JONES v. BFI WASTE SERVICES OF PENNSYLVANIA, LLC, et al

Filing 31

ORDER granting 28 Motion to Amend/Correct. Plaintiff shall file his Amended Complaint by October 10, 2013. Signed by Magistrate Judge Cynthia Reed Eddy on 10/03/2013. (MJL)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SAMUEL W. JONES, JR.,
Plaintiff,
v.

BFI WASTE SERVICES OF
PENNSYLVANIA, LLC, doing business as
ALLIED WASTE SERVICES
OF PITTSBURGH, doing business as
REPUBLIC SERVICES
OF PITTSBURGH,
Defendants.

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Civil Action No. 13-0460
United States Magistrate Judge
Cynthia Reed Eddy

District Judge Option

ORDER GRANTING PLAINTIFF’S “MOTION
TO AMEND COMPLAINT TO ADD TWO COUNTS
UNDER 42 U.S.C. § 1981” (ECF NO. 28)
Plaintiff Samuel W. Jones, Jr. has filed a Motion to Amend Complaint to Add Two
Counts Under 42 U.S.C. § 1981 (ECF No. 28). Pursuant to Fed. R. Civ. Proc. 15(a)(2), Plaintiff
seeks to add a new theory of liability (but “grounded in the same” operative facts as set forth in
his initial Complaint) in two counts premised on 42 U.S.C. §1981 – Count V, for “Racial
Discrimination/Impairment of Contract,” and Count VI, for “Racial Discrimination/Retaliation
Impairment of Contract.” After careful consideration of Plaintiff’s motion to amend and the Brief
in Opposition (ECF No. 30) by Defendants Browning Ferris Industries of Pennsylvania (d/b/a
Allied Waste of Pittsburgh and Republic Services of Pittsburgh) and Republic Services, Inc., the
Court will grant leave to amend.
Federal Rule of Civil Procedure 15 “embodies a liberal approach to pleading.” Arthur v.
Maersk, Inc., 434 F.3d 196, 202 (3d Cir. 2006) (citing Bensel v. Allied Pilots Ass'n, 387 F.3d
298, 310 (3d Cir. 2004), cert. denied, 544 U.S. 1018 (2005)); Adams v. Gould Inc., 739 F.2d 858,
864 (3d Cir. 1984). Subsection (a) allows a party to amend a pleading “once as a matter of
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course” within 21 days after service, or within 21 days after service of a responsive pleading if
one is required, or within “21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.” Fed.R.Civ.P. 15(a)(1)(A), (B). Fed.R.Civ.P. 15(a). “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 requires.” Fed.R.Civ.P. 15(a)(2).
However, the “policy favoring liberal amendment of pleadings is not . . . unbounded.”
Dole v. Arco Chem. Co., 921 F.2d 484, 486–87 (3d Cir. 1990). Factors which may weigh against
amendment include “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, [and] futility of amendment . . . .”
Foman v. Davis, 371 U.S. 178, 182 (1962). Absent substantial or undue prejudice, denial “must
be based on bad faith or dilatory motives, truly undue or unexplained delay, repeated failures to
cure the deficiency by amendments previously allowed, or futility of amendment.” Lorenz v.
CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993). Under Rule 15(a), “prejudice to the non-moving
party is the touchstone for the denial of an amendment.” Cornell & Co. v. Occupational Safety &
Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978).
Plaintiff’s request to amend the complaint to add discrimination and retaliation claims
under 42 U.S.C. § 1981 was made about six weeks after the Court’s deadline for amending
pleadings (August 5, 2013), in response to a June 24, 2013 decision by the United States
Supreme Court, Univ. Of Texas Southwestern Med. Ctr. v. Nassar, --- U.S. ---, 133 S.Ct. 2517
(2013). There has not been excessive or undue delay in making that request,1 nor have
Defendants pointed to the sort of undue prejudice that might give this Court pause. Defendants
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The Court expresses no opinion, at this early stage of the case, as to the viability of the additional claims
made pursuant to 42 U.S.C. § 1981. Obviously, Defendants may challenge these claims by appropriate
motion.

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offer only generic harms and prejudices, in vague terms, which they assert will befall them
should the Court grant leave to amend. The Court perceives no prejudice to Defendants in
permitting Plaintiff to add two counts to his Complaint, especially considering that the Court has
entered an Order granting the parties’ Joint Motion to Extend Time for Discovery (ECF No. 26)
until January 6, 2014. As Plaintiff adds no new facts, only new theory, the extended discovery
period is more than ample time to complete all discovery.
The “liberality of Rule 15(a) counsels in favor of amendment even when a party has been
less than perfect in the preparation and presentation of a case.” Arthur, 434 F.3d at 206 (citing
Foman, 371 U.S. at 182; additional citation omitted). Finding no undue delay in making the
request to amend or undue prejudice to defendants, the Motion to Amend Complaint (ECF No.
28) is HEREBY GRANTED.
Plaintiff shall file his Amended Complaint by October 10, 2013.

By the Court:
s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc: all counsel of record

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