Lozano v. Baylor University et al

Filing 49

ORDER MOOTING 29 Motion to Dismiss ; DENYING 42 Motion to Stay Case; GRANTING 46 Motion to Amend Complaint; DENYING 25 Motion for Reconsideration. Signed by Judge Robert Pitman. (jgb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
DOLORES LOZANO,

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Plaintiff,
v.
BAYLOR UNIVERSITY, et al.,
Defendants.

6:16-CV-403-RP

ORDER
Before the Court in the above-entitled action are Plaintiff’s Motion for Reconsideration,
(Dkt. 25); Defendant’s Motion to Dismiss First Amended Complaint, (Dkt. 29); Plaintiff’s Motion to
Stay, (Dkt. 42); and Plaintiff’s Motion for Leave to File a Second Amended Complaint, (Dkt. 46).
Having reviewed the filings, the case file, and applicable law, the Court enters the following order.
I. BACKGROUND
Plaintiff Dolores Lozano (“Plaintiff”) filed suit against Defendants Baylor University
(“Baylor”) and the Baylor University Board of Regents (“the Board of Regents”) (collectively,
“Defendants”) on October 11, 2016. (Compl., Dkt. 1). Plaintiff’s initial complaint alleged violations
of Title IX of the Education Amendments Act of 1972 (“Title IX”), 20 U.S.C. § 1681, et seq., as well
as the Texas common law doctrines of negligence and gross negligence. (Id. ¶ 7, 9). Those claims
stemmed from multiple alleged assaults of Plaintiff by Devin Chafin, then a student-athlete and
member of Baylor’s football team. (Id. ¶¶ 13–63).
Baylor filed a motion to dismiss, (Dkt. 5), and Plaintiff filed a motion for leave to amend her
complaint to include a claim under the Texas common law doctrine of negligent hiring, retention,
training, and supervision. (Prop. Am. Compl., Dkt. 16). After considering both motions, the Court
granted Baylor’s motion to dismiss with respect to Plaintiff’s Title IX, negligence, and gross
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negligence claims. (Order, Dkt. 20, at 15). With respect to those claims, the Court also denied
Plaintiff leave to amend. (Id.). As to Plaintiff’s claims for negligent hiring, retention, and supervision,
however, the Court granted Plaintiff’s motion for leave to amend. (Id.). That order is the subject of
Plaintiff’s motion for reconsideration. (Dkt. 25).
The Court will consider each pending motion—including Plaintiff’s Motion for
Reconsideration, (Dkt. 25); Plaintiff’s Motion for Leave to File a Second Amended Complaint, (Dkt.
46); and Defendant’s Motion to Dismiss First Amended Complaint, (Dkt. 29)—in turn.
II. MOTION FOR RECONSIDERATION
Motions for reconsideration may be considered under either Federal Rule of Civil Procedure
54(b) or Federal Rule of Civil Procedure 59(e), depending on the circumstances. Austin v. Kroger
Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017). The Fifth Circuit recently explained that “Rule 59(e)
governs motions to alter or amend a final judgment,” while “Rule 54(b) allows parties to seek
reconsideration of interlocutory orders and authorizes the district court to revise at any time any
order or other decision that does not end the action.” Id. (internal quotation marks and citations
omitted). Because Plaintiff seeks reconsideration of an order granting a motion to dismiss and
denying leave to amend, the Court will consider her motion under Rule 59(e).
A motion under Rule 59(e) must “‘clearly establish either a manifest error of law or fact or
must present newly discovered evidence.’” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005)
(quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Relief is also appropriate where
there has been an intervening change in controlling law. See Schiller v. Physicians Res. Grp. Inc., 342
F.3d 563, 567 (5th Cir. 2003). Motions under Rule 59(e) “cannot be used to raise arguments which
could, and should, have been made before the judgment issued.” Id. (citations omitted). While a
district court has “considerable discretion” to grant or deny a motion under Rule 59(e),
reconsideration is an extraordinary remedy that courts should use sparingly. Templet v. HydroChem Inc.,
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367 F.3d 473, 479 (5th Cir. 2004); see also In re Goff, 579 F. App’x 240, 245 (5th Cir. 2014) (“A motion
for reconsideration should only be granted in extraordinary circumstances.”) (citations omitted).
Having reviewed Plaintiff’s motion for reconsideration and the responsive filings thereto, the
Court is satisfied that Plaintiff has not established her entitlement to reconsideration under Rule
59(e). 1 Her Motion for Reconsideration, (Dkt. 25), is therefore DENIED.
III. MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
A. Legal Standard
Federal Rule of Civil Procedure 15 allows parties to seek leave of the court to amend their
pleadings after the time period for amendment as a matter of course has passed. Fed. R. Civ. P.
15(a)(2). The decision regarding whether to grant leave “lies within the discretion of the court, but
there is a bias in favor of granting leave.” RTIC Drinkware, LLC v. YETI Coolers, LLC, 2016 WL
5957276, at *1 (W.D. Tex. Oct. 13, 2016) (citing Dussuoy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597
(5th Cir. 1981)). Indeed, the Fifth Circuit has cautioned that “‘discretion’ may be a misleading term,
for [R]ule 15(a) severely restricts the judge’s freedom, directing that leave to amend ‘shall be freely
given when justice so requires.’” Dussuoy, 660 F.2d at 597 (quoting Fed. R. Civ. P. 15(a)(2)).
In deciding whether to grant leave to file an amended pleading, a district court may consider
factors 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, and
futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). In assessing futility of amendment,
the Court should consider whether the proposed amendment could survive a motion to dismiss.
Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir. 2000) (“[W]e join our sister circuits that

The Court would reach the same conclusion were it to consider Plaintiff’s motion pursuant to Rule 54(b), under which
“the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of
new evidence or an intervening change in or clarification of the substantive law.’” Austin, 864 F.3d at 336 (quoting
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990)).

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have interpreted [futility] to mean that the amended complaint would fail to state a claim upon
which relief could be granted.”) (citations omitted).
B. Discussion
Baylor argues that Plaintiff’s motion for leave to file a second amended complaint should be
denied because (1) “her hiring of new counsel does not warrant a ‘do-over,’” (Resp. Mot. Leave,
Dkt. 47, at 1); (2) “Plaintiff has already been given a fair opportunity to correct her pleading,” (id.);
“Plaintiff is bound by the strategic decisions of her first lawyer,” (id. at 2); “Plaintiff’s proposed
pleading does not present any facts that were not available to her when she filed her prior
complaints,” (id. at 3); and “[t]he proposed amendments would be futile,” (id.).
With respect to Baylor’s first three arguments, the Court deems it sufficient to note that
Baylor cites virtually no case law discussing a nexus between those arguments and the factors courts
should consider when deciding whether to grant leave to file an amended pleading. 2 Having
undertaken that analysis regardless, the Court concludes both that (1) there is no evidence of undue
delay, 3 bad faith, or dilatory motive on the part of Plaintiff; and that (2) Baylor—which would
merely be subjected to re-briefing certain issues in light of new facts and legal arguments—is not in
danger of suffering undue prejudice.
Moreover, the Court has considered Baylor’s futility arguments as to each of Plaintiff’s
claims. After reviewing the full text of Plaintiff’s proposed amendment, the Court concludes that
Baylor has not demonstrated that the proposed amended complaint fails altogether to state a claim
on which relief may be granted. As such, and given the court’s interest in judicial economy, the
Baylor’s main support for its argument appears to be Halprin v. Fed. Deposit Ins. Corp., No. 5:13-CV-1042, 2016 WL
5724606 (W.D. Tex. Sept. 30, 2016), in which the undersigned denied the plaintiffs leave to file a proposed seventh
amended complaint. (Resp. Mot. Amend, Dkt. 47, at 3). In the instant case, by contrast, Plaintiff seeks leave to file a
second amended complaint.
3 Baylor, relying on the fact that Plaintiff’s proposed amended complaint includes details about events within her
personal knowledge at the time she filed her original complaint, argues that her motion should be denied because she
engaged in “undue and unexplained delay.” (Resp. Mot. Amend, Dkt. 47, at 4). As Plaintiff filed the instant motion less
than three months after Baylor filed its motion to dismiss, the Court disagrees.
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Court finds that the best exercise of its discretion would be to allow the proposed amendment. See,
e.g., Stripling, 234 F.3d at 873 (quoting Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.
2000)) (“The question therefore is whether in the light most favorable to the plaintiff and with every
doubt resolved in his behalf, the complaint states any valid claim for relief.”); Dussuoy, 660 F.2d at
598 (5th Cir. 1981) (“[I]t is appropriate for the court to consider judicial economy and the most
expeditious way to dispose of the merits of the litigation.”).
IV. CONCLUSION
For the reasons stated herein, IT IS ORDERED that:
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Plaintiff’s Motion for Reconsideration, (Dkt. 25), is DENIED;

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Plaintiff’s Motion for Leave to File a Second Amended Complaint, (Dkt. 46), is
GRANTED; and

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Defendant’s Motion to Dismiss First Amended Complaint, (Dkt. 29), is DENIED AS
MOOT.

IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay Proceedings Based on the
Substitution of New Counsel, (Dkt. 42), is DENIED.

SIGNED on July 24, 2018.

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ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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