Panyagor v. Kindred Nursing Centers Limited Partnership
MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 8/8/2017, re Plaintiff's 21 MOTION for Leave to Amend Complaint. cc: Counsel (RLK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:16-CV-00401-CRS-CHL
KINDRED NURSING CENTERS
This matter is before the Court on the motion of Plaintiff Abraham Panyagor for leave to
amend the complaint under Federal Rule of Civil Procedure 15(a)(2), ECF No. 21. Panyagor
tendered a proposed amended complaint, ECF No. 21-1. Defendant Kindred Nursing Centers
Limited Partnership (“Kindred”) responded, ECF No. 29. Panyagor replied, ECF No. 32. For the
reasons explained below, the Court will deny Panyagor’s motion for leave to amend the
Allegations in the Complaint
Kindred employed Panyagor as a certified nursing assistance. Compl. ¶ 9, ECF No. 1-1.
In May or June of 2015, Panyagor notified Kindred’s management that his co-worker, Serena
James, was mistreating the company’s residents. Id. ¶ 12. Shortly thereafter, James began to
harass Panyagor, including by calling him names. Id. ¶ 13. Panyagor complained to Kindred’s
management that James was harassing him. Id. ¶ 14. In response, Kindred’s management
informed Panyagor that he would no longer be assigned to work with James. Id.
On July 2, 2015, Panyagor’s physician requested that Panyagor be placed on a leave of
absence for rehabilitation related to his herniated lumbar disc, which Panyagor asserts was a
request for leave under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2611, et. seq. Id. ¶
15. About a month later, Panyagor returned to work with temporary light duty restrictions. Id. ¶
16. That day, Kindred advised him that his employment was suspended pending an investigation
into a claim by James that he had violated the company’s sexual harassment policy. Id. ¶ 17. On
August 7, 2015, Kindred terminated Panyagor. Id. ¶ 18.
In June 2016, Panyagor filed suit against Kindred in the Jefferson County, Kentucky
Circuit Court. Id. at 1. He asserts that Kindred discriminated against him on the basis of a
disability in violation of the Americans with Disabilities Act of 1990, as Amended (ADAAA),
42 U.S.C. § 12101, et seq. (Count I). Id. ¶¶ 20–23. Panyagor also alleges that Kindred
discriminated against him on the basis of his national origin in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a), et seq. (Count II) Id. ¶¶ 24–27.
Panyagor additionally claims that Kindred terminated him and engaged in other retaliatory
conduct after he complained about the company’s employment practices, which is unlawful
under Title VII (Count III). Id. ¶¶ 28–31. Panyagor further maintains that Kindred discriminated
and retaliated against him in violation of the Kentucky Civil Rights Act (KCRA), Ky. Rev. Stat.
§ 344, et seq. (Count IV). Id. ¶¶ 32–34. Panyagor asserts that Kindred interfered with his rights
under the FMLA (Count V). Id. ¶¶ 35–42. Finally, he contends that Kindred discriminated
against him in violation of the FMLA (Count VI). Id. ¶¶ 43–47. Panyagor seeks an award of
compensatory damages, liquidated damages, and punitive damages. Id. at 9. He also seeks an
award of statutory interest, costs and fees, and other appropriate relief. Id. at 10.
Kindred filed a notice of removal in this Court. Not. Removal 1, ECF No. 1. As part of
the scheduling order, the magistrate judge ordered the parties to file any amended pleadings and
joinder of parties by November 18, 2016. Order 9/15/2016 1, ECF No. 11. The parties agree that
on April 18, 2017, Panyagor sat for a deposition. Mot. Amend 2, ECF No. 21; Resp. Opp. Mot.
Amend 2, ECF No. 29. According to Panyagor, he testified that he had been subjected to
retaliation because he complained about James’ treatment of Kindred patients. Mot. Amend 2,
ECF No. 21.
Some six months after the scheduling order deadline for filing amended pleadings—in
May 2017—Panyagor moved for leave to amend the complaint under Rule 15(a)(2). Mot.
Amend 1, ECF No. 21. He seeks to add James as a defendant and to assert (1) a claim for
wrongful termination, (2) a claim under the Kentucky Patient’s Safety Act, Ky. Rev. Stat. §
216B.165, and (3) a claim for conspiracy to violate the KCRA. Tendered Am. Compl. ¶¶ 44–60,
ECF No. 21-1. He also seeks to withdraw his claims arising under the ADAAA.1
Panyagor argues that the Court should grant him leave to amend the complaint because
the purpose of the amendments is proper, the amendments would aid the Court in framing the
relevant issues, the amendments are not advanced to cause undue delay or prejudice, the
amendments would not require a continuance of the trial, and Kindred would not suffer undue
prejudice as a result of the complaint being amended. Mot. Amend 2–3, ECF No. 21. Panyagor
further maintains that good cause exists to grant him leave to amend the complaint because he
In his reply, Panyagor seeks to file a modified amended complaint. See Am. Compl. 1, ECF
No. 32-1. This is procedurally improper because it bars Kindred from presenting its arguments
on the modified amended complaint. Accordingly, the Court will consider only Panyagor’s
amended complaint that was submitted with his motion for leave to file an amended complaint.
has developed new theories of liability that should be subject to motion practice or to trial. Id. at
3. Kindred argues in opposition that Panyagor has not met his burden to affirmatively show good
cause, his proposed amendment and joinder of a new party would prejudice it, and his
amendments are futile. Resp. Opp. Mot. Amend 3, ECF No. 29.
The Federal Rules of Civil Procedure permit a party to “amend its pleading once as a
matter of course” if the amendment is filed “before being served with a responsive pleading.”
Fed. R. Civ. P. 15(a)(1). In “all other cases[,]” the party must receive the “opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Courts “should freely give leave
[to amend] when justice so requires.” Id.
The “window of opportunity” for amending a complaint does not stay open forever.
Shane v. Bunzl Distrib. USA, Inc., 275 F. App’x 535, 536 (6th Cir. 2008). Federal Rule of Civil
Procedure 16 requires that the parties enter into a scheduling order that limits the time to amend
the pleadings. Fed. R. Civ. P. 16(b)(3)(A). Rule 16 is designed to ensure that “at some point both
the parties and the pleadings will be fixed.” Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir.
2003) (internal citations omitted).
After the Rule 16 deadline has passed, litigants must “meet the higher threshold for
modifying a scheduling order found in Rule 16(b).” Shane, 275 F. App’x at 536. Rule 16
provides that a modification to the scheduling order is available “only for good cause and with
the judge’s consent.” Fed. R. Civ. P. 16(b)(4). This requires the litigants to establish that “despite
their diligence they could not meet the original deadline.” Leary, 349 F.3d at 907. Another factor
the court may consider is “possible prejudice to the party opposing the modification.” Inge v.
Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002).
Here, as noted above, Panyagor moved to amend the complaint after the scheduling order
deadline for filing amended pleadings had passed; thus, he must meet the higher “good cause”
standard for modifying a scheduling order under Rule 16(b). He does not. In his motion to
amend, Panyagor summarily asserts, “[G]ood cause exists to grant . . . leave to amend the
complaint. Since the amendment deadline of November 18, 2016, [he] has developed new
theories of liability which he should be permitted to test through dispositive motion practice or
trial.” Mot. Amend 3, ECF No. 21. Panyagor fails to articulate how he exercised due diligence in
obtaining the information giving rise to the claims he wishes to now assert in the amended
complaint and the addition of James as a defendant in the case. Nor does he explain why he was
unable to meet the scheduling order deadline of November 18, 2016 for amending the pleadings.
At least part of the information upon which the new claims are based comes from his own
knowledge and arose from the deposition that he gave on April 18, 2017. Mot. Amend 2, ECF
No. 21. Thus, Panyagor had the capacity to reasonably develop the information before November
18, 2016 scheduling order deadline.
In his reply, Panyagor maintains that he lacked information to present his claims before
the scheduling order because Kindred failed to timely produce documents and other information
in response to his early discovery requests. Reply 1–2. He attaches emails sent between his and
Kindred’s counsel regarding discovery requests in support of this argument. See, e.g., Golding
Email 2/6/2017 1, ECF No. 32-3. These new arguments raised in the reply are procedurally
improper, as they prevent Kindred from providing any type of response and the record from
being fully developed. Moreover, the alleged failure of Kindred to provide sufficient discovery
in response to his requests does not explain why Panyagor was unable to meet the scheduling
order deadline of November 18, 2016 in light of his statements made in his motion for leave to
amend the complaint that the new claims are partially based on his own deposition testimony.
See Mot. Amend 2, ECF No. 21.
In sum, Panyagor is unable to show good cause for amending the complaint after the
scheduling order deadline of November 18, 2016. As such, the Court will deny his motion for
leave to amend the complaint.
The Court will deny Panyagor’s motion for leave to amend the complaint. An order will
be entered in accordance with this memorandum opinion.
August 8, 2017
C al R Smpo I , ei J d e
h r s . i sn I Sno u g
U i dSae Ds i C ut
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