Opinion
Civil Action No. 18-cv-02189-PAB-KLM
05-13-2019
MARIAM OHIMAI, Plaintiff, v. DEVELOPMENTAL DISABILITIES RESOURCE CENTER, a/k/a DDRC, Defendant.
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motion for Leave of Court to Amend Her Complaint [#31] (the "Motion") and Response to Show Cause [#51] (the "Response to the Order to Show Cause"). Defendant filed a Response [#38] in opposition to the Motion and Plaintiff did not file a reply. The Motion is referred to the undersigned for disposition. See [#35]. For the reasons set forth below, the Court RECOMMENDS that the Motion [#31] be GRANTED and ORDERS that Plaintiff's obligations stated in the undersigned's Order to Show Cause [#50] are DISCHARGED.
"[#31]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order and Recommendation.
A magistrate judge may issue orders on nondispositive motions only. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1461, 1462-63 (10th Cir. 1988). Whether motions to amend are dispositive is an unsettled issue in the 10th Circuit. Hatten v. Freeborn, No. 09-cv-02729-CMA-MJW, 2010 WL 1677772, at *2 (D. Colo. Apr. 26, 2010) (citing Chavez v. Hatterman, No. 06-cv-02525-WYD-MEH, 2009 WL 82496, at *1 (D. Colo. Jan. 13, 2009)). When an order on a motion to amend removes or precludes a defense or claim from the case it may be dispositive. Sunflower Condo. Ass'n, Inc. v. Owners Ins. Co., No. 16-cv-2946-WJM-NYW, 2018 WL 1755784, at *1 (D. Colo. Apr. 12, 2018) (quoting Cuenca v. Univ. of Kan., 205 F. Supp 2.d 1226, 1228 (D. Kan. 2002)). For the purposes of resolving the present Motion, it is assumed that the issue is dispositive and requires a recommendation.
I. Background
Plaintiff Mariam Ohimai ("Plaintiff") initiated this employment discrimination and civil rights case against her former employer, Defendant Developmental Disabilities Resource Center ("Defendant"), on June 14, 2018, in Jefferson County District Court. Compl. [#3]. In her original Complaint [#3], Plaintiff asserted the following seven "counts": (1) "wrongful termination/constructive discharge"; (2) negligent infliction of emotional distress; (3) sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (4) age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621; (5) "reprisal for engaging in protected activities"; (6) "hostile and abusive work environment"; and (7) "back pay for vacations and breaks." Id. ¶¶ 16-39.
On August 24, 2018, Defendant removed the case to this Court. Notice of Removal [#1]. On August 31, 2018, Defendant filed its Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [#8] (the "First Motion to Dismiss"), seeking to dismiss all seven "counts." Plaintiff did not file a response to Defendant's First Motion to Dismiss. Instead, Plaintiff filed her [First] Amended Complaint [#14] (the "First Amended Complaint") on October 15, 2018, as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1). In light of the amended pleading, Defendant's First Motion to Dismiss [#8] was denied as moot on October 25, 2018. Minute Order [#16]. In comparison to Plaintiff's original Complaint, the First Amended Complaint generally asserts the same seven "counts" but changes the title of Count I from "wrongful termination/constructive discharge" to "breach of contract." Compare Compl. [#3] at 4, with First Am. Compl. [#14] at 4. As of the date of this Order and Recommendation, Plaintiff's First Amended Complaint is the operative pleading in this matter.
Plaintiff initially filed a First Amended Complaint [#12] on October 12, 2018, which was stricken by the Court due to Plaintiff's failure to comply with D.C.COLO.LCivR 10.1(e) and 15.1(a). Minute Order [#13].
After Plaintiff filed her First Amended Complaint, Defendant renewed its request to dismiss all of Plaintiff's claims by filing its Motion to Dismiss Amended Complaint [#19] (the "Second Motion to Dismiss") on November 12, 2018. Despite Plaintiff being granted an extension of time to file her response to the Second Motion to Dismiss on or before December 7, 2019, no response was filed. Minute Order [#24]. Rather, on December 7, 2019, Plaintiff filed her Motion to Partially Dismiss Some Claims [#26] (the "Motion to Voluntarily Dismiss") in which she seeks to voluntarily dismiss Count I (breach of contract), Count II (negligent infliction of emotional distress), and Count VII ("back pay for vacations and breaks"). Defendant has not filed any objection to Plaintiff's Motion to Voluntarily Dismiss which, along with Defendant's Second Motion to Dismiss [#19], currently remain pending before Chief Judge Brimmer.
On December 17, 2018, Plaintiff filed the instant Motion [#31] in which she seeks leave to amend her First Amended Complaint [#14] pursuant to Fed. R. Civ. P. 15(a)(2). Plaintiff tenders a proposed Second Amended Complaint [#34] for filing that includes approximately six new factual allegations and asserts the same seven counts currently found in the First Amended Complaint. Specifically, the tendered Second Amended Complaint includes the following "counts": (1) breach of contract; (2) negligent infliction of emotional distress; (3) racial and/or sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (4) age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621; (5) "reprisal for engaging in protected activities"; (6) "hostile and abusive working environment"; and (7) "back pay for vacations and breaks". [#32] ¶¶ 16-44; see Am. Compl. [#14] ¶¶ 16-44.
Plaintiff improperly filed the proposed Second Amended Complaint [#32] as a separate docket entry. Pursuant to the Local Rules of this District, "[a] party who files an opposed motion for leave to amend or supplement a pleading shall attach as an exhibit a copy of the proposed amended or supplemental pleading... ." D.C.COLO.LCivR 15.1(b) (emphasis added). Nevertheless, in the interest of expediency, the Court considers the merits of Plaintiff's Motion [#31].
Confusingly, Plaintiff includes all seven counts in the proposed Second Amended Complaint despite the fact that, ten days prior to filing the Motion [#31], Plaintiff sought to voluntarily dismiss Counts I, II, and VII in her Motion to Voluntarily Dismiss [#26]. Given this discrepancy, which Defendant points to in its Response [#38], the Court issued an Order to Show Cause [#50] on April 30, 2019. The Court directed Plaintiff to show cause as to why her Motion [#31] should not be denied with respect to those counts that Plaintiff concurrently seeks to dismiss. Order to Show Cause [#50] at 3.
Plaintiff timely filed her Response to the Order to Show Cause [#51] on May 7, 2019. There, Plaintiff first explains that her failure to file a reply regarding the instant Motion [#31] to correct this discrepancy was due to health challenges her attorney was experiencing. Response to the Order to Show Cause [#51] at 1. Plaintiff further states:
To the extent that the Amended Complaint still has the following counts: Breach of Contract (Count I), Negligent infliction of emotional distress (Count II) and back pay and vacations (Count VII), Plaintiff no longer has the intention to pursue these claims. Plaintiff left them on the complaint for ease of numbering of the claims and has no intention to pursue those claims that
was [sic] moved to be dismissed. Plaintiff just would like the Court to dismiss the above enumerated claims and allow the amended complaint except those claims cited above.Id. While Plaintiff's explanation regarding "ease of numbering" seems preposterous, the Court accepts Plaintiff's stated intention that she no longer wishes to pursue those claims. Therefore, the Court construes Plaintiff's Motion [#31] as seeking to amend the First Amended Complaint [#14] by withdrawing Counts I, II, and VII and including additional factual allegations relating to Plaintiff's remaining claims (Counts III, IV, V, and VI). The Court proceeds in the following section to analyze the merits of Plaintiff's Motion accordingly.
The Court notes that this conforms with the proper procedure for voluntarily dismissing less than all claims in an action. See Carskadon v. Diva Int'l, Inc., No. 12-cv-01886-RM-KMT, 2013 WL 1876784, at *2 (D. Colo. May 3, 2013) ("[A] Plaintiff who wishes to dismiss some claims, but not others, should do so by amending the complaint pursuant to Rule 15." (collecting cases)); see also 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2362 (3d ed.) ("A plaintiff who wishes to drop some claims but not others should do so by amending [her] complaint pursuant to Rule 15.").
II. Analysis
As an initial matter, the parties' deadline for the amendment of pleadings was January 30, 2019. Sched. Order [#30] § 9(a). Plaintiff's Motion [#31] was filed on December 17, 2018, five days after the Rule 16(b) Scheduling Conference, and is therefore timely. See Minute Entry [#29].
The Court has discretion to grant a party leave to amend her pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave when justice so requires."). "In the absence of any apparent or declared reason - 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 allowance of the amendment, futility of the amendment, etc. - the leave sought should, as the rules require, be 'freely given.'" Foman, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)(2)). Potential prejudice to a defendant is the most important factor in considering whether a plaintiff should be permitted to amend its complaint. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006). "Courts typically find prejudice only when the [proposed] amendment unfairly affects the defendants in terms of preparing their defense to [claims asserted in the] amendment." Id. (quotation omitted).
In its Response [#38], Defendant opposes the Motion [#31] on grounds of futility and bad faith or dilatory motive. See Response [#38] at 1 ("Plaintiff's proposed amendments are futile and serve only to cause further delay."). In short, Defendant contends that "Plaintiff should not be allowed to prolong this action indefinitely by filing futile amendments each time Defendant files a motion to dismiss." Id.
With respect to Defendant's futility argument, it is well settled that a proposed amendment is futile only if the complaint, as amended, would not survive a motion to dismiss. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson County Sch. Dist. v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir. 1999)). "In ascertaining whether plaintiff's proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to plaintiff, and the allegations in the complaint must be accepted as true." Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994). Moreover, "[a]ny ambiguities must be resolved in favor of plaintiff, giving [her] the benefit of every reasonable inference drawn from the well-pleaded facts and allegations in [her] complaint." Id. (quotations omitted).
Here, because Plaintiff's tendered Second Amended Complaint [#32] does not add any new claims, Defendant simply repeats (by incorporating) arguments raised in its Second Motion to Dismiss [#19]. Response [#38] at 6 ("Defendant incorporates the arguments set forth [in the Second Motion to Dismiss] and provides the following non-exclusive summary of the bases for dismissal."). In providing a brief summary of the arguments made in the Second Motion to Dismiss [#19], Defendant generally contends that Counts III, IV, V, and VI must be dismissed because Plaintiff fails to state claims for race or sex discrimination, age discrimination, unlawful retaliation, or hostile work environment. Id. at 7-9. Additionally, Defendant asserts that the Court lacks subject matter jurisdiction over Counts III, IV, and V, because Plaintiff failed to assert any claims for sex discrimination, age discrimination, or unlawful retaliation in her EEOC charge. Id. at 7-8 (citing Def.'s Ex. 1, Second Motion to Dismiss [#19-1].)
The Court first notes that Defendant does not explain its futility position with sufficient detail in the Response and primarily directs the Court to read the Second Motion to Dismiss [#19]. See id. at 5-10. However, because Defendant's Second Motion to Dismiss [#19] has not been referred to the undersigned for a recommendation, the Court expresses no opinion as to the merits of Defendant's arguments raised therein. See Tony's Tap, LLC v. PS Enterprises, Inc., No. 08-cv-01119-MSK-KLM, 2009 WL 1394308, at *3 (D. Colo. May 19, 2009) ("[I]t is not appropriate for [a Magistrate Judge] to pass judgment on the merits of a position asserted in a pleading which is pending before another judge for ruling[.]").
While the Court takes no position as to whether Defendant's Second Motion to Dismiss [#19] should be granted, the undersigned merely notes that it appears that the Motion is based on more than idle speculation. --------
Moreover, given that Plaintiff has not responded to Defendant's arguments for dismissal, there is limited briefing on those issues. Thus, the Court is not inclined to delve deeply into the merits of Plaintiff's claims at this stage of the proceedings. See Foman, 371 U.S. at 182 ("If the underlying facts or circumstances relied upon by plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits."). It is simply not appropriate for the Court to weigh the facts and evidence to resolve underdeveloped issues between the parties at this stage in the proceedings. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). Instead, guided by the rule that amendments pursuant to Rule 15(a) are freely granted, the Court's sole function now is to determine whether Plaintiff has provided a plausible basis for liability if its version of the facts is assumed to be true. Castleglenn, Inc., 984 F.2d at 1586. Therefore, the Court is inclined to allow Plaintiff to further amend her complaint and leave the question of whether she is entitled to relief against Defendant to be decided on a fully-briefed dispositive motion, if any, or at trial.
Defendant next argues that Plaintiff filed the Motion with a bad faith or dilatory motive. See Response [#38] at 5-10. Defendant asserts that "[i]t is obvious that Plaintiff filed her proposed amendments as a way to prolong the proceedings and avoid responding to Defendant's motions to dismiss. This is not a proper basis for amendment, and thus, the Court should deny Plaintiff's motion, and dismiss all of Plaintiff's complaints with prejudice." Id. at 5.
In reviewing the procedural history outlined above, the Court acknowledges that there is some support for the view that Plaintiff's repeated amendments have been used as a delay tactic to avoid responding to Defendant's Motions to Dismiss [#8, #19]. Nevertheless, given that Plaintiff filed the Motion [#31] well-before the deadline to amend pleadings, given that she seeks to withdraw certain claims which limits the scope of this litigation, and given that leave to amend should be freely given when justice so requires, the Court declines to ascribe a bad faith motive to Plaintiff's Motion [#31] this early in the proceedings. See 6 Charles Alan Wright et al., Federal Practice and Procedure § 1474 (2d ed.1990) (noting that "the most common use of Rule 15(a) is by a party seeking to amend in order to cure a defective pleading").
Finally, the Court reiterates that prejudice to Defendant is the most important factor in considering whether Plaintiff should be permitted to amend her pleading. Minter, 451 F.3d at 1207. As previously stated, "[c]ourts typically find prejudice only when the [proposed] amendment unfairly affects the defendants in terms of preparing their defense to [claims asserted in the] amendment." Id. (quotation omitted). In this case, the Court finds that Defendant has not argued or established that allowing Plaintiff to file her Second Amended Complaint [#32] will unfairly impact Defendant's ability to defend against the new facts asserted in the proposed complaint. See Carskadon v. Diva Int'l, Inc., No. 12-cv-01886-RM-KMT, 2013 WL 1876784, at *3 (D. Colo. May 3, 2013) ("[T]he mere fact that a defendant's motion to dismiss may be rendered moot if leave to amend is granted ordinarily is not sufficient to establish undue prejudice.").
III. Conclusion
For the foregoing reasons, and considering that leave to amend should be freely given, the Court respectfully RECOMMENDS that the Motion [#31] be GRANTED and that Plaintiff's tendered Second Amended Complaint [#32] be ACCEPTED for filing in full with the exception of Counts I, II, and VII.
IT IS FURTHER RECOMMENDED that Plaintiff be ordered to file a Second Amended Complaint which includes the claims she intends to pursue and delete those she has voluntarily withdrawn, for clarification and ease of reference going forward.
IT IS HEREBY ORDERED that, pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
IT IS FURTHER ORDERED that Plaintiff's obligations stated in the Order to Show Cause [#50] are DISCHARGED.
Dated: May 13, 2019
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge