Jensen v. Western Carolina University et al
Filing
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ORDER denying 37 Motion to Amend/Correct; denying 40 Motion to Dismiss; deferring ruling on 30 Motion for Summary Judgment. Signed by District Judge Martin Reidinger on 11/6/12. (nll)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:11cv33
DONALD JENSEN,
)
)
Plaintiff,
)
)
vs.
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WESTERN CAROLINA UNIVERSITY, et. al., )
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Defendants.
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)
ORDER
THIS MATTER is before the Court on the following matters:
1.
The Defendants’ Motion for Summary Judgment [Doc. 30];
2.
The Plaintiff’s Motion to Amend Complaint [Doc. 37]; and
3.
The Plaintiff’s Motion to Voluntarily Dismiss Specific Claims [Doc. 40].
The Court has scheduled a hearing on the Defendants’ Motion for
Summary Judgment on December 7, 2012 at 9:00 a.m. The purpose of this
Order is to dispose of the other two pending motions.
PROCEDURAL HISTORY
On September 1, 2011, the Plaintiff initiated this action by filing his
Complaint. [Doc. 1]. The dispute among the parties stems from the Plaintiff’s
previous employment at Western Carolina University (WCU). [Id.]. Before any
responses to that Complaint were made, the Plaintiff filed an Amended
Complaint on September 19, 2011. [Doc. 8]. After issue had been joined, the
initial Pretrial Order and Case Management Plan was entered on December
5, 2011. [Doc. 13].
On February 20, 2012, with the Defendants’ consent, the Plaintiff filed
another amendment to the complaint. [Doc. 15; Doc. 16]. In that pleading,
the Plaintiff has alleged the following: (1) a claim pursuant to 42 U.S.C. §1983
for denial of due process in violation of the Fourteenth Amendment against all
Defendants; (2) a claim for breach of employment contract against all
Defendants; (3) a claim pursuant to §1983 for violation of the First
Amendment against all Defendants; (4) a claim pursuant to N.C. Gen. Stat.
§126-85, the so-called state Whistleblower Act, against Defendants WCU and
the University of North Carolina (UNC); (5) a claim for defamation against
Defendants Hudson, Zhang and McMahan; (6) a claim for state law civil
conspiracy against the individual Defendants; and (7) a claim pursuant to Title
VII against WCU and UNC for retaliation. [Doc. 15].
This amendment
necessitated an Amended Pretrial Order and Case Management Plan which
was filed on June 28, 2012. [Doc. 21]. The discovery deadline was July 16,
2012 and the deadline for dispositive motions was August 15, 2012. [Id.].
2
On July 19, 2012, a Certification of ADR Session was filed by M. Ann
Anderson, mediator. [Doc. 24]. Ms. Anderson reported that although
mediation was conducted, the parties reached an impasse. [Id.]. On August
20, 2012, after receiving a short extension, the Defendants filed their Motion
for Summary Judgment. [Doc. 26; Doc. 30]. In response to that motion, the
Plaintiff filed a motion for leave to file yet another amended complaint which
would delete the Title VII cause of action and substitute in its stead a claim
pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. §1681
(Title IX). [Doc. 37]. The next day, the Plaintiff moved to voluntarily dismiss
without prejudice the breach of contract claim and the request for equitable
relief sought in connection with the Whistleblower claim. [Doc. 40]. The
Defendants’ attorney reported their objection to dismissal without prejudice,
presumably for the same reasons as stated in their pending motion for
summary judgment.1 The Plaintiff also seeks to dismiss without prejudice the
Title VII claim, conceding that no such claim is viable on these facts. [Doc. 40
at 2]. No reason is given for the request to dismiss without prejudice a claim
which the Plaintiff has conceded is not viable.
1
The Defendants did not file separate response to the motion for voluntary
dismissal since those same issues had been briefed in support of their pending motion
for summary judgment. [Doc. 31].
3
DISCUSSION
The motion for leave to amend.
The Plaintiff seeks leave to amend his complaint to delete his claim for
retaliation based on Title VII and to reallege it pursuant to Title IX. The claim
would be based on the same factual allegations as previously alleged; that is,
that the Plaintiff was not reappointed as a teacher in retaliation for his role in
reporting the complaints of two students that they had been sexually harassed
by another faculty member. The Defendants object, arguing that amendment
at this late date will prejudice them and pointing out that the Plaintiff has
previously amended his complaint more than once without realizing the error.
The Plaintiff’s position is that because the Title IX claim has the same
elements as a Title VII claim, the Defendants cannot be prejudiced by
amendment of the complaint at this time.2 This argument, however, ignores
the fact that the proposed amendment is sought after the expiration of the
deadlines contained within the amended Pretrial Order and Case
2
It is first noted that the Plaintiff has not submitted the proposed language of any
such amendment. The Court is thus unable to ascertain whether the amendment would
assert this claim against the individual defendants as well as the institutional
defendants. Although under Title IX, an individual is protected from retaliation for
complaining about discrimination on the basis of sex, any such claim may not be
brought against individual defendants because Title IX encompasses retaliation by
institutions which receive federal funding, not individuals who work therein. Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 178, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005).
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Management Plan. When a motion for leave to amend is filed “after the
deadlines provided by a scheduling order have passed, [Rule 16(b)(4)’s] good
cause standard must be satisfied to justify leave to amend the pleadings.”
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4 th Cir. 2008).
Here, the Plaintiff’s first complaint was filed on September 1, 2011. [Doc.
1]. In that complaint, he alleged each of the claims currently asserted except
the Title VII and breach of contract claims. [Id.]. On September 19, 2011, the
Plaintiff amended that complaint to add the breach of contract claim. [Doc. 8].
Five months later, the Plaintiff amended the complaint by consent again to
add the Title VII claim. [Doc. 15]. The parties then proceeded in accordance
with the amended Pretrial Order and Case Management Plan. [Doc. 21].
Mediation was conducted on July 15, 2012; discovery concluded on July 16,
2012, and the pending dispositive motion was filed on August 20, 2012.
Plaintiff’s counsel concedes that it was only after receiving the Defendants’
Motion for Summary Judgment that he realized the Title VII claim was fatally
flawed: “In light of Defendants’ correct briefing of the applicable law, [the
Plaintiff] moves to voluntarily dismiss the Title VII claim.” [Doc. 40 at 2];
“Defendants appear to be correct that Plaintiff’s claim sounds in Title IX rather
than Title VII, as Plaintiff was reporting the discrimination complaint of a
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student rather than of a co-worker.” [Doc. 41 at 21]. Thus, on September 17,
2012, two months after the close of discovery and almost one month after the
filing of the Defendants’ dispositive motion, the Plaintiff moved for leave to
again amend the complaint to present a fourth version thereof.
Given their heavy case loads, district courts require the effective
case management tools provided by Rule 16. Therefore, after the
deadlines provided by a scheduling order have passed, the good
cause standard must be satisfied to justify leave to amend the
pleadings. ... In his Motion for Leave to Amend, [the plaintiff]
explained his delay: “In responding to the motion for summary
judgment, [plaintiff’s] counsel reviewed his defenses to the
guaranty letter at issue in this case and noted that there was a
defense available to [the plaintiff] that [counsel] had not raised in
his Answer[.]” ... This is far short of what is required to satisfy the
good cause standard, and the District Court thus properly denied
the Motion [to amend].
Nourison Rug Corp. v. Parvizian, 535 F.3d at 298.
Likewise, in this case, Plaintiff’s counsel candidly admits that he
“mistakenly believed the termination of a teacher for opposing discrimination
was a claim sounding in Title VII, but is now persuaded otherwise,” having
received the Defendants’ motion for summary judgment. [Doc. 37-1 at 4]. No
other reason is provided to show good cause for failing to move for leave to
amend prior to this time. The burden of showing good cause is on the moving
party. Id. at 298-299; United States v. Godwin, 247 F.R.D. 503, 508 (E.D.N.C.
2007).
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“Rule 16(b)’s good cause standard focuses on the timeliness of the
amendment and the reasons for its tardy submission; the primary
consideration is the diligence of the moving party.” Montgomery v. Anne
Arundel County, 182 F. App’x. 156, 162 (4 th Cir. 2006). “Good cause exists
when a party’s reasonable diligence before the expiration of the ... deadline
would not have resulted in the discovery of the evidence supporting a
proposed amendment.” Firemen’s Ins. Co. of Washington D.C. v. Glen-Tree
Investments, LLC, 2012 WL 4191383 (E.D.N.C. 2012). Failure to recognize
that the Title VII claim is not viable, and now seeking to assert a new claim
under a completely different act falls “short of what is required to satisfy the
good cause standard.” Id. (quoting Nourison Rug Corp., 535 F.3d at 298);
Stanley v. Huntington National Bank,
F. App’x.
, 2012 WL 3570805 (4 th
Cir. 2012) (good cause not shown where motion to amend was made in
reaction to summary judgment motion). “If a party could amend its complaint
via summary-judgment briefing, Rule 15 and 16 and trial court scheduling
orders would be meaningless.” Hexion Specialty Chemicals v. Oak-Bark
Corp., 2011 WL 4527382 **8 (E.D.N.C. 2011). Moreover, the facts on which
the proposed amendment is based have been known to the Plaintiff since the
initiation of this action in September 2011. Buckner v. United Parcel Service,
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Inc., 2012 WL 1596726 (E.D.N.C. 2012) (citing Godwin, 247 F.R.D. at 508).
The Court therefore finds that the Plaintiff has failed to show good cause, and
leave to amend should not be granted. Cook v. Howard,
F. App’x.
,
2012 WL 3634451 (4 th Cir. 2012) (good cause standard is not met where
party’s attorney has not acted diligently).
Because the Plaintiff has not shown good cause, the Court is not
obligated to consider the motion pursuant to Rule 15(a). Nourison Rue Corp.,
535 F.3d at 299; Hexion, 2011 WL 4527382 (if the party fails to establish good
cause under Rule 16, the trial court need not conduct the Rule 15 inquiry).
Applying the Rule 15(a) considerations would not, in any event, provide relief
to the Plaintiff here.
Although leave to amend should be freely given when justice so
requires, the district court may deny leave to amend for reasons
“such as 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 the allowance of the amendment, futility of amendment,
etc.” ... [W hen a plaintiff has had] “many opportunities ... to
present [his] claim,” [such delay] warrant[s] denial of the motion
to amend.
Glaser v. Enzo Biochem, Inc., 126 F. App’x. 593, 602 (4 th Cir. 2005) (citing
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962))
(other citations omitted). Moreover, “the further the case progresse[s] ..., the
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more likely it is that the amendment will prejudice the defendant or that a court
will find bad faith on the plaintiff’s part.” Laber v. Harvey, 438 F.3d 404, 427
(4 th Cir. 2006).
Here, the Defendants aptly note that their motion for summary judgment
has been filed and granting leave to amend the complaint to add another
cause of action will deprive them of the possibility of obtaining summary
judgment as to the newly raised claim.
prejudiced. Cadwell v. C.I.R.,
Thus, they have will have been
F. App’x.
, 2012 WL 2337353 (4 th Cir.
2012) (delay alone rarely sufficient but delay accompanied by prejudice
warrants denial of motion to amend); Linson v. Trustees of University of
Pennsylvania, 1996 WL 637810 (E.D.Pa. 1996) (motion for leave to amend
in response to summary judgment motion prejudicial). As noted above, the
only reason given for the failure to cure the defect earlier is that counsel did
not recognize it until he received the Defendants’ summary judgment motion.
The Plaintiff has thus on three previous occasions amended the complaint
without curing this defect. United States ex rel. Black v. Health & Hosp. Corp.
of Marion County,
F. App’x.
, 2012 WL 3538820 **11 (4 th Cir. 2012)
(citing Foman, 371 U.S. at 182) (repeated failure to cure deficiencies by
previously allowed amendments ground for not granting leave); Jones v.
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HSBC Bank USA, N.A., 444 F. App’x. 640, 643 (4 th Cir. 2011) (repeated failure
to cure defect); Glaser, 126 F. App’x. at 602. Motions to amend made as a
“last-ditch attempt to avoid the case being dismissed” do not warrant leave
pursuant to Rule 15(a). Trans Video Electronics, Ltd. v. Sony Electronics,
Inc., 278 F.R.D. 505, 510 (N.D.Cal. 2011), affirmed 475 F. App’x. 334
(Fed.Cir. 2012) (citation omitted). Nor is a motion for leave to amend “a
vehicle to circumvent summary judgment.” Schlacter-Jones v. General Tel.,
936 F.2d 435, 443 (9 th Cir. 1991), overruled in part on other grounds by
Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 692 (9 th Cir. 2001).
Granting the motion for leave to amend at this time could have further
prejudicial impacts on the Defendants such as necessitating changes in trial
preparation and adding expense. 6 Charles Alan Wright, et. al., Federal
Practice and Procedure, §1487 (3d ed. 2012).
Moreover, allowing an
amendment at this point could result in a motion to continue the trial. Such a
continuance would disrupt the Court’s administration of justice and the
management of its docket. Id.; Nourison Rug, 535 F.3d 295.
The Court finds that the Plaintiff is not entitled to amend his complaint
pursuant to either Rule 16 or Rule 15(a) considerations.
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The Plaintiff’s motion to dismiss.
The Plaintiff seeks to dismiss without prejudice the cause of action for
breach of contract, a portion of the Whistleblower claim and the Title VII claim.
No reason for dismissal without prejudice, as opposed to with prejudice, has
been provided and the motion will be denied as to the breach of contract and
Whistleblower claims. As previously noted, the Plaintiff has conceded that no
Title VII claim exists on the facts of this case. As a result, there is no reason
to dismiss that claim without prejudice.
ORDER
IT IS, THEREFORE, ORDERED that, except as noted below, the
Defendants’ Motion for Summary Judgment [Doc. 30] is deferred to the time
of hearing.
IT IS FURTHER ORDERED that the Plaintiff’s Motion to Amend
Complaint [Doc. 37] is hereby DENIED.
IT IS FURTHER ORDERED that the Plaintiff’s Motion to Voluntarily
Dismiss Specific Claims [Doc. 40] without prejudice is hereby DENIED.
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IT IS FURTHER ORDERED that the Plaintiff having conceded that no
Title VII claim is viable on the facts of this case, the Defendant’s Motion for
Summary Judgment [Doc. 30] is hereby GRANTED as to theTitle VII claim
which is hereby DISMISSED with prejudice.
Signed: November 6, 2012
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