Cochran et al v. Jefferson County Public Schools Board of Education et al

Filing 50

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 6/20/2016. The Motion to Amend/Correct Complaint (DN 35 ) is GRANTED. The Clerk is Ordered to detach and file the Amended Complaint (DN 35 -2). It is further Ordered that the Motion for Leave to File Sur-Reply Memorandum (DN 41 ) is GRANTED. The Clerk is Ordered to detach and file the sur-reply (DN 41 -1). cc: Counsel(JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-751-GNS-CHL

JEANNEAN COCHRAN, et al.,

Plaintiffs,

v.
JEFFERSON COUNTY PUBLIC SCHOOLS
BOARD OF EDUCATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Background
Before the Court is a Motion to Amend Complaint (DN 35) filed by plaintiffs. In the
Motion to Amend Complaint, plaintiffs describe the various ways in which they seek to amend
the complaint and the reasons for those amendments. Defendants oppose the Motion to Amend
Complaint only to the extent that it seeks to add Count III – AFSCME’s and Council 962’s
Chargeable Expenses Violate 42 U.S.C. § 1983 and the United States Constitution. (DN 37.)
More specifically, Count III of the proposed amended complaint alleges that defendants’
“seizure of compulsory fees for unconstitutional purposes violate the rights of Plaintiffs and
members of the proposed class under the First and Fourteenth Amendments to the United States
Constitution in that Plaintiffs and class members have been required to pay compulsory fees for
AFSCME’s and Council 962’s constitutionally nonchargeable purposes.” (DN 35-2, p. 29.)
Defendants argue that Count III is unsupported by any factual allegations in the proposed
amended complaint and thus fails to state a claim under the standard enumerated in Ashcroft v.
Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). As a
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result, defendants argue that the Motion to Amend Complaint should be denied on futility
grounds insofar as it seeks to add Count III.
In their reply, plaintiffs counter with several arguments. First, plaintiffs aver that the
Court must consider the principles surrounding, and the elements needed to prove, Count III.
Plaintiffs assert that “in cases involving the chargeability of a union’s fee, nonmember plaintiffs
need only generally allege their challenge.” (DN 39, p. 6.) Plaintiffs assert that this is because
the union retains the burden of proof as to whether charges are properly chargeable, and
furthermore, the unions possess the facts and records used to determine the expenses chargeable
to nonmembers; thus, basic considerations of fairness compel that the unions, not the individual
members, bear the burden of proving the chargeability of their fees and that nonmembers need
only raise a general objection. Plaintiffs further assert that they are not required to plead the
specific expenditures they challenge until after discovery is conducted. Thus, although plaintiffs
recognize the standard enumerated in Iqbal/Twombly, they appear to argue that this particular
claim is an exception. Second, plaintiffs argue that they have alleged sufficient facts regarding
the context of their chargeability allegations to satisfy the Iqbal/Twombly standard. For example,
plaintiffs state that the unions “improperly list ‘[d]efending AFSCME against efforts by other
unions or organizing committees to gain representation rights in units represented by AFSCME
as chargeable . . . when in fact it is not.’” (DN 39, p. 9 [quoting paragraph 48(a) of the proposed
amended complaint].) Plaintiffs also allege that the Revised Notice described in the proposed
amended complaint leads nonmembers to believe that certain expenses are or may be lawfully
chargeable, even if several of those expenses, as described, are not. (Id.)

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The Court notes that defendants have filed a Motion for Leave to File Sur-Reply
Memorandum (DN 41). Whether to permit a party to file a sur-reply is a matter left to the trial
court’s discretion. See Key v. Shelby County, 551 F. App’x 262, 264 (6th Cir. 2014) (citing
Eng’g Mfg. Servs., LLC v. Ashton, 387 F. App’x 575, 583 (6th Cir. 2010); Tanielian v.
DaimlerChrysler Corp., 108 F. App’x 386, 387 (6th Cir. 2004)). Plaintiffs did raise a futility
argument in their memorandum supporting the Motion to Amend Complaint, if only briefly.
And defendants’ response was solely focused on the futility argument. Plaintiffs rightfully
responded to those arguments in their reply with more substantive arguments regarding futility.
While the Court finds that defendants are not necessarily entitled to a sur-reply, it has read the
sur-reply and has found it helpful and to the point – it addresses arguments that defendants did
not previously have the occasion to respond. For these reasons, and because the Court quotes
from part of the sur-reply below, the Court finds that the Motion for Leave to File Sur-Reply
Memorandum should be granted.
Discussion
Rule 15(a)(2) of the Federal Rules of Civil Procedure Rule 15(a)(2) commands the Court
to freely grant leave to amend when justice so requires. Colvin v. Caruso, 605 F.3d 282, 294
(6th Cir. 2010); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995). Additionally, the Sixth
Circuit has stated Rule 15(a)(2) sets forth a Aliberal policy of permitting amendments to insure
the determination of claims on their merits.@ Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir.
1987). In evaluating the interests of justice, the Court should consider several factors, including
A[u]ndue 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
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party, and futility of amendment.” Coe, 161 F.3d at 341(quoting Brooks v. Celeste, 39 F.3d 125,
130 (6th Cir. 1994)) (internal quotation marks omitted).
The Court finds that the Motion to Amend Complaint should be granted. First, the Court
notes that – other than the addition of Count III – defendants do not oppose the Motion to Amend
Complaint.

Second, with respect to Count III, the Court recognizes that, if a proposed

amendment would not survive a motion to dismiss, it should not be permitted. Thiokol Corp. v.
Dep't of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 383 (6th Cir. 1993) (“This Circuit
has addressed the issue of ‘futility’ in the context of motions to amend, holding that where a
proposed amendment would not survive a motion to dismiss, the court need not permit the
amendment.”).

In so considering, the Court is aware of the principles set forth in

Iqbal/Twombly. “As the Court held in Twombly, the pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting, in part, Twombly, 550 U.S.
at 555) (internal citation omitted). And, 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.’” Id. (quoting, in part, Twombly, 550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). But the
Supreme Court also made it clear that it was not requiring a “heightened fact pleading of
specifics,” only that plaintiffs nudge “their claims across the line from conceivable to plausible.”
Twombly, 550 U.S. at 570.

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The Court is not prepared, at this juncture, to find that plaintiffs have failed to nudge their
claim across the line from conceivable to plausible. Even defendants appear to at least recognize
that the allegations supporting Count III are related to those in Count II. Defendants state, “the
facts alleged in these subparagraphs [of paragraph 48 of the proposed amended complaint] are
that certain portions of the union’s Hudson notice are misleading, overbroad, vague, or
ambiguous; the implication is that the notice thus fails to satisfy Hudson’s requirement that the
notice provide nonmembers with ‘sufficient information to gauge the propriety of the union’s
fee.’ 475 U.S. at 306. That may or may not be so: when the time comes to address Count II we
will explain why the notice is adequate.” (DN 41-1, p. 5.)

Defendants further state that

plaintiffs’ “argument that these notice allegations provide sufficient factual support for their
chargeability claim appears to rest on the suggestion that because the notice’s description of
certain categories of expenditures is (in Plaintiffs’ view) inadequate, it must follow that the
Union Defendants in fact charged Plaintiffs and other nonmembers for nonchargeable
expenditures.” (Id. at 6.)
The problem here is that, if the notice’s description is found to be inadequate and/or that,
as plaintiffs allege, the “Revised Notice ‘misleads Nonmembers to believe that all of the
expenses [within Section B] are or may be lawfully chargeable to nonmembers, even though
several of the expenses, as described, cannot,’” then it is plausible that nonmembers were
charged with nonchargeable expenses.

(See DN 39, p. 9 [quoting paragraph 48(b) of the

proposed amended complaint].) And defendants are the keepers of that information. The Court
believes, or is at least hopeful, that focused discovery will answer this question quickly and
definitively. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir. 2000)
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(“The test for futility, however, 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 to dismiss.”). Furthermore, the Court
further believes that this is the more pragmatic course of action under the particular
circumstances of this complex case that implicates important constitutional issues. Thus, when
considering principles enumerated in Iqbal/Twombly, in addition to the fact that this case is in the
relatively early stages of litigation, the liberal policy of granting leave to amend compels it to
grant the Motion to Amend Complaint.
Conclusion
Accordingly,
IT IS ORDERED that the Motion to Amend Complaint (DN 35) is GRANTED. The
Clerk is ORDERED to detach and file the Amended Complaint (DN 35-2).
IT IS FURTHER ORDERED that the Motion for Leave to File Sur-Reply Memorandum
(DN 41) is GRANTED. The Clerk is ORDERED to detach and file the sur-reply (DN 41-1).

cc: Counsel of record

Colin Lindsay, MagistrateJudge
United States District Court
June 20, 2016

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