Ohimai v. Developmental Disabilities Resource Center

          RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

          Kristen L. Mix United States Magistrate Judge.

         This matter is before the Court on Plaintiff's Motion for Leave of Court to Amend Her Complaint [#31]^[1] (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].^[2] 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.

         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).^[3] 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.

         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.^[4] 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.

         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).^[5] The Court proceeds in the following section to analyze the merits of Plaintiff's Motion accordingly.

         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 ...