Manley v. Invesco et al

Filing 64

MEMORANDUM AND ORDER Docket Control Order is AMENDED to include the following deadlines:Fact Discovery Deadline:August 22, 2012Plaintiffs Expert Disclosure deadline:August 23, 2012Defendants Expert Disclosure deadline:September 10, 2012Expert Discove ry Deadline:October 5, 2012Motions Deadline:October 19, 2012Mediation (Required) Deadline:December 29, 2012Joint Pretrial Order due:February 11, 2013 Docket Call(4:00 p.m.):February 19, 2013( Docket Call set for 2/19/2013 at 04:00 PM in Courtroom 9F before Judge Nancy F. Atlas)(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

STEPHEN MANLEY,
Plaintiff,
v.
INVESCO, et al.,
Defendants.

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CIVIL ACTION NO. H-11-2408

MEMORANDUM AND ORDER
Pending before this Court are Plaintiff’s Request to Compel Records [Doc.
# 48],1 Plaintiff’s Motion to Amend Complaint [Doc. # 45],2 Plaintiff’s Reurged
Request for Extension to Provide an Expert Witness [Docs. # 46],3 and Defendant
National ProSource, Inc.’s Motion for Continuance [Doc. # 60].4 These motions all
are now ripe for consideration. Having carefully considered the parties’ submissions,

1

Invesco and ProSource have responded, see Docs. ## 51, 57, and Plaintiff has replied,
see Doc. # 53.

2

Defendants Invesco, Matrix, and Pro Source have responded, see Docs. ## 50, 52, 58,
and Plaintiff has replied, see Doc. # 54.

3

Only ProSource has responded to Plaintiff’s Reurged Request for Extension. See
Doc. # 56. At a February 16, 2012 hearing, the Court denied as premature Plaintiff’s
Request for Extension to Provide an Expert Witness [Doc. # 33], see Order [Doc.
# 42], but the similar motion is now ripe.

4

This motion became ripe 21 days after it was filed, and Plaintiff has not submitted any
opposition. The Motion is deemed unopposed pursuant to Local Rule 7.4.

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all matters of record and the applicable law, the Court grants some and denies some
of the relief requested.
I.

BACKGROUND
Plaintiff Stephen Manley proceeding pro se filed an Original Complaint

(“Complaint”) in this case on June 24, 2011, asserting that Defendants Invesco
Investment Services, Invesco Group Services, Inc., Invesco Management Group
(collectively “Invesco”), National ProSource, Inc. (“ProSource”), and Matrix
Resources, Inc. (“Matrix”) violated Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, and Section 605 of the Fair Credit Reporting Act (“FCRA”) by
allegedly obtaining and using Plaintiff’s criminal background history to deny Plaintiff
a job opportunity. Compl. [Doc. # 1], at 2-3. Factually, Plaintiff alleges that
“Defendant(s) has a pattern and a blanket policy to deny employment opportunity to
individuals with criminal records which disparately impacts and adversely affects the
minority applicant pools who are protected classes under the law.” Compl. [Doc. #
1], at 3, ¶ 8. Plaintiff further alleges that the retrieved criminal information “antedated
seven years which also violated plaintiffs [sic] rights under the FCRA § 605 [15
U.S.C. § 1681c] and was used as the sole determinant in denying plaintiff an
employment opportunity.” Id. Defendants each answered the Complaint in July 2011.
Prosource filed a motion for summary judgment which was denied after full briefing.

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2

On November 10, 2011, the Court held a pretrial conference in this case and
discussed with the parties a pretrial schedule. The Court thereafter entered a Docket
Control Order setting January 31, 2012, as the deadline for amending pleadings. See
Order [Doc. # 28]. The parties have engaged in extensive document discovery5 and
depositions of Plaintiff and at least one defense corporate representative. Under the
Docket Control Order, Plaintiff was to have designated his experts and filed an expert
report by April 30, 2012. Defendants were to have done the same by June 15, 2012.
Discovery is to be completed by August 30, 2012.
On April 25, 2012, Plaintiff filed several motions that the Court will address in
turn. See Motion to Amend Complaint [Doc. # 45]; Request to Compel Employment
Records [Doc. # 48]; Reurged Request for Extension to Provide an Expert Witness
[Docs. ## 46].

On June 20, 2012, Defendant ProSource filed a Motion for

Continuance [Doc. # 60]. Plaintiff has also filed affidavits in support of his motions.
See Affidavits [Docs. ## 47, 55].
II.

PLAINTIFF’S REQUEST TO COMPEL UNREDACTED ELECTRONIC
COPIES OF PREVIOUSLY PRODUCED RECORDS
Defendants ProSource and Matrix, two employment agencies, have produced

in redacted form hard copies of job application records of employment seekers other

5

The Court, upon objections by Defendants to Plaintiff’s voluminous and burdensome
document discovery requests, limited Plaintiff to 10 interrogatories and 10 document
requests to each Defendant. See Order [Doc. # 42].

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than Plaintiff. Plaintiff requests an order compelling these Defendants to provide
additional copies of these records in unredacted and electronic form. See Docs. ## 48,
53.6 Plaintiff suspects that Defendants have altered, falsified or engaged in some
spoliation of these records because several of the produced documents contain what
Plaintiff deems to be “irregularities,” such as alleged alterations, redactions, and/or
inconsistencies in information relating to race, sex, and date of application or other
events. See Doc. # 48 at 2.
The Court concludes after careful consideration that Plaintiff’s concerns about
possible spoliation, alteration of documents and falsification of information are
unfounded. The inconsistencies Plaintiff notes in the records are not persuasive
evidence of Defendants’ alteration or spoliation of any materials. Rather, Defendants
have established that any inconsistencies are benign and not evidence of spoliation or
other improper conduct. Furthermore, the redactions made by Defendants are fully
appropriate. Production of job application and associated personal records without
redactions would be a gross and unnecessary invasion of privacy of the individuals
who are the subjects of the records in issue.

6

Plaintiff refers to Invesco at the outset of its Motion to Compel, see Doc. # 48, at 5,
but does not allege any concerns about specific records Invesco has produced. See
Reply [Doc. # 53], at 2, 4. Accordingly, to the extent Plaintiff’s Motion to Compel
is intended to refer to Invesco, the Motion is DENIED.

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4

Additionally, there is no need for Defendants to provide the documents to
Plaintiff a second time in order to produce them in electronic form. The hard copies
produced by Defendants are sufficient under present circumstances. Accordingly,
Plaintiff’s Request to Compel Records [Doc. # 48] is DENIED.
III.

PLAINTIFF’S MOTION TO AMEND OR SUPPLEMENT COMPLAINT
Plaintiff seeks leave to amend or supplement his Complaint, see Doc. # 45, to

add or clarify federal claims for violations of Title VII,7 the Civil Rights Act of 1991,8
the FCRA § 605,9 and 42 U.S.C. § 1983, as well as to add completely new state law
claims for violations of the Texas Labor Code §§ 21.051, 21.052, and 21.056, plus a
claim under the Texas Business and Commerce Code § 20.05. Defendants all
strenuously oppose this relief on the grounds that the new claims greatly expand this
suit late in the discovery process, that there is no reasonable basis for the late
amendments, that written discovery and depositions would need to be reopened, and
that many of the proposed claims are futile.
Plaintiff contends he only learned of these new claims at his own deposition,
when he was shown several documents by Matrix’s counsel, and at the deposition of
Mike Sanner, the Managing Director of Matrix’s Houston office. Plaintiff filed this
7

42 U.S.C. § 2000e et seq.

8

42 U.S.C. § 1981.

9

15 U.S.C. § 1681c.

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Motion on April 25, 2012, almost three months after the amendment deadline set by
the Court and parties at the pretrial conference.
Plaintiff’s Motion to Amend is governed by Rule 16(b)(4) of the Federal Rules
of Civil Procedure. Rule 16(b)(4) provides that “[a] schedule may be modified only
for good cause and with the judge’s consent.” Good cause is met when the party
seeking relief demonstrates that “the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.” S & W Enters., L.L.C. v. SouthTrust
Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003) (citation omitted); see Marathon
Fin. Ins., Inc. v. Ford Motor Co., 591 F.3d 458, 470 (5th Cir. 2009); Fahim v.
Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Mere inadvertence on
the part of the movant and the absence of prejudice to the non-movant are insufficient
to establish good cause. See Geiserman v. MacDonald, 893 F.2d 787, 791 (5th
Cir.1990); Ellipse Commc’ns, Inc. v. Caven, 2009 WL 734035, *1 (N.D. Tex. Mar.
19, 2009). Instead, the movant must show that “the deadlines cannot reasonably be
met despite the diligence of the party needing the extension.” Marathon, 591 F.3d at
470 (citing S & W Enters., 315 F.3d at 535). District courts are afforded “a great deal
of deference in determining whether to modify scheduling orders, especially where,
as here, the record suggests that the movant repeatedly demonstrated a lack of
diligence.” Bilbe v. Belsom, 530 F.3d 314, 317 (5th Cir. 2008). “In the context of a
motion for leave to amend, the court may deny the motion if the movant ‘knows or
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should have known of the facts upon which the proposed amendment is based but fails
to include them in the original complaint.’” Udoewa v. Plus4 Credit Union, 2010 WL
1169963, *2 (S.D. Tex. Mar. 23, 2010) (Rosenthal, J.) (quoting Pallottino v. City of
Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)); see also Hawthorne Land Co. v.
Occidental Chem. Corp., 431 F.3d 221, 227 (5th Cir. 2005) (per curiam) (denying
leave to amend under Rule 16(b) where plaintiff failed to demonstrate why a legal
theory was not asserted in a previous motion to amend); Parker v. Columbia Pictures
Indus., 204 F.3d 326, 340-41 (2d Cir. 2000) (denying leave to amend under Rule
16(b) where plaintiff “had all the information necessary” to support the new claim at
the time he filed the lawsuit); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th
Cir. 1998) (denying leave to amend under Rule 16(b) when facts were known to
plaintiff at time of first complaint); see also Pope v. MCI Telecomms. Corp., 937 F.2d
258, 263 (5th Cir. 1991) (denying, under Rule 15(a)’s more lenient standard, a latefiled motion to amend a complaint to include claims based on same facts).
To determine whether the moving party has established “good cause,” the Fifth
Circuit has a longstanding test. Courts are to consider the following four factors: “(1)
the explanation for the failure to timely move for leave to amend; (2) the importance
of the amendment; (3) potential prejudice in allowing the amendment; and (4) the
availability of a continuance to cure such prejudice.” Marathon, 591 F.3d at 470
(citing Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003)); S&W
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Enters., 315 F.3d at 536 (citing Reliance Ins. Co. v. La. Land & Expl’n Co., 110 F.3d
253, 257 (5th Cir.1997)).
Plaintiff has failed to make the necessary showing under several of the four
“good cause” factors to justify adding a new federal claim under 42 U.S.C. § 1983 or
any state law claims.10 Most importantly, Plaintiff has not given persuasive reasons
why he could not have alleged these claims by the January 31, 2012, deadline
established by the Docket Control Order. Plaintiff’s references to his and Sanner’s
depositions are unconvincing, as Plaintiff knew well before April 25, the date of his
Motion, the facts he alleges in the proposed Amended Complaint. Indeed, the fact that
Plaintiff apparently saw for the first time during his own deposition the job
applications of several other applicants and the fact that Plaintiff learned from Sanner
the chronology of Matrix contacting Invesco about Plaintiff’s availability are not
sufficient to justify adding the new claims Plaintiff seeks to include.11 The facts
learned by Plaintiff in his own deposition and that of Sanner are not sufficient to
warrant a massive expansion of this case, which has been pending more than a year
10

To the extent Plaintiff seeks to clarify his claims under Title VII (42 U.S.C. § 2000e
et seq.), the Civil Rights Act of 1991 (42 U.S.C. § 1981), and FCRA § 605 (15 U.S.C.
§ 1681c), the Court will grant Plaintiff’s request to supplement his Complaint.

11

It is noted that Plaintiff had a listing on monster.com indicating that he was interested
in the type of position that Invesco allegedly had available. Thus, it is not apparent
why it was improper for an employment agency to forward Plaintiff’s information to
Invesco without Plaintiff’s express permission insofar as the information was obtained
solely from the monster.com posting.

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and is close to the end of the originally set discovery period. Indeed, Plaintiff
acknowledges that the facts on which he bases his proposed new claims are the same
as those on which he based the claims in his Complaint.12 Insofar as Plaintiff seeks
to add state law claims, this request amounts to an attempted wholesale revision of the
legal bases of this suit, without any explanation of the importance of these additions.
Plaintiff has not met his burden under the first factor of the Rule 16 July 19, 2012
good cause test.
Plaintiff also does not explain why any of the additional claims are important
to him, given that he asserted in his Complaint a Title VII claim, a 42 U.S.C. § 1981
claim,13 and an FCRA § 605 claim. He therefore has not met the second factor of the
12

Any claim Plaintiff may be seeking to assert under 42 U.S.C. § 1983, in any event,
appears futile. To state a claim under § 1983, a plaintiff must (1) allege a violation
of rights secured by the Constitution or laws of the United States and (2) demonstrate
that the alleged deprivation was committed by a person acting under color of state
law. James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008) (emphasis
added). Plaintiff alleges no participation of any person acting under color of state
law.

13

Section 1981 prohibits racial discrimination in the making and enforcement of
contracts. “The term ‘make and enforce contracts’ includes the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.
§ 1981(b). Claims of racial discrimination brought under § 1981 are “governed by
the same evidentiary framework” applicable to claims of employment discrimination
brought under Title VII.’” Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010) (per
curiam) (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 281 n.7 (5th Cir. 2004));
Lauderdale v. Tex. Dept. of Crim. Justice, Inst. Div., 512 F.3d 157, 166 (5th Cir.
2007) (“[I]nquiry into intentional discrimination is essentially the same for actions
brought under 1981 and 1983, and Title VII”); Jones v. Robinson Prop. Group, L.P.,
427 F.3d 987, 992 (5th Cir. 2005) (citing Raggs v. Miss. Power & Light Co., 278 F.3d

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good cause test.
Regarding the third and fourth factors, Defendants have established that there
is significant prejudice to permitting the amendment sought. Discovery would need
to be reopened. Document production would need to be reconsidered and potentially
redone. Witnesses would need to be re-deposed. The parties and the Court would
need to undertake entirely different legal analysis. Matrix has already filed a second
motion for summary judgment. See Motion [Doc. # 62]. While a continuance to
reopen discovery theoretically could be granted, the continuance would likely entail
substantial delay in this case, which will cost Plaintiff and Defendants valuable
resources and prolong resolution of this matter.
The Court accordingly DENIES Plaintiff’s Motion to Amend [Doc. # 45] to
add new federal or state claims to this case, except insofar as Plaintiff seeks to
elaborate on his pre-existing Title VII, 42 U.S.C. § 1981, and FCRA § 605 claims.
To that limited extent, his Motion to Amend is GRANTED in part.
IV.

REQUESTS FOR EXTENSIONS OF TIME
Plaintiff seeks an extension to designate expert witnesses and, presumably, to

provide an expert report containing the opinions of that expert witness [Doc. # 46].
This request will be granted but requires adjustment of other deadlines. Fact discovery

463, 468 (5th Cir. 2002)).
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was delayed because of discovery disputes, and fact discovery has not yet been
completed. Moreover, it is possible that the parties have delayed discovery due to the
pendency of Plaintiff’s motions.
ProSource also seeks a continuance of the Joint Pretrial Order deadline and the
trial date. It does not appear that Plaintiff opposes this relief. A short continuance of
the Pretrial Order submission and the Docket Call dates are appropriate. Therefore,
Plaintiff’s Motion for extension of time to designate experts and serve expert reports
[Doc. # 46] and ProSource’s Motion for Continuance [Doc. # 60] are GRANTED.
The date of trial will be set at Docket Call. It is accordingly ORDERED that the
Docket Control Order is AMENDED to include the following deadlines:
Fact Discovery Deadline:

August 22, 2012

Plaintiff’s Expert Disclosure deadline:

August 23, 2012

Defendant’s Expert Disclosure deadline:

September 10, 2012

Expert Discovery Deadline:

October 5, 2012

Motions Deadline:

October 19, 2012

Mediation (Required) Deadline:

December 29, 2012

Joint Pretrial Order due:

February 11, 2013

Docket Call (4:00 p.m.):

February 19, 2013

It is SO ORDERED.
SIGNED at Houston, Texas this 20th day of July, 2012.
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