Sorensen v. Fraternal Order of Eagles

Filing 41

ORDER granting 38 Motion for Leave to File Amended Complaint and Motion to Amend Scheduling Order. The plaintiff shall have until September 13, 2012, to amend the complaint. The parties shall have until October 10, 2012, to file any motions for summary judgment. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEBRA SORENSEN,

)
)
Plaintiff,
)
)
vs.
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)
FRATERNAL ORDER OF THE EAGLES, )
LOCAL CHAPTER 200,
)
)
Defendant.
)

8:11CV258
ORDER

This matter is before the court on the plaintiff’s Motion for Leave to File Amended
Complaint and Motion to Amend Scheduling Order (Filing No. 38). The plaintiff attached
to the motion a draft of the amended pleading (Filing No. 38-1). The plaintiff filed a brief
(Filing No. 39) in support of the motion. The plaintiff seeks to add a Fraternal Order of
Eagles, Grand Aerie, as a defendant; add a claim based upon the Nebraska Fair
Employment Practice Act (NFEPA), Neb. Rev. Stat. §§ 48-1101 to 48-1125; and add
details to the factual allegations. The defendant filed a brief (Filing No. 40) opposing the
plaintiff’s motion.

BACKGROUND
The plaintiff, a female, filed the instant action on July 26, 2011, against her previous
employer, the Fraternal Order of the Eagles, Local Chapter 200 (Local Chapter 200),
alleging she was treated less favorably compared to younger employees while working as
a bartender. See Filing No. 1. Local Chapter 200 employed the plaintiff from August 2008,
until her termination on December 19, 2009, at age 57. Id. ¶¶ 5, 7, and 8. The plaintiff
alleges Local Chapter 200 allowed supervisors to “continually subject the Plaintiff to
repeated episodes of offensive, embarrassing, and hostile comments.” Id. ¶ 11. The
plaintiff further alleges Local Chapter 200 forced her from her position and retaliated
against for filing an EEOC “sexual discrimination” charge and because of her age. Id. ¶ 12.
Based on these allegations, the plaintiff contends the defendant’s conduct violates Title VII
of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e, et seq., the Age

Discrimination in Employment Act and the Americans with Disabilities Act of 1990. Id. ¶ 3
and 14. On August 24, 2011, Local Chapter 200 filed an answer denying liability for the
plaintiff’s claims. See Filing No. 4.
On December 12, 2011, the court entered an initial progression order based on the
parties’ joint planning report. See Filing No. 28. The court set February 1, 2012, as the
deadline for the plaintiff to file a motion to amend. Id. The plaintiff did not seek an
extension of the deadline. The plaintiff’s original attorney withdrew his representation of
the plaintiff on February 17, 2012, when substitute counsel entered an appearance. See
Filing No. 31 - Text Order. On March 1, 2012, the court held a telephone conference with
counsel for the parties and entered the final progression order scheduling the matter
through discovery to trial. See Filing No. 32. The court set the summary judgment
deadline as September 4, 2012, and scheduled trial for December 2012. Id.; Filing No. 33.
The plaintiff filed the instant motion to amend on August 10, 2012. See Filing No. 38.
The plaintiff seeks to add a party, claims, and more detailed factual allegations in
an amended complaint. See Filing No. 39 - Brief. The court notes the plaintiff’s proposed
amended complaint makes no mention of the plaintiff’s age, age discrimination, or disability
discrimination, however it is based solely on allegations of gender discrimination. See
Filing No. 38-1. The plaintiff states additional facts were discovered “through discovery,”
after the filing of the original lawsuit by the plaintiff’s original counsel. See Filing No. 39 Brief p. 3. The plaintiff states the proposed new party, Grand Aerie, acted as an agent for
Local Chapter 200 when Local Chapter 200 lost its status as a chartered Fraternal Order
of Eagles chapter on March 23, 2009. Id. at 2. In such capacity, Grand Aerie investigated
and responded to workplace harassment claims and hiring and firing of Local Chapter 200
employees. Id. Additionally, Grand Aerie participated in the EEOC’s investigation in the
plaintiff’s claims. Id. The plaintiff alleges her right to relief against Local Chapter 200 and
Grand Aerie arise out of the same transaction or occurrence and have common questions
of fact and law. Id. at 3. The plaintiff seeks to add a claim under the NFEPA based on the
same factual basis supporting the Title VII claims. Id. The plaintiff contends that although
some deadlines, such as for discovery, should be extended, the trial date may remain

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unchanged. Id. at 5. The plaintiff denies Local Chapter 200 would suffer any undue
prejudice by allowing the amendments. Id. at 5-6.
The defendant’s opposition to the plaintiff’s motion to amend states, in its entirety,
“No new factual information has been discovered since the filing of these claims.
Defendant objects to this motion.” See Filing No. 40. The plaintiff did not file a reply.

ANALYSIS
Under Federal Rule of Civil Procedure 15, a court should grant leave to amend
freely “when justice so requires.” However, “denial of leave to amend may be justified by
undue delay, bad faith on the part of the moving party, futility of the amendment or unfair
prejudice to the opposing party.” Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir. 2008)
(internal quotation and citation omitted). The party opposing the amendment has the
burden of demonstrating the amendment would be unfairly prejudicial. Roberson v. Hayti
Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001); see Hanks v. Prachar, 457 F.3d 774,
775 (8th Cir. 2006). There is no absolute right to amend. Trim Fit, LLC v. Dickey, 607
F.3d 528, 531 (8th Cir. 2010). Whether to grant a motion for leave to amend is within the
sound discretion of the district court. Popoalii v. Correctional Med. Servs., 512 F.3d 488,
497 (8th Cir. 2008). “If a party files for leave to amend outside of the court’s scheduling
order, the party must show cause to modify the schedule.” Id. (citing Fed. R. Civ. P.
16(b)); see Trim Fit, 607 F.3d at 531. Additionally, the court may consider whether the
“late tendered amendments involve new theories of recovery and impose additional
discovery requirements.” Popoalii, 512 F.3d at 497.
The court finds the plaintiff has shown good cause for filing the motion to amend
beyond the deadline imposed earlier by the court. The record shows the parties have
engaged in discovery related to the current claims. The plaintiff brought the motion to
amend shortly after receiving discovery responses from the current defendant. The timing
of the plaintiff’s motion, particularly under the current discovery and trial schedule, does
not provide evidence she engaged in undue delay.
In contrast, the defendant has failed to sustain its burden of showing unfair prejudice
caused by the delay. The parties will have time to complete any necessary discovery as
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deadlines have not yet expired. Moreover, the defendant fails to specify what discovery,
in addition to that already taken, would be needed.
The plaintiff has shown good cause to allow the untimely amendment. Moreover,
the proposed amendment is related to the current claims, and will not significantly delay
the case or impact discovery requirements. Additionally, because the deadline for filing
summary judgment motions would expire prior to any answers being due on the amended
complaint, the court will extend the summary judgment deadline. The parties shall confer
prior to seeking any additional continuances. Upon consideration,

IT IS ORDERED:
1.

The plaintiff’s Motion for Leave to File Amended Complaint and Motion to

Amend Scheduling Order (Filing No. 38) is granted.
2.

The plaintiff shall have to on or before September 13, 2012, to file the

Amended Complaint. The plaintiff shall serve the Amended Complaint on Fraternal Order
of Eagles, Grand Aerie, without delay.
3.

The parties shall have an extension until October 10, 2012, to file any

motions for summary judgment.
DATED this 6th day of September, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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