Daniel v. Heartland Employment Services, LLC
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT 17 . Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DIAMOND L. DANIEL,
Case No. 16-cv-11232
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
UNITED STATES MAGISTRATE JUDGE
PATRICIA T. MORRIS
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND
This is a whistleblower action. Plaintiff brings this claim against her former
employer and alleges that she was unlawfully terminated after she reported a
suspected violation of Michigan law. This action was originally brought in the
Circuit Court for Macomb County, then removed based on diversity. Pending before
the Court is the Plaintiff’s Motion for Leave to Amend Complaint . For the
reasons stated below, the Court will GRANT Plaintiff’s Motion.
Diamond Daniel (hereinafter “Plaintiff”) filed this action on March 14, 2016.
Dkt. No. 1-2, p. 2 (Pg. ID 11). On April 5, 2016, the Defendant timely removed this
case to federal court and filed its answer to the Complaint. Dkt. No. 1. On July 12,
2016, the Court issued an amended scheduling order. Dkt. No. 9. Pursuant to that
scheduling order, discovery was due by December 15, 2016, the motion cut-off was
set for January 17, 2017. Id. A jury trial is currently set for June 20, 2017. Id.
On November 30, 2016, the Plaintiff filed a Motion for Leave to Amend her
Complaint. Dkt. No. 17. Concurrence was denied. Id., p. 2 (Pg. ID 85). Plaintiff
seeks leave to amend her Complaint to “raise an unpleaded issue” and to “clarify the
extent of her whistle-blowing activities.” Id.
This is a non-dispositive motion, therefore a response must have been filed
within 14 days of service of the motion. See LR 7.1(e)(2)(B). Plaintiff served the
Defendants on December 1, 2016. Dkt. No. 18. Therefore, Defendants had until
December 15, 2016 to file their Response to the Plaintiff’s motion. As of December
19, 2016, the Defendants have not filed a Response.
“A party may amend its pleading once as a matter of course within: (A) 21
days after serving it, or (B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15. “In all
other cases, a party may amend its pleading only with the opposing party’s written
consent or the court’s leave. The court should freely give leave when justice so
In this case, the Plaintiff is outside the window for amending the Complaint
as a matter of course. Because the opposing party does not consent, Plaintiff requires
the Court’s leave.
“[D]istrict courts have discretion to permit or deny amendment after a
defendant files an answer to a plaintiff’s complaint” United States ex rel. Harper v.
Muskingum Watershed Conservancy Dist., No. 15-4406, 2016 WL 6832974, at *7
(6th Cir. Nov. 21, 2016). “Despite [Rule 15’s] liberal amendment policy, denial may
be appropriate when there is ‘undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.’ ” Brown v. Chapman, 814 F.3d 436, 443
(6th Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d
In the absence of a Response from the Defendant, the Court compared the
original Complaint to the proposed Complaint. The Plaintiff made the following
changes to the original Complaint:
Amending the Defendant’s name to reflect the real party in
interest. See Dkt. No. 17-1, ¶ 2 (Pg. ID 91).
Adding an allegation that the Plaintiff was retaliated against for
reporting “substandard patient care to patient ‘R.C.’ ”. See Dkt.
No. 17-1, ¶ 6 (Pg. ID 91).
Adding an allegation that the Plaintiff believed she was
reporting violations of Michigan law when she threatened to
report violations of Michigan law “and intentionally within the
organization”. See Dkt. No. 17-1, ¶ 10 (Pg. ID 92).
Increasing the amount of economic and non-economic damages
to in excess of $75,000. See Dkt. No. 17-1, ¶¶ 12–13 (Pg. ID
Adding a claim for economic damages in excess of $75,000 to
Count I. See Dkt. No. 17-1, ¶ 26 (Pg. ID 93).
The Plaintiff’s amendments can essentially be placed in two categories. First,
the Plaintiff confirms that the amount of damages she is seeking is in excess $75,000.
This amendment cannot cause any delay to trial or surprise to the Defendant because
it is already known. Indeed, the Defendant acknowledges the amount in controversy
exceeds $75,000 in its notice for removal. See Dkt. No. 1, p. 4 (Pg. ID 4).
Second, the Plaintiff adds the allegation that a patient received substandard
care and that the Plaintiff attempted to report the situation to her employer. This new
allegation will not cause prejudice or delay because it is intertwined with the original
allegations in the Complaint.
This case arises from an alleged violation of the Michigan Whistleblowers’
Protection Act. See Mich. Comp. Laws Ann. § 15.363. In the original Complaint,
the Plaintiff alleged that the “Defendant retaliated against the Plaintiff for reporting
and/or threatened to report to a public body an assault by one patient upon another
committed at the facility (that the Defendant failed to report as required).” Dkt. No.
1-2, p. 5 (Pg. ID 14). Therefore, in the original Complaint, the Plaintiff accused the
Defendant of breaching its duty to a patient. Because the new allegation of
substandard care is closely related to the original alleged failure to report that a
patient was assaulted – this new allegation is unlikely to cause the Defendant any
prejudice or delay.
In the absence of any showing of bad faith or prejudice, the Court will
GRANT Plaintiff’s Motion for Leave to Amend Complaint .
Dated: December 20, 2016
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, December 20, 2016, by electronic and/or ordinary mail.
Case Manager, (313) 234-5213
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