Defendant’s expert witness disclosure deadline and any
other deadlines the parties believe are impacted by this ruling. The parties are to tender the agreed
amended scheduling order by November 13, 2018. Should the parties find themselves unable to
agree on a revision to the scheduling order by that date, they are to contact Case Manager Kelly
Lovell to schedule a telephonic conference.
November 6, 2018
Copies: Counsel
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