United States District Court, D. Kansas
P. O'HARA, U.S. MAGISTRATE JUDGE
plaintiff, Crystal Kuri, brings this FLSA action against her
former employer, Addictive Behavioral Change Health Group,
LLC, alleging claims for straight time and overtime
compensation. Defendant has asserted counterclaims against
plaintiff for unjust enrichment and breach of contract.
Shortly before the final pretrial conference was scheduled to
occur, plaintiff filed a motion to amend her complaint to
assert a retaliation claim under the FLSA based on
defendant's breach-of-contract counterclaim (ECF No. 45).
The proposed retaliation claim is premised on the May 1, 2018
deposition testimony of Steve Kamau, “the owner of the
defendant, ” that “he only filed the counterclaim
because of the FLSA suit filed by Ms.
Kuri.” Defendant opposes plaintiff's motion,
arguing that the proposed amendment should be denied on the
basis of futility.
2, 2018, the undersigned U.S. Magistrate Judge, James P.
O'Hara, conducted the final pretrial conference in this
matter. Plaintiff appeared through counsel, Phillip M.
Murphy, II. Defendant appeared through counsel, Monte A.
Vines. For the reasons set forth below and at the pretrial
conference, plaintiff's motion to amend is granted.
Fed.R.Civ.P. 15(a)(2), once a responsive pleading has been
filed and twenty-one days have passed, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Rule 15 dictates
the court “should freely give leave when justice so
requires.” Although the granting of a motion to amend
is within the court's discretion, the Supreme Court has
indicated that Rule 15's directive to “freely give
leave” is a “mandate … to be
headed.” Nonetheless, a court may deny leave to
amend upon a showing of, among other things, “futility
proposed amendment is futile if the amended complaint would
be subject to dismissal.” In considering whether a proposed
amendment is futile, the court uses the same analysis that
governs a Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure
to state a claim. Therefore, the court will only deny an
amendment on the basis of futility when, accepting the
well-pleaded allegations of the proposed amended complaint as
true and construing them in the light most favorable to the
plaintiff, the court determines the plaintiff has not
presented a plausible claim. “The party opposing the
proposed amendment bears the burden of establishing its
argues the proposed retaliation claim wouldn't survive a
motion for summary judgment. Acknowledging that “some
courts have been willing to assume that an employer could
violate [29 U.S.C. § 215(a)(3)] by filing a counterclaim
against an FLSA plaintiff if the counterclaim was baseless
and asserted solely for retaliatory purposes,
” defendant claims its counterclaims are
legitimate, and offers extra-pleading evidence in support
and factually, the undersigned judge has serious doubts as to
the viability of plaintiff's proposed retaliation claim.
Further, despite the possibility that plaintiff's counsel
could possibly recover fees if his client prevails, the
undersigned has serious doubts about the prudence of
plaintiff pursuing this litigation, given that
defendant's counterclaim exceeds plaintiff's maximum
recovery. Nevertheless, the undersigned declines to deny
plaintiff's motion to amend based on futility. Given the
limited briefing and case law (which suggests that certain
circumstances may warrant an FLSA plaintiff's retaliation
claim based on a defendant's counterclaim), as well as
the Rule 12(b)(6) standard in considering motions to amend
(rather than a summary judgment standard), the court finds
plaintiff's retaliation claim more appropriately
addressed by a dispositive motion before the presiding U.S.
District Judge, Julie A. Robinson.
THEREFORE ORDERED that plaintiff's motion to file an
amended complaint is granted. However, in light of the
pretrial order being entered very shortly, which will address
the retaliation claim and which would supersede the
parties' pleadings in any event, plaintiff is relieved of
her obligation to file an amended complaint, and defendant is
relieved of its obligation to file any pleading responsive to
plaintiff's retaliation claim.
 ECF No. 46-1, para. 49.
 Because plaintiff's motion to
amend was filed more than one year after the May 18, 2017,
deadline for amending pleadings (see ECF Nos. 18 &
36), plaintiff must also show good cause under Fed.R.Civ.P.
16(b)(4) to amend the scheduling order. See Gorsuch, Ltd.
v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230,
1240-41 (10th Cir. 2014). Plaintiff filed her motion to amend
within 45 days of the deposition testimony giving rise to the
proposed retaliation claim. Accordingly, although neither
party makes specific reference to Rule 16(b)(4), the court
finds plaintiff has satisfied the good-cause
 Fed.R.Civ.P. 15(a)(2).
Foman v. Davis, 371 U.S. 178,