Marley v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc., No. 8:2017cv01902 - Document 41 (D. Md. 2018)
Court Description: MEMORANDUM OPINION AND ORDER denying 37 Plaintiff's request for leave to file fourth amended complaint; directing the Defendant to file its answer no later than December 6, 2018. Signed by Judge Paul W. Grimm on 11/15/2018. (jf3s, Deputy Clerk)
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Marley v. Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. Doc. 41 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division * ROBERTO E. MARLEY, * Plaintiff, * v. * KAISER FOUNDATION HEALTH, PLAN OF THE MID-ATLANTIC STATES, INC. * * Defendant. * * Case No.: 8:17-cv-01902-PWG * * * * * * * * * * * * * * MEMORANDUM OPINION Plaintiff Roberto Marley ("Marley") has filed a series of proposed amended complaints in the 18 months since he initiated this lawsuit against his former employer, Health Plan of the Mid-Atlantic States, Inc. ("Kaiser"). Kaiser Foundation He now seeks leave to amend his complaint for the fourth time, hoping to reassert a sex-discrimination claim he had voluntarily dismissed before the Court issued its ruling granting in part and denying in part Kaiser's to dismiss the case. I motion I deny his request for leave and direct Kaiser to file an answer to the claims that remain, as identified in the Court's September 20, 2018 Memorandum Opinion and Order, ECF Nos. 32, 33. FACTUAL BACKGROUND This action began on May 2, 2017, in the Circuit Court for Montgomery Maryland, where Marley filed his first complaint. ECF NO.2. This pleading, written without the Upon removal, this case was assigned to U.S. District Judge George Jarrod Hazel. reassigned to my chambers on October 22,2018. I County, It was Dockets.Justia.com aid of counsel, accused Kaiser of firing Marley in retaliation for a charge he filed with the U.S Equal Employment Id. at 3. Marley soon retained counsel, who filed Opportunity Commission. an amended complaint that more clearly identified the claims Marley wished to assert. Amended Complaint, ECF NO.4. hostile work environment, also in violation ("FMLA"). Those claims were: wrongful termination; See First maintaining a in violation of Title VII of the Civil Rights Act; sex discrimination, of Title VII; and retaliation, in violation of the Family Medical Leave Act Id. Kaiser promptly removed the case to this Court and filed a motion to dismiss the See Notice of Removal, ECF Nos. 1; First Motion to Dismiss, suit for failure to state a claim. ECF NO.6. Not long afterward, on August 9, 2017, Marley asked the Court for leave to file a second amended complaint to add "newly Amended Complaint." discovered ECF No. II. allegations and facts not made in the First Kaiser did not object but sought to reserve the right to revise its motion to dismiss to account for the new allegations. See ECF No. 15. The Court granted Marley's request for leave, ECF No. 17, prompting Kaiser to file a motion to dismiss the Second Amended Complaint, argued all of Marley's administrative ECF No. 19-2. ECF No. 19. Kaiser's memorandum in support of the motion claims should be dismissed, either because he had failed to exhaust his remedies or because he had failed to allege sufficient facts to state a claim. The memorandum See asserted, in particular, that the Title VII sex-discrimination claim failed for each of those two reasons. See ECF No. 19-2. While the second motion to dismiss was pending, Marley filed a motion asking the Court for leave to file a third amended complaint. Marley's motion, dated January dismisses or substitutes" See Mot. to File Third Am. Compl., ECF No. 23. 11, 2018, explained the newly proposed the sex-discrimination claim, replacing 2 version "voluntarily it with a claim of retaliation under Title VII. Id. at 1. The motion to amend attributed this decision to "newly discovered evidence," asserting that a review of Marley's EEOC charge uncovered facts that, in Marley's view, supported a claim that the EEOC charge was the reason Kaiser reprimanded him and refused to promote him. Id. at 2-3. "Marley," the motion stated, "is simply trying to fix a claim that may be insufficient in substance and substitute it with a claim that is more in line with the existing allegations of his complaint." Id. at 3. Kaiser objected to the motion to amend, arguing Marley should not be allowed to amend the complaint yet again after repeatedly failing to cure deficiencies in earlier submissions. January 2018 Resp. in Opp'n 4-7, ECF No. 29. To this, Marley responded that the voluntary dismissal of the sex-discrimination claim was itself proof that Marley was not simply dressing up the same old claims. PI.'s February 2018 Reply 2, ECF No. 30. On the contrary, he noted, "Marley has conceded that he did not have a viable adverse employment action for a Sex Discrimination claim." Id. The Court held a motions hearing on February 2, 2018, where, as Judge Hazel later noted in a memorandum opinion, "there was confusion as to which claims were still being pursued by the Plaintiff and which had been conceded." Mem. Op. 7 n.5, ECF No. 32. Ultimately, Judge Hazel treated the proposed third amended complaint as the operative complaint and declared: "Any claims alleged in prior complaints but not appearing in the most recent iteration will be considered dismissed." Id. The Court allowed the wrongful termination and FMLA retaliation claims to proceed but dismissed the hostile-work-environment claim. Id. at 16. As for the Title VII retaliation claim, which Marley had opted to assert in place of the abandoned sexdiscrimination claim, the Court preserved it, but on a limited basis; Marley could continue to 3 seek relief for the alleged reprimand but not for the denial of a Id. at 14-15. promotion. Soon afterward, Marley's and threat of termination, in a telephone conference attorney expressed call with Judge Hazel and opposing counsel, an interest in reasserting the abandoned sex-discrimination claim. See ECF No. 36. In an ensuing brief, Marley seized on language in the Court's Memorandum Opinion observing that some of the allegations hostile-work-environment discrimination, claim and "more in the EEOC charge were less consistent with a in line with a claim of disparate claims that do not appear in the Third Amended Complaint." treatment, or See PI.'s Show Cause Letter 2-3, ECF No. 37; Mem. Op. 11. Marley argued that permitting him to reassert the sex-discrimination claim would not prejudice Kaiser because the suit was "still very much in its infancy" and the legal issue had "already essentially been briefed and ruled upon." Cause Letter 2. Marley pointed out the Memorandum the dismissal of the sex-discrimination PI.'s Show Opinion did not expressly state whether claim was with or without prejudice. Id. at 3. Kaiser, in response, argued Marley chose to withdraw the claim and could not reassert it now "merely because he is unhappy with this Court's Opinion." Def.'s Resp. to Show Cause Letter 4. The company accused Marley of unduly delaying the resolution of the case and said the proposed amendment would prejudice Kaiser, which would have to "file yet another motion to dismiss when the issue could have been dealt with as part of this Court's Opinion." Having been fully briefed, Marley's ripe for decision. No hearing is necessary. Id. request to file a fourth amended complaint is now See Loc. R. 105.6. DISCUSSION A plaintiff may amend his or her complaint once as a matter of course. P. 15(a)(l). After that, though, amendments are permissible 4 See Fed. R. Civ. "only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). The Federal Rules of Civil Procedure direct courts to "freely give leave when justice so requires," id., a mandate the Supreme Court has highlighted as one that "is to be heeded," Farnan v. Davis, 371 U.S. 178, 182 (1962). "The Fourth Circuit has stated that leave to amend under Rule 15(a) should be denied only in three situations: when the opposing party would be prejudiced, when the amendment is sought in bad faith, or when the proposed amendment would be futile." Longue v. Patient First Corp., 246 F. Supp. 3d 1124, 1126 (D. Md. 2017) (citing Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)). It is not at all uncommon for courts to grant a plaintiff leave to amend the complaint at this stage of the proceedings, where the court has issued a ruling on the defendant's motion to dismiss and awaits the filing of the defendant's answer. See Laber, 438 F.3d at 427; 6 Charles Alan Wright et a\., Federal Practice and Procedure S 1488 (3d ed. 1998). In fact, in the seminal case of Farnan v. Davis, the Supreme Court held a trial court should have allowed a plaintiff to amend her complaint even after entering a judgment for the defendant on the basis of a motion to dismiss. 371 U.S. at 179, 182. It was the Supreme Court's view in that case that the proposed amendment "would have done no more than state an alternative theory for recovery." Id. at 182. The Federal Rules recognize a plaintiff's theory of the case may evolve as the litigation progresses, though the opportunity to bring new claims will typically diminish with time, given the heightened risk of prejudice to the defendant after discovery has closed and trial nears. See Sharkey IRO/IRA v. Franklin Res., 263 F.R.D. 298, 301 (D. Md. 2009); see also Laber, 438 F.3d at 427 ("A moment's reflection reveals ... that the further the case has progressed before judgment was entered, the more likely it is that the amendment will prejudice the defendant or that a court will find bad faith on the plaintiff's part."). 5 While there is no denying that a party's delay in seeking to amend its pleading is not, in and of itself, a sufficient reason to deny a plaintiffs motion to amend, see Laber, 438 F .3d at 427 (citing Davis v. Piper Aircraft Corp., 615 F .2d 606, 613 (4th Cir. 1980)), courts do expect the party to offer some explanation for the delay. This is among the takeaways in Deasy v. Hill, in which the Fourth Circuit upheld a district court's refusal to permit a plaintiff in a malpractice to assert a new claim shortly before trial. suit In Deasy, the 833 F.2d 38, 40-42 (4th Cir. 1987). Fourth Circuit held it was appropriate to deny a motion to amend in cases "where the motion has been unduly delayed and where allowing the amendment would unduly prejudice movant." Id. at 40. There, in addition contesting a claim the plaintiff had failed to raise before the close of discovery, to noting the hardship the defense court observed that the plaintiff had failed to offer any reason for the delay. Fourth Circuit explained: would the nonface in the appellate Id. at 41. The "[A] motion to amend should be made as soon as the necessity for altering the pleading becomes apparent. contrary to the spirit of the rule." Federal Practice and Procedure S A party who delays in seeking an amendment is acting Id. (quoting 6 Charles Alan Wright & Arthur R. Miller, 1488 (1971)). Here, it is true, the risk of prejudice to the defense is not especially substantial. would still have a chance to move (for the third time) for the new claim's Kaiser dismissal and, assuming the claim survived, the company could still seek discovery on the issue. This case does resemble Deasy in one important respect, though, and that is that Marley has not offered any justification for his conduct (here, trying to resurrect a claim that he voluntarily dismissed). See id. at 41. This is not a case where a plaintiff has uncovered new facts that give rise to a new legal theory. See, e.g., Sweetheart Plastics, Inc. v. Detroit Forming, Inc., 743 F.2d 1039 (4th Cir. 6 1984) (holding a trial court abused its discretion claim for trademark infringement a plaintiff from adding a new on the first day of trial, where the defense produced the evidence of infringement claim of sex discrimination in prohibiting six days earlier). Here, Marley was actively litigating its for at least six months before he voluntarily The dismissal, it is clear, was not an oversight; it was a deliberate choice. to File a Third Amended "insufficient claim. in substance" Complaint explained had only just dismissed the claim. His Motion for Leave he dropped the claim because he considered and believed he would have better luck with a Title VII retaliation Mot. to File Third Am. Compl. 3; see also PI.' s February 2018 Reply 2 (conceding sex-discrimination it the claim was not "viable"). Later, when Kaiser challenged his right to continue amending the complaint, urged the Court to view the voluntary dismissal as a sign of his good faith. Marley Marley's hope, at that time, was that the Court would allow him to press ahead with a newly asserted Title VII retaliation claim. To buoy his chances, Marley argued the voluntary dismissal showed he was not merely trying to "fix a 'repeated had claimed. failure'" in previous versions of the complaint, Id. He cited the dismissal again in arguing the proposed amendment futile, asserting: "Marley does not advance claims based on Sexual Orientation. as Kaiser would not be Nowhere in his complaint does he advance a claim that he suffered from an adverse action because of his sexual orientation. [claim]." However, the allegations do support the gender based hostile work environment Id. at 3-4. Evidently, the choice to withdraw the sex-discrimination claim was a tactical decision. While Ido not suspect it was Marley's goal to delay these proceedings, without consequence. his maneuverings are not Above all else, they threaten to abuse judicial resources by "forc[ing] the court to consider various theories seriatim," Dussouy v. FulfCoast Inv. Corp., 660 F.2d 594, 599 7 (5th Cir. 1981). Rule 15(a)(2) does not require courts to tolerate tactics of this sort. See Wimm v. Jack Eckerd Corp., 3 F.3d 137 (5th Cir. 1993) (upholding plaintiffs to add new claims to their complaint, facts supporting a district court's refusal to allow given that the plaintiffs had been aware of the the new claims "before they initiated this action [but] did not present those claims until summary judgment was imminent, nine months after the action was initiated"); Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (lOth Cir. 1994) ("A busy district court need not allow itself to be imposed upon by the presentation of theories in seriatim." (quoting Freeman v. Cant'! Gin Co., 381 F.2d 459, 469 (5th Cir. 1967))). Looking back now, Marley may well regret his decision to withdraw the Title VII sexdiscrimination complaint claim. That decision, though, was his to make, as were the decisions to amend his on two previous occasions. On these facts, it is difficult to conclude that Marley's effort to reassert a claim that he knowingly and voluntarily abandoned are in good faith. I simply cannot conclude that "justice so requires" the Court to permit yet another amendment. Civ. P. l5(a)(2). The remaining Marley's request for leave to file a fourth amended complaint claims, consistent with the Court's September and Order, are as follows: wrongful termination, IS DENIED. 20, 2018, Memorandum FMLA retaliation, Fed. R. Opinion and Title VII retaliation. The Court directs Kaiser to file its answer by December 6, 2018. Finally, now that this case has been assigned regarding the filing of motions. substantive to me, I have issued a Letter Order ECF No. 39. In a nutshell, it precludes any party from filing a motion (whether discovery-related or a motion to dismiss or for other dispositive relief) until "atelephone conference has been held with the Court to discuss the intended motion. Such a request is made simply by filing a letter with the Court, not to exceed three pages, single spaced, setting out the basis for the intended motion and briefly describing 8 the supporting authority. Once the letter is filed, no response is required unless requested by the Court. schedule a prompt telephone conference to discuss the request and any further proceedings regard to the desired motion. I will with Motions that are filed without complying with this procedure will be stricken by the Clerk's Office. -bIAccordingly, it is this12day ORDER of November, 2018, by the United States District Court for the District of Maryland, hereby ORDERED that: I. Plaintiff Roberto E. Marley's request for leave to file a fourth amended complaint, ECF No. 37, IS DENIED. 2. Defendant Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. shall file its answer no later than December 6, 2018. Paul . Grimm United States District Judge 9
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