United States District Court, D. Colorado
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
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.
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.
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 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.
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 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.
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
The Court proceeds in the following section to analyze the
merits of Plaintiff's Motion accordingly.
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
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 ...