United States District Court, D. Kansas
CHARLES E. RICKEY, Plaintiff,
BRAND ENERGY, Inc., d/b/a BRAND ENERGY SOLUTIONS LLC, Defendant.
MEMORANDUM AND ORDER
TERESA J. JAMES, Magistrate Judge.
This matter is before the Court on Plaintiff's Motion For Leave To File Second Amended Complaint (ECF No. 18). Plaintiff seeks to add as a party defendant Brand Energy Services, LLC, a division of Brand Energy, Inc. For reasons stated below, the Court grants Plaintiff's motion.
I. Background Information
Plaintiff brings suit alleging employment discrimination under the Americans with Disabilities Act ("ADA") and retaliation under Kansas tort law. His first amended complaint names a single defendant, Brand Energy, Inc. doing business as Brand Energy Solutions LLC, which he refers to throughout the first amended complaint as "Brand." In the paragraph which pleads exhaustion of administrative remedies, however, Plaintiff cites his EEOC charge which resulted in a right-to-sue letter as Rickey v. Brand Energy Services. 
Defendant filed a motion to dismiss Plaintiff's amended complaint on the ground that Plaintiff has not exhausted his administrative remedies against Brand Energy, Inc. ("Energy") and Brand Energy Solutions LLC ("Solutions"), because plaintiff's EEOC charge named only Brand Energy Services, LLC ("Services") and not Energy or Solutions. Plaintiff concomitantly responded to Defendant's motion and filed the instant motion.
Plaintiff readily acknowledges that Services was his employer. He explains that he did not originally name Services as defendant because when he filed his complaint, Services was not registered to do business in Kansas. As of that date, Plaintiff asserts that Energy and Solutions were the only Brand Company entities registered to do business in Kansas. The Brand Company includes Energy, the parent holding company, and seven entities including Solutions and Services. It was only after Plaintiff served the summons and complaint on the Kansas resident agent of Energy and Solutions (who share the same agent) that Services filed application with the Kansas Secretary of State to conduct business in the state of Kansas. Plaintiff contends that Services was on notice of the lawsuit from its filing and that Energy will not be prejudiced by the addition of Services as a party defendant.
Defendant opposes the motion, arguing that (1) Plaintiff knew the identity of his employer when he filed his complaint and that allowing Plaintiff to add Services as a party defendant would render the applicable statute of limitations a nullity, and (2) if the Court does permit Plaintiff to amend his complaint, the amendment should not relate back to the date of the original complaint.
II. Standard for Ruling On a Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure allows a party to amend the party's pleading once as a matter of course (1) within 21 days after serving it or (2) within 21 days after a responsive pleading or a Rule 12(b), (e), or (f) motion is served. Subsequent amendments are allowed only by leave of court or by written consent of the adverse party. Leave to amend is a matter committed to the sound discretion of the district court,  and the court "should freely give leave when justice so requires." A district court should refuse leave to amend "only upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." A proposed amendment is futile if the amended complaint would be subject to dismissal.
Plaintiff argues that his failure to sue Services in his original and first amended complaints is a mistake that the Court should allow him to correct because Services and Energy will not be prejudiced by a second amended complaint. Plaintiff further argues that his second amended complaint should relate back to the date of his complaint because he has complied with each requirement of Rule 15(c)(1)(C). In an effort to demonstrate lack of prejudice and Services' knowledge of the lawsuit, Plaintiff sets forth a number of facts which Defendant does not contest. These include:
(1) Energy, Solutions, and Services ("the Brand Companies") were each formed on the same date, share the same principal office with the same contact person, and have the same registered service agent in Kansas.
(2) In his EEOC Intake Questionnaire, Plaintiff identified his employer as "Brand Energy, Inc. d/b/a Brand Energy Services LLC." He checked a box on the questionnaire which included the following: "I want to file a charge of discrimination, and... I understand that the EEOC must give the employer... that I accuse of discrimination information about the charge, including my name." In his subsequent Charge of Discrimination, Plaintiff identified his employer as "Brand Energy Services" and he shortened the name to "Brand Energy" in the narrative. In the EEOC's right-to-sue letter, the agency referred to Plaintiff's employer as "Brand Energy Services."
(3) With its motion to dismiss, Defendant submitted an affidavit from a Services human resources employee which confirms that Plaintiff was employed by and ...