MEMORANDUM AND ORDER
KAREN M. HUMPHREYS United States Magistrate
This matter is before the court on plaintiff’s motion to file an amended complaint (Doc. 25). For the reasons set forth below, plaintiff’s motion shall be GRANTED.
This is an action against plaintiff’s former employer for violation of the Americans with Disabilities Act (“ADA”). Highly summarized, after nearly 22 years of employment with defendant, plaintiff was diagnosed with interstitial cystitis in May 2011. In November 2011, plaintiff alleges that she requested accommodations to her work location and schedule due to her condition. In December 2011, defendant terminated her. In her two-count complaint, plaintiff alleges that defendant first discriminated against her based on her disability and retaliated against her for engaging in protected activity under the ADA. Plaintiff seeks to amend her complaint to include a count for violation of the Family and Medical Leave Act (“FMLA”).
The standard for permitting a party to amend his or her complaint is well established. Without an opposing party’s consent, a party may amend his pleading only by leave of the court. Although such leave to amend “shall be freely given when justice so requires, ” whether to grant leave is within the court's discretion. In exercising its discretion, the court must be “mindful of the spirit of the federal rules of civil procedure to encourage decisions on the merits rather than on mere technicalities.” The court considers a number of factors in deciding whether to allow an amendment, including timeliness, prejudice to the other party, bad faith, and futility of amendment.
When the proposed amendment is offered after the deadline in the scheduling order for amending pleadings has passed, as is the case here, Fed.R.Civ.P. 16(b)(4) is implicated. It provides that a “schedule may be modified only for good cause and with the judge’s consent.” “Judges in this District have consistently applied a two-step analysis based on both Rule 16(b) and Rule 15(a) when deciding a motion to amend a complaint filed past the scheduling order deadline.” In these cases, the court “first determines whether the moving party has established good cause within the meaning of Rule 16(b)(4) so as to justify allowing the untimely motion.” Only after a finding that “good cause” has been shown will the court proceed to the second step and evaluate whether the more liberal Rule 15(a) standard for amendment has been satisfied. “Good cause” under Rule 16(b)(4) requires the moving party to “show that the amendment deadline could not have been met even if [she] had acted with due diligence.” A lack of prejudice to the non-moving party does not demonstrate “good cause.” With these standards in mind, the court evaluates plaintiff’s motion.
A. Good Cause under Rule 16(b)(4)
The scheduling order established an October 3, 2013 deadline for any motion to join additional parties or to otherwise amend the pleadings. Accordingly, the motion to amend is untimely unless plaintiff shows “good cause” for modifying the scheduling order deadline.
Plaintiff asserts that only during discovery did she learn that defendant employs the requisite 50 people to make the FMLA applicable to the facts of this case. Defendant argues that plaintiff could have stated an FMLA claim regardless of whether she was sure about the precise number of defendant’s employees. Defendant further argues that plaintiff’s failure to timely amend is due to her own lack of diligence, and cites the case of J. Vangel Electric as support.
However, Vangel is distinguishable because the plaintiff failed to inquire about or inspect the wiring adequacy until long after the scheduling order deadline. Here, the court finds that plaintiff’s counsel engaged in reasonable inquiry as to the number of defendant’s employees. Based on the facts available to plaintiff, she believed that the FMLA was inapplicable. This belief was not held by plaintiff alone; in fact, defendant itself believed it employed only 31 persons. However, in November 2013, plaintiff’s counsel learned that some “residents/clients/consumers of defendant’s care facility” actually receive paychecks from the defendant, which would increase the number of its employees to more than 50 persons. Plaintiff did not delay in filing its motion to amend on December 3, 2013.
An additional point of distinction from Vangel is that the request to amend was filed after the pretrial order was entered and discovery was complete. Here, discovery is not yet complete and the pretrial conference has not been held. In light of the reasonable inquiry of plaintiff and the procedural posture of this case, the court ...