Yudin v. University of Utah

Filing 32

MEMORANDUM DECISION AND ORDER granting 25 Motion to Amend Complaint: Yudin is hereby instructed to file his Amended Complaint within 14 days of the date of this Order. Signed by Magistrate Judge Dustin B. Pead on 6/12/14 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

YURIY YUDIN,
MEMORANDUM DECISION & ORDER
Plaintiff,
Case No: 2:13-cv-01063
v.
District Court Judge David Nuffer
UNIVERSITY OF UTAH,
Defendant.

Magistrate Judge Dustin B. Pead
(Settlement)

I. BACKGROUND
On November 27, 2013, Plaintiff Yuriy Yudin (“Yudin”) filed his pro se complaint
against Defendant University of Utah (“University”) alleging sexual harassment and violations of
the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, 42
U.S.C. §1983 and §1984, and the Occupational Safety and Health Act of 1970 (doc. 1).
On February 25, 2014, attorney Mark S. Schwarz (“Schwarz”) entered a limited Notice of
Appearance on behalf of Yudin for purposes of appearing at a Court ordered settlement
conference between Yudin and the University (doc. 19). During the March 5, 2014, conference,
the parties agreed to re-convene at a later date in order to allow Yudin, with the assistance of
counsel, to file an Amended Complaint (doc. 20).
Consistent therewith, on May 19, 2014, Yudin filed his currently pending “Motion For
Leave To Amend Complaint” seeking to affect two general changes to his original pro se

pleading: (1) removing and or changing claims against the University; and (2)including claims
against newly added employee defendants.
II. ANALYSIS
1. University Defendant
Yudin’s Amended Complaint seeks to remove the §1983 claims and to “disaggregate” the
remaining claims against the University. (doc. 25, p. 2, doc. 25-2).
Pursuant to Federal Rule of Civil Procedure 15, a party may amend its pleading with the
opposing party’s written consent. Fed. R. Civ. P. 15(a)(2). Here, the University consents to
Yudin’s amendment and accordingly amendment is granted (doc. 25-1, doc. 28).1
2. Employee Defendants
Yudin’s Amended Complaint seeks to add new individual defendants who were not
previously named in the original complaint (doc. 25). Specifically, Yudin’s amended pleading
alleges causes of action for violations of Title VII, 42 U.S.C. §1983 and § 1985 and the ADA,
against University employees Richard Tison, Scott Fullmer, David Quinlivan, and Brian Nicolls
(collectively “Employee Defendants”) both individually and in their official capacities. Id.2

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In a May 19, 2014, email correspondence between University counsel Yvette Donosso
(“Donosso”) and Mr. Schwarz, Ms. Donosso indicated that, “I only represent the University, and
thus can only consent on its behalf” (doc. 25-1). Accordingly, the University’s consent to
amendment, pursuant to rule 15(a)(2), does not extend to the individual employee defendants.
Yudin notes, however, that the State is required by statute to defend and indemnify employees,
and that University has not filed an official opposition to Yudin’s amendment seeking the
inclusion of employee defendants (doc. 29); See Utah Code Ann. §63G-7-902.
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The Amended Complaint does not allege all of the stated causes of action against each
of the Employee Defendants (doc. 25-2). Specifically, a violation of the ADA for discrimination
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Pursuant to Federal Rule of Civil Procedure 15, the court should “freely give leave [to
amend] when justice so requires.” Fed. R. Civ. P 15(a)(2); see also Foman v Davis, 371 U.S.
178, 182 (1962) (stating that the mandate of rule 15(a) “is to be heeded” and that “[i]n the
absence of any apparent or declared reason. . . the leave sought should, as the rules require, be
‘freely given.’” (quoting Fed. R. Civ. P. 15(a)). As noted by the Tenth Circuit, rule 15 is
intended “to provide litigants the maximum opportunity for each claim to be decided on its
merits rather than on procedural niceties.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204
(10th Cir. 2006) (quotations and citations omitted).
It is within the sound discretion of the trial court to grant a party’s leave to amend, and a
court’s decision to “[r]efus[e] leave [ ] is generally only justified upon a showing of undue delay,

and retaliation is alleged against Employee Defendants Tison, Quinlivan and Nicholls in their
official capacities (first and second causes of action), a violation of the ADA for
interference/coercion is alleged against Employee Defendant Nicholls in his official capacity
(third cause of action), a violation of the ADA for failure to accommodate is alleged against
Employee Defendant Nicholls in his official capacity (fourth cause of action), a violation of Title
VII for disparate treatment is alleged against Employee Defendants Fullmer, Tison, Quinlivan
and Nicholls in their official capacities (fifth cause of action), a violation of Title VII for hostile
work environment is alleged against Employee Defendants Fullmer, Tison and Quinlivan in their
official capacities (sixth cause of action), a violation of Title VII for retaliation is alleged against
Employee Defendants Fullmer, Tison ,Quinlivan and Nicholls in their official capacities (seventh
cause of action), an equal protection violation of the Fourteenth Amendment pursuant to 42
U.S.C. §1983 is alleged against Employee Defendants Fullmer, Tison, Quinlivan and Nicholls
individually (eighth cause of action), a claim for conspiracy to deprive equal protection under the
Fourteenth Amendment on the basis of national origin pursuant to 42 U.S.C. §1985(3) is alleged
against Employee Defendants Tison and Quinlivan in their individual capacities (ninth cause of
action), a violation of Fourteenth Amendment due process pursuant to 42 U.S.C. §1983 OSHA
violations is alleged against Fullmer, Tison and Quinlivan individually (tenth cause of action),
and a substantive due process violation pursuant to 42 U.S.C. §1983 is alleged against Fullmer,
Tison and Quinlivan individually (eleventh cause of action) (doc. 25-2).
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bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or
undue prejudice to the opposing party, or futility of amendment.” Castleglen Inc. v. Resolution
Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993) (citing Foman 371 U.S. at 182)).
In considering Yudin’s amendments related to the Employee Defendants, the Court
examines the relevant factors of undue delay, bad faith, dilatory motive, undue prejudice and
futility of amendment.
A. Undue Delay, Bad Faith and Dilatory Motive
Upon review, the Court finds that Yudin’s amendment is not brought with any undue
delay, bad faith or dilatory motive. Instead, the proposed amendments stem from Yudin’s
retention of legal counsel. With the assistance of counsel, Yudin’s Amended Complaint clarifies
the underlying facts and legal issues thereby ultimately facilitating a more efficient litigation
process.
B. Undue Prejudice
The Tenth Circuit has determined that the “most important [ ] factor in deciding a motion
to amend the pleadings, is whether the amendment would prejudice the nonmoving party.”
Minter 451 F.3d at 1207. Courts “typically find prejudice only when the amendment unfairly
affects the defendants ‘in terms of preparing their defense to the amendment’” Id. (citing Patton
v. Guyer, 443 F.2d 79, 86 (10th Cir. 1971)). While a certain degree of prejudice is inherent in the
addition of new parties to an action, courts generally find the prejudice to only be “undue” when
the amendment seeks to add claims that “arise out of a subject matter different from what was set
forth in the complaint and raise significant new factual issues.” Minter, 451 F.3d at 1208.
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Upon review, the Court concludes that Yudin’s amendments do not expose the Employee
Defendants to undue prejudice. Instead, the claims set forth in the Amended Complaint stem
from the same facts, events and authorities as those stated in Yudin’s original pro se complaint.
While the Amended Complaint contains more detail, such detail serves to properly frame and
clarify the relevant legal issues.
C. Futility of Amendment and Statute of Limitations
If an amended claim is barred under the relevant statute of limitations period, then
amendment would be futile and must be denied. Accordingly, as to the Employee Defendants,
the Court considers the relevant limitations periods for Yudin’s amended claims.
i) 42 U.S.C. §1983 and 42 U.S.C. §1985 Claims
The law of the forum state determines the relevant statute of limitations period that is
applicable to cases brought under §1983 and §1985. See Fratus v. DeLand, 49 F.3d 673, 675
(10th Cir. 1995) (citing Bd. Of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L.Ed. 2d
440 (1980)); see also Blake v. Dickason, 997 F.2d 749, 750 (10th Cir. 1993) (“[T]he forum state’s
personal injury [statute of limitations] should be applied to all §1983 claims.”). In Utah, the
“four year residual statute of limitations. . .governs suits brought under section 1983.” Brock v.
Herbert, 435 Fed. Appx. 759, 762 (10th Cir. 2011) (quoting Fratus, 49 F.3d at 675); see Wallace
v. Grey, 2008 U.S. Dist. LEXIS 116380 *16, 2:08-cv-311-TS-PMW (Nov. 20, 2008) (“[t]he
applicable statute of limitations for Plaintiff’s claims under §§ 1983 and 1985 is Utah’s four-year
residual statute of limitations contained in Utah Code § 78B-2-307(3).”) .

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Here, because the relevant events took place from January 2012 to March 2012, the four
limitations period has not run on Yudin’s §1983 and §1985 claims against the Employee
Defendants.
ii) Title VII and ADA Claims
With regard to Yudin’s Title VII and ADA claims, the issue of futility is slightly more
complicated since Yudin admits that the statute of limitations as to these causes of action has run.
In support of amendment, however, Yudin argues that the limitations period is not an
impediment since his claims “relate back” to the operative complaint (doc. 25).
Pursuant to Federal Rule of Civil Procedure 15(c)(1), if the applicable statute of
limitations has run, an amended pleading may “relate back” to the original complaint when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction or
occurrence set out– or attempted to be set out—in the original pleading; or
(C) the amendment changes the party of the naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m)
for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on
the merits; and
(ii) knew or should have know that the action would have been brought against it,
but for a mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c)(1)(A-D). The purpose of the relation back doctrine is “to balance the
interest of the defendant protected by the statute of limitations with the preference expressed in
the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes

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on their merits.” Krupski v Costa Crociere S.p.A., 560 U.S. 538, 550, 130 S. Ct. 2485, 177 L.Ed.
2d 48 (2010); See e.g. Advisory Committee’s 1996 Notes 122; 3 Moore’s Federal Practice
§§ 15.02[1], 15.19[3][a] (3d ed. 2009).
Under the plain language of the statute, rule 15(c)(1)(B) applies to an amendment that
asserts a new claim or defense, while rule 15(c)(1)(C) applies to an amendment that changes a
party or the name of a party. See Gorsuch, Ltd. v. Wells Fargo Nat;l Bank Sass’n, 2013 U.S.
Dist. LEXIS 174681 *22; 11-cv-00970-PAB-MEH (Sept. 16, 2013). Both provisions are
applicable here.
First, pursuant to 15(c)(1)(B), as long as a “factual nexus” exists between the original and
the amended complaint, the amended claims should be liberally construed to relate back to the
original complaint. Id. at *23 (citing Benton v Bd. Of Cnty. Comm’rs, 2007 U.S. Dist LEXIS
84157, 06-cv-01406-PSF (D. Colo. Nov. 14, 2007), aff’d 303 F.App’x 625 (10th Cir. 2008)
(unpublished) (quoting Grattan v Burnett, 210 F.2d 160, 163 (4th Cir. 1983)). Generally,
“amendments will relate back if they amplify the facts previously alleged, correct a technical
defect in the prior complaint, assert a new legal theory of relief or add another claim arising out
of the same facts.” Benton, 2007 U.S. Dist. LEXIS 84157 (quoting Kidwell v. Bd. of Cnty.
Comm’rs of Shawnee Cnty., 40 F. Supp. 2d 1201, 1217 (D. Kan. 1998), aff’d, 189 F.3d 478 (10th
Cir.), cert denied, 528 U.S. 1064, 120 S,Ct. 620, 145 L.Ed. 2d 514 (1999)). Here, Yudin’s Title
VII and ADA claims against the Employee Defendants arise from the same facts, dates,
occurrences and conduct as set forth in the original pleading. Yudin’s proposed amendments
clarify and detail the same events originally set forth, or attempted to be set forth, by Mr. Yudin
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in his pro se pleadings, and involve Yudin’s employment with the same Department, the same
supervisors, and the same actions and statements made on the same dates as originally alleged.3
Accordingly, given the strong factual nexus, the Court concludes that Yudin’s claims from the
Amended Complaint relate back to the original complaint.
Next, because the Court has found that rule 15(c)(1)(B) is satisfied as to the addition of
new claims, the Court must also determine whether within rule 4(m)’s one hundred twenty (120)
day period for service after a complaint is filed, the new Employee Defendants, consistent with
rule 15(c)(1)(C): “(i) received such notice of the action that it will not be prejudiced in defending
on the merits; and (ii) knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(b)(1)(C).
Here, Yudin persuasively argues that given the context of this dispute, the Employee Defendants
share an “identity of interest” with the University that “justif[ies the] application of the relationback protections of Rule 15(c)(1)(C)”. See Benson v University of Maine System, 857 F. Supp.2d
171 (D. Me. 2012) (finding sufficient identity of interest between the University and its
Chancellor to justify relation back); Lynch v. Massachusetts State Senate, 495 F. Supp 2d 175,
177 (D. Mass. 2007) (citing Young v Lepone, 305 F. 3d 1, 15 (1st Cir. 2002) (internal citations

3

Compare, ¶ 31 of the original complaint “[Yudin] reported to Mr. Nichols [sic]
conditions of severe discriminations [sic], asked for disability accommodation and hazardous
conditions of my work.” with ¶ 96 of the amended complaint, “Yudin informed Nicholls of the
discriminatory terms and conditions of his work and of the hostile environment due to his
national origin.” Compare, ¶32 of the original complaint alleging that Nicholls “intimidated me
that in case of my disability [sic] I would lose my job any way [sic].” with ¶ 113 “Nicholls told
Yudin that by seeking accommodation through Nicholls, his supervisor could declare Yudin unfit
for the job without [the University] attempting reasonable accommodation.” (doc. 1, doc. 25-2).
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omitted) (defining identity of interest as “parties that are ‘so closely related in their business
operations or other activities that the institution of action against one serves to provide notice of
the litigation to the other.’”)). In this case, given the identity of interest and inherent relationship
between the University employer and its employees, the Court concludes that the Employee
Defendants received sufficient notice of the action and would not be prejudiced in defending
against the case.
Moreover, Yudin further persuades the Court that the Employee Defendants knew or
should have known that the action would have been brought against them. Specifically, for
purposes of this provision, the relation back inquiry “asks what the prospective defendant knew
or should have known during the Rule 4(m) period, not what the plaintiff knew or should have
known at the time of filing [his] original complaint.” Krupski v Costa Crociere S.p.A., 560 U.S.
538, 548 (2010) (Emphasis in original). Here, despite the failure of Yudin to include the
employees as parties in his pro se pleading, given that they were interviewed and testified at the
University’s Office of Equal Opportunity investigation, Yudin’s University appeal, Utah’s
Occupational Safety and Health Administration investigation and Utah’s Anti-discrimination and
Labor Division investigation, and in conjunction with the employees presumable involvement in
assisting the University in preparing its answer and defenses, these individuals knew or should
have known of the allegations against both them and the University.

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III. ORDER
Accordingly, consistent with the mandate of Federal Rule of Civil Procedure15 and for
the reasons now stated herein, the Court hereby GRANTS Yudin’s Motion To Amend the
Complaint (doc. 25).
Yudin is hereby instructed to file his Amended Complaint within fourteen (14) days of
the date of this Order.
DATED this 12th day of June, 2014.

BY THE COURT:

Dustin B. Pead
United States Magistrate Judge

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