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Fattaey v. Kansas State University

United States District Court, D. Kansas

May 24, 2017

ABDULLAH “ABE” FATTAEY, Plaintiff,
v.
KANSAS STATE UNIVERSITY, ET AL., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE.

         Plaintiff Abdullah (“Abe”) Fattaey's Second Amended Complaint alleged claims against his former employer, Kansas State University (“KSU”), and several University employees, relating to the decision not to reappoint him when his annual employment contract with KSU expired. On January 24, 2017, the Court issued an extensive Memorandum and Order on Defendants' Motion to Dismiss Second Amended Complaint, granting in part and denying in part that motion.[1] The Court denied the motion to dismiss as to his Title VII claims against KSU, and granted the motion to dismiss civil rights claims under 42 U.S.C. §§ 1983 and 1985(3) premised on violations of Plaintiff's procedural and substantive due process rights under the Fourteenth Amendment. Before the Court is Plaintiff's Motion for Leave to File an Amended Complaint and Motion to Extend Deadline to File Third Amended Complaint (Doc. 56). The motion is fully briefed and the Court is prepared to rule. The Court grants Plaintiff's motion as explained more fully below.

         I. Background

         Prior to the Court's January 24 Order, Plaintiff amended his complaint twice. He amended once as a matter of course, and amended a second time after Defendants filed their first motion to dismiss. After Plaintiff was granted leave to amend, and after Defendants filed their renewed motion to dismiss the Second Amended Complaint, Plaintiff voluntarily dismissed certain claims that rendered moot several arguments raised in the motion to dismiss. This Court ruled on the remaining claims briefed by the parties: Count I-Title VII discrimination and retaliation claims against KSU based on race and national origin; Count IV-conspiracy claim under 42 U.S.C. § 1985(3) against Defendants Schulz, Mason, Bontrager, and Swanson in their individual capacities; and Count V-procedural and substantive due process claims under 42 U.S.C. § 1983 against Defendants Schulz, Mason, Bontrager, Swanson, and Franzen. The Court denied Defendants' motion as to Count I against KSU, and granted the motion as to the civil rights claims under the doctrine of qualified immunity. In addition, due to the confusing sequence of Plaintiff's amendments and filings, the Court ordered Plaintiff to file a Third Amended Complaint as follows:

After several rounds of amendments and other adjustments to his claims, Plaintiff is left with Title VII claims of national origin discrimination and retaliation against KSU. His civil rights claims against the individual Defendants are subject to qualified immunity and must be dismissed. All other claims in the Second Amended Complaint have been withdrawn. Plaintiff has requested leave to file another amended pleading to make clear that he has voluntarily dismissed certain claims since the Second Amended Complaint was filed, and to properly plead administrative exhaustion on his Title VII claims. The Court agrees that an amended pleading is warranted to make the record clear as to what remains. Plaintiff's Third Amended Complaint shall be filed within seven days and shall omit the claims Plaintiff voluntarily dismissed, add his administrative exhaustion allegations, and omit the civil rights claims dismissed herein based on the doctrine of qualified immunity.[2]

         On January 31, 2017, Plaintiff filed the instant motion for leave to amend, attaching a proposed Third Amended Complaint. In this motion, he argues that the 42 U.S.C. § 1983 claim in the Second Amended Complaint against the individual defendants included a claim that they violated the Fourteenth Amendment's equal protection clause. He asks for an extension of time to file the Third Amended Complaint until the Court can rule on whether his proposed pleading, which includes this civil rights claim, is permissible. Plaintiff seeks to allege this claim against Defendant Bontrager in her individual capacity. Defendant objects, arguing that the amendment is sought in bad faith, will cause undue delay, and that it would be subject to dismissal.

         II. Standard

         The parties argue this motion as a motion for leave to amend, governed by Fed.R.Civ.P. 15(a). Under Rule 15(a), leave to amend a complaint is freely given when justice so requires. Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.'”[3] Courts may deny leave to amend, however, based on “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, [or] futility of amendment.”[4]

         But this is not a typical motion for leave to amend. This Court has already granted leave to amend under strict parameters, as set forth in the quoted passage above. As to the equal protection claim, Plaintiff does not necessarily seek leave to amend to add that claim; he contends that this claim was included in the Second Amended Complaint. Plaintiff concedes that this claim was not clearly labeled as a separate claim for relief, but urges that Defendants are not prejudiced by allowing him to plead this claim because it is based on the same elements and facts as the Title VII claims, which the Court allowed to proceed in the January 24 Order. The parties also dispute whether some of the factual allegations in the proposed Third Amended Complaint pertain strictly to the claims dismissed in the Court's January 24 Order. Because the parties appear to have interpreted the Court's January 24 Order quite differently, the Court will first clarify the scope of the Second Amended Complaint. The Court will then proceed to consider Plaintiff's proposed Third Amended Complaint under the Rule 15(a) factors.

         III. Scope of the Court's January 24, 2017 Order

         A. Equal Protection Claim

         Under Fed.R.Civ.P. 8(a)(2), a complaint only requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”[5] It does not require the plaintiff to set forth legal theories.[6] Nonetheless, a complaint “must ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'”[7] Plaintiff's request to include the equal protection claim in his Third Amended Complaint raises the issue of whether he fairly gave Defendant notice of this claim in the Second Amended Complaint, given Plaintiff's position that it had been alleged all along.

         The Court begins this discussion by acknowledging Defendant's frustration with the protracted nature of Plaintiff's pleading in this case. Defendants are understandably frustrated that they were required to litigate two motions to dismiss, the second of which addressed claims ultimately abandoned by Plaintiff in a later filing, and that despite believing they had certainty about the claims remaining, Plaintiff once again attempts to amend. Defendants claim that they were not on notice of an equal protection claim in the Second Amended Complaint. To be sure, despite moving for complete dismissal of those pleadings, the motions to dismiss did not address an equal protection claim. Defendants moved to dismiss that pleading on February 19, 2016, at which time Plaintiff was placed on notice of the many other deficiencies Defendants identified in the First Amended Complaint. Defendants sought dismissal of the entire pleading, construing Count V as asserting only procedural and substantive due process claims. This motion was ultimately moot because Plaintiff sought and was granted leave to amend. The point of granting leave to amend in this context is to allow the Plaintiff an opportunity to cure the deficiencies identified in a motion to dismiss. Yet, Plaintiff filed his Second Amended Complaint with the same misleading label on Count V, and Defendants moved to dismiss the civil rights claims on the same grounds. In other words, Plaintiff did not point out in the briefing on the second motion to dismiss (or the first, for that matter) that this Count included an equal protection claim. Had Defendants been on actual notice that Plaintiff alleged an equal protection claim, they surely would have addressed it in their motions to dismiss. And the Court is mystified as to why Plaintiff would not advance this claim in his response to the motions to dismiss.

         Nonetheless, the Court agrees that the Second Amended Complaint does indeed assert an equal protection claim. Plaintiff labeled Count V of the Second Amended Complaint: “CONSTITUTIONAL AND CIVIL RIGHTS VIOLATIONS PURSUANT TO 42 U.S.C. §§ 1983, 1988; VIOLATION OF PROCEDURAL AND SUBSTANTIVE DUE PROCESS RIGHTS AGAINST DEFENDANTS [] SCHULZ, MASON, BONTRAGER, SWANSON, AND FRANZEN.”[8] Under this Count's heading, in paragraph 152, Plaintiff alleges:

Defendants Schulz, Mason, Bontrager, Swanson, and Franzen's decision (in their individual capacities and acting under color of state law) to deprive Plaintiff of his property rights based on Plaintiff's race, ancestry, and ethnicity, and based on his complaint of unlawful discrimination, deprived Plaintiff of his equal protection rights under the 14th amendment of the Constitution.[9]

         Although Plaintiff failed to properly label Count V, that is not the dispositive inquiry.[10] The Court cannot ignore the substance of this claim, which alleged Plaintiff's entitlement to relief under the equal protection clause. The Court agrees that despite Plaintiff's inexplicable failure to draw attention to this claim during the briefing of the motion to dismiss, the Second Amended Complaint should have placed Defendants on notice of his intent to assert such a claim under the equal protection clause. To the extent Defendants argue that Plaintiff has alleged insufficient facts to support an equal protection claim, the Court will address this argument below when analyzing futility of amendment.

         B. Title VII Claims

         In its previous Order, the Court denied Defendant's motion to dismiss Plaintiff's Title VII claims of discrimination and retaliation. Defendant objects to certain allegations in Plaintiff's proposed Third Amended Complaint relating to these claims, arguing that they exceed the scope of the Court's Order. Defendants contend that Plaintiff's proposed pleading violates the Court's Order by including: (1) references to “Defendants” throughout; (2) language about race, age, and religious discrimination; (3) allegations regarding Defendant Franzen's failure to investigate Plaintiff's complaints of discrimination; and (4) allegations that exceed the adverse employment action upon which Plaintiff's retaliation claim was allowed to proceed. Defendants urge that the law of the case doctrine prohibits Plaintiff from reasserting claims that have been dismissed.

         The Court need not delve into the law of the case doctrine because Defendants read this Court's ruling too narrowly on the Title VII claims. It is true that Plaintiff has no actionable claim remaining for discrimination based on his age or religion, but the Court did not rule on whether Plaintiff can maintain a Title VII claim on the basis of his race. The Second Amended Complaint made clear that he alleged Title VII claims on the basis of both race and national origin discrimination.[11] Defendant did not challenge Plaintiff's membership in a protected class, so the Court was not required to consider whether Plaintiff alleged sufficient facts to support a racial discrimination claim. Likewise, because the Court found that Plaintiff alleged sufficient facts to demonstrate a claim of national origin discrimination, the Court was not required to separately address his race discrimination claim.

         As to Plaintiff's allegations about KSU's failure to investigate, the Court found that Plaintiff could not maintain a claim of discrimination on the basis of Franzen's failure to investigate his internal discrimination complaint. Defendants are correct that the Court dismissed Plaintiff's discrete claim of discrimination on the basis of this adverse employment action because Plaintiff failed to administratively exhaust. However, that does not mean that Plaintiff's allegations about KSU's failure to investigate may not be relevant to his surviving Title VII claims. Defendants' complaints about relevance and prejudice are evidentiary, and questions of evidence are not properly before this Court on a motion for leave to amend.

         To the extent the parties otherwise dispute whether Plaintiff's factual allegations in the proposed Third Amended Complaint exceed the scope of what the Court allowed to proceed in its January 24 Order, the Court is confident that upon a meaningful meet and confer session, the parties can work through their differences and Plaintiff can construct a Third Amended Complaint that maintains his Title VII allegations in compliance with the Court's Order. Defendants are cautioned that the Court does not view Plaintiff's pleading obligation in this regard as a mathematical formula whereby the number of paragraphs in the Third Amended Complaint correlate to the amount of claims that survive. To the extent Defendants believe Plaintiff's allegations are irrelevant, that issue is premature, particularly given that discovery has been completely derailed while the parties endlessly litigate the operative pleading in this matter.

         IV. Amendment Factors

         A. Undue Delay and Prejudice

         Undue delay alone is sufficient to deny a motion to amend; there need not be a showing of prejudice.[12] In the Tenth Circuit, undue delay may be found “when the party filing the motion has no adequate explanation for the delay.”[13] The Court may also deny leave to amend if the moving party “knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original complaint.”[14] Moreover, motions for leave to amend are correctly denied

when it appears that the plaintiff is using Rule 15 to make the complaint “a moving target” to “salvage a lost case by untimely suggestion of new theories of recovery, ” present “theories seriatim” in an effort to avoid dismissal, or to “knowingly delay[ ] raising [an] issue until the eve of trial.”[15]

While liberality of amendment is important, it is equally important that “there must be an end finally to a ...


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