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Carter v. Spirit Aerosystems, Inc.

United States District Court, D. Kansas

November 13, 2018

MARK ANTHONY CARTER, Plaintiff,
v.
SPIRIT AEROSYSTEMS, INC., Defendant.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE.

         On October 12, 2018, the Court held a motion hearing on the following pending motions: 1) Plaintiff's Motion for Leave to File Second Amended Complaint (ECF No. 108); 2) Plaintiff's Motion to Compel (ECF No. 120); and 3) Defendant's Motion for Extension of Time to file a motion to compel (ECF No. 122). Plaintiff Mark Anthony Carter appeared on his own behalf. Defendant Spirit Aerosystems, Inc., appeared through counsel Teresa L. Shulda. After consideration of the arguments of the parties and the parties' briefing, the Court announced, at hearing, Plaintiff's Motions (ECF Nos. 108, 120) are DENIED, and Defendant's Motion (ECF No. 122) is found as MOOT. This Order memorializes the Court's oral rulings.

         After these decisions were announced, Plaintiff filed a Motion for Extension of Time to File a Motion to Reconsider the Court's orders (ECF No. 130). For good cause shown, and because the motion is unopposed by Defendant, the Court GRANTS Plaintiff's Motion for Extension of Time (ECF No. 130).

         I. Background

         The nature of this 2016 case has been explored numerous times in prior orders, and will not be repeated in detail here. (See, e.g., ECF Nos. 20, 62, 64, 67.) Briefly, Plaintiff claims his former employer, Spirit Aerosystems, Inc. (“Spirit”), unlawfully terminated him in violation of the Americans with Disabilities Act (“ADA”)[1] and Family and Medical Leave Act (“FMLA”).[2] He contends his termination was a result of discrimination and in retaliation for making formal complaints about Spirit's treatment of him. Despite numerous delays, discovery is currently set to conclude on November 30, 2018 and the matter is set for pretrial conference on December 19, 2018. (See Revised Scheduling Order, ECF No. 113.) After the filing of the present motions, the Court set the matter for hearing in an effort to keep the case moving forward.

         II. Plaintiff's Motion for Leave to File Second Amended Complaint (ECF No. 108)

         Plaintiff filed his case on September 9, 2016. He previously amended his complaint in June 2017, naming as additional defendants the International Association of Machinists and Aerospace Workers (“IAM”); Foulston Siefkin LLP (“Foulston”) (defense counsel for Spirit); and the United States Department of Labor (“DOL”). (ECF No. 21.) Although he did not name them as defendants, in his amended complaint Plaintiff claims his former Spirit manager, Trey Frederick, and another Spirit supervisor, Laurie Myers, [3] mistreated him and retaliated against him after he made internal complaints. (See generally ECF No. 21; ECF No. 62 at 2.)

         Plaintiff again sought to amend his complaint on July 21, 2017, to add defendants and correct perceived errors in his pleading, but District Judge Eric F. Melgren denied his motion for two reasons. First, Plaintiff failed to follow the local rules requiring a party to provide a copy of the proposed amendment. (Order, ECF No. 62, filed Oct. 27, 2017.) Second, Judge Melgren found some of his proposed amended claims would be futile. (Id.) Later, the district court dismissed defendants IAM (Order, ECF No. 64), the Foulston firm (Order, ECF No. 67), and the DOL (Order, ECF No. 87) from the case.

         After the denial of his motion to amend in October 2017, Plaintiff made no further attempt to amend his pleadings until he filed the instant motion on August 24, 2018. Unlike his First Amended Complaint (ECF No. 21), which is 15 pages long with nearly 200 pages of exhibits, Plaintiff's proposed Second Amended Complaint-attached to his motion-is only three pages long, although he proposes to file exhibits under seal if given leave to do so. (ECF No. 108, 108-1.) The proposed amendment includes claims against Spirit Aerosystems and Spirit Holdings, and adds FMLA retaliation claims against the following individuals in their individual capacities: Trey Fredrick (Plaintiff's 2nd-level manager at Spirit), Laurie Myers (his manager), Laura Breese (Spirit HR employee), Dylan King[4] (former in-house counsel at Spirit), and defense counsel Teresa Shulda (a member of Foulston). He also proposes a claim of retaliation against the IAM.

         A. Legal Standard

         Fed. R. Civ. P. 15 provides the well-established standard by which this motion is considered. A party may amend its pleading as a matter of course under Rule 15(a)(1) within 21 days after serving it. However, in cases such as this, where the time to amend as a matter of course has passed, without the opposing party's consent, a party may amend a pleading only by leave of the court under Rule 15(a)(2).

         Rule 15(a)(2) provides leave “shall be freely given when justice so requires, ” and the decision to allow an amendment is within the sound discretion of the court.[5] 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.[6] 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.”[7] The Tenth Circuit has respectfully made clear, and this Court has repeatedly acknowledged, that Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties, '”[8] especially in the absence of bad faith by an offending party or prejudice to a non-moving party.[9]

         D. Kan. Rule 15.1 requires a party seeking leave to amend a pleading to include a copy of the proposed amendment with the motion. Although a pro se party is permitted greater leniency than a party with legal representation, “a plaintiff's pro se status does not relieve him from complying with this Court's procedural requirements.”[10] The “purpose of Rule 15.1 is to compel parties to provide the Court with the information it needs to determine whether a motion to amend is warranted. Without a copy of the proposed pleading, the Court cannot conclusively determine if allowing [a plaintiff] to amend his complaint would promote justice or be entirely futile.”[11]

         B. Discussion

         Although Plaintiff does not specifically identify those factors considered for amendment, he generally contends his amendment is timely, because he learned additional facts in discovery to support his new claims against the proposed defendants in their individual capacities, and seeks to correct deficiencies in his First Amended Complaint. Spirit opposes amendment on multiple factors: that Plaintiff failed to comply with D. Kan. Rule 15.1; his proposed amendment is unduly delayed; his proposed claims are futile; and the amendment would cause undue prejudice to Spirit if filed. Each issue is considered herein.

         1. Failure to Comply with Local Rules

         Plaintiff contends he was unaware he was required to submit his complete proposed amended pleading to his motion, and believed his motion for leave was merely a proposal, which would allow him to file his full pleading if his motion were granted. But the Court finds this argument unpersuasive. Even affording Plaintiff leniency as a pro se litigant, this is one of the very reasons his prior motion was denied, so Plaintiff was certainly on notice after the prior order. (See ECF No. 62). Although Plaintiff's motion could be denied on this basis, the Court also addresses the factors under Fed.R.Civ.P. 15.

         2. Timeliness / Undue Delay

         The actions by individuals Plaintiff seeks to add as defendants-his former managers at Spirit, Frederick and Myers, as well as Spirit HR representative Laura Breese-have all been known to Plaintiff since before this case was filed. His original Complaint contains allegations regarding Frederick's and Myers' actions (see, e.g., ECF No. 1 at 3-4, 6-7, 29-31), as does his First Amended Complaint (see ECF No. 21 at 4-8) and his proposed Second Amended Complaint from September 2017. During Plaintiff's deposition, he testified as early as 2015, he believed Frederick, Myers, and Breese violated the FMLA and retaliated against him. (Carter Dep. 417-424 (Aug. 28, 2018), ECF No. 126-1 at 2-3.) Additionally, Plaintiff's earlier claims against the Foulston law firm included allegations specific to Ms. Shulda, alleging she interfered with his FMLA rights by providing false information to the DOL. (Am. Compl., ECF No. 21 at 13; see Order, ECF No. 67 at 2.) That prior claim against Ms. Shulda is the same allegation he attempts to make in his newly-proposed amendment. (ECF No. 108-1 at ¶2.) And Plaintiff has repeatedly claimed the IAM interfered with his FMLA rights due to the way it handled his grievances. (Compare Am. Compl., ECF No. 21 at 14; with ECF No. 108-1 at ¶ 3.)

         Plaintiff's proposed pleading comes more than three years after Plaintiff determined the individuals retaliated against him, two years after the case was filed, and a year after his prior proposed amendment was denied. Plaintiff knew or should have known-long before his current motion-of the facts upon which the proposed amendment is based, and knew or should have known that the proposed new defendants were possible defendants.[12] Even if recent discovery provided Plaintiff more details about the proposed defendants' involvement, this does not necessarily support an untimely amendment. The evidence to which Plaintiff alludes may lend specificity to his prior claims, [13] but does not support amendment at this juncture. Therefore, the Court finds his amendment unduly delayed.

         Although undue delay alone is sufficient basis to deny Plaintiff's motion, the Court continues its analysis of the Rule 15 factors, as other factors also support denial.

         3. Futility

         As the party opposing amendment, Spirit bears the burden of establishing its futility.[14] A proposed amendment is futile “if the ‘amendment would not withstand a motion to dismiss or otherwise fails to state a claim upon which relief may be granted.'”[15]The proposed pleading is then analyzed using the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6). To survive dismissal under a Fed.R.Civ.P. 12(b)(6) motion, “a complaint must contain enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.”[16]

         As an initial matter, Plaintiff's proposed amendment consists of conclusory statements and few facts or allegations which would support a prima facie case of any of the types of discrimination or retaliation he claims.[17] Amendment could be denied on this basis alone, although the court will more often deny the amendment without prejudice to permit a party to address the deficiencies. However, this Court is loathe to permit additional filings, considering Plaintiff's prior opportunities to amend and the questionable merits of the proposed claims.

         This Court has grave concerns regarding the statute of limitations on the proposed FMLA claims against new defendants. The FMLA requires an employee to file suit “not later than [two] years after the date of the last event constituting the alleged violation for which the action is brought.”[18] But Plaintiff's employment was terminated more than three years ago, on July 21, 2015 (ECF No. 21 at 21), and his prior administrative complaints before the National Labor Relations Board (“NLRB”), Equal Employment Opportunity Commission (“EEOC”), and DOL concluded over two years ago.[19] Plaintiff's proposed amendment would not “relate back” to his initial Complaint under the standards outlined in Fed.R.Civ.P. 15(c)(1).[20] As discussed above, Plaintiff does not appear to have been mistaken regarding the identify of proposed new defendants Frederick or Myers. And, neither Frederick nor King have been employed by Spirit since before Plaintiff filed this case, so neither of them would have had notice of the claims.

         Even if the limitations period were not a barrier, Plaintiff's FMLA claims against the proposed individual defendants would likely fail. Courts in this District have found that human resources managers and supervisors-such as Frederick, Myers, and Breese-are not “employers” under the FMLA.[21] Also, in Judge Melgren's earlier ruling in this case, he determined attorneys acting in their capacities as Spirit's legal representatives-like proposed defendants King and Shulda-cannot be liable as “employers” under the FMLA.[22]

         For the multitude of reasons stated above, the Court finds Plaintiff's proposed amendment to be futile, but continues to analyze the other factors for amendment.

         4. Undue Prejudice

         As the party opposing the amendment, Spirit bears the burden to demonstrate undue prejudice within the meaning of Fed.R.Civ.P. 15.[23] Under Rule 15, “undue prejudice” means “undue difficulty in prosecuting or defending a lawsuit as a result of a change of tactics or theories on the part of the movant.”[24] While any amendment invariably causes some “practical prejudice, ” undue prejudice means that the amendment “would work an injustice to the defendant.”[25]

         The parties have been litigating this matter for more than two years. Spirit has submitted and responded to discovery from Plaintiff, and taken Plaintiff's lengthy deposition, which required some court intervention.[26] The current schedule, which is the third formal Scheduling Order in the case, [27] closes the discovery period in a matter of days. Permitting addition of six new defendants will lead to additional Rule 12 motion practice, and in the event any new defendants survive those motions, additional discovery will occur. This case-which is already belabored-could potentially be extended for well more than another year. This increases the litigation costs not just for Spirit, but also for Plaintiff.

         Considering this “most important factor, ”[28] given the age of the current litigation, and all the factors discussed above, the Court finds the addition of new parties and theories at this stage of litigation is unduly prejudicial. This case simply must move forward. As previously noted by another court in this District, “[a]lthough leave is to be freely granted to assure a party the opportunity to present a claim or defense, equal attention should be given to the proposition that there must be an end to a particular litigation.”[29]

         C. Conclusion

         Spirit does not accuse Plaintiff of bad faith; therefore, the Court does not analyze this Rule 15 factor. After thorough discussion and consideration of all arguments set forth by the parties, the Court finds the balance of factors weigh against amendment. Therefore, the Court DENIES Plaintiff's Motion for Leave to File Second Amended Complaint for the reasons stated above. (ECF No. 108.)

         III. Plaintiff's Motion to Compel (ECF No. 120)

         The next pending motion filed by Plaintiff concerns Spirit's responses to discovery. During discovery, Spirit produced a 54-page privilege log, identifying that information which it believes is privileged from disclosure. Plaintiff now asks the Court to compel Spirit to produce all communications identified on the log, for two primary reasons. Plaintiff contends: 1) Spirit's in-house attorney, Dylan King, lied to the NLRB; and 2) Ms. Shulda engaged in improper ex parte communications with Plaintiff's former appointed attorney, Randall Rathbun (see discussion infra, Section III.B.2, p. 18). Plaintiff argues these actions of ...


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