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Mitchell v. CNO Financial Group, Inc.

United States District Court, D. New Mexico

February 23, 2017

TEDDY RANDALL MITCHELL, Plaintiff,
v.
CNO FINANCIAL GROUP, INC. d/b/a Bankers Life and Casualty, and JEFFREY A. HAKES, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO AMEND

          William P. Lynch, United States Magistrate Judge

         Plaintiff Teddy Mitchell, proceeding pro se, filed an opposed motion to amend the complaint (Doc. 33) and a memorandum purportedly pursuant to Federal Rule of Civil Procedure 19 justifying the joinder of Brad Davis as an additional pro se plaintiff (Doc. 34). Defendants filed a response on January 10, 2017 (Doc. 35), but Mitchell has filed neither a reply nor a notice of briefing complete. See D.N.M.LR-Civ. 7.4(e) (“Upon completion of briefing, the movant must file a notice certifying that the motion is ready for decision and identifying the motion and all related filings by date of filing and docket number.”) Mitchell wants to amend his complaint to include an additional pro se plaintiff, Davis, who also signed the proposed amended complaint, and to add additional facts. The Defendants oppose the motion because, they contend, Mitchell would be representing Davis and thus practicing law without a license, and because the motion lacks good cause. Having reviewed the motion and the relevant law, I grant in part and deny in part the motion to amend.

         Mitchell's motion to amend is governed by Federal Rule of Civil Procedure 15(a).[1] After a responsive pleading has been served, a party may amend his pleadings only by leave of court or with written consent from the opposing party. Fed.R.Civ.P. 15(a)(2). “The court should freely give leave [to amend] when justice so requires.” Id. A court may refuse to grant leave to amend when the opposing party shows undue delay, undue prejudice, bad faith or dilatory motive, failure to cure deficiencies by previously granted amendments, or futility of amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Jefferson Cty. Sch. Dist. No. R-1 v. Moody's Inv'rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999).

         While Rule 8(a)(2) provides that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” the Supreme Court clarified this standard in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). While the Twombly/Iqbal standard does not require significantly heightened fact-pleading in a complaint, the standard is more than a minimal change from prior jurisprudence and is instead a middle ground. Id. at 1191. Under this standard, to withstand a motion to dismiss, a complaint must contain sufficient factual allegations, accepted as true, “to state a claim for relief that is plausible on its face.” Id. at 1190 (quoting Twombly, 550 U.S. at 670). A court must first identify those allegations in the complaint that are not entitled to the assumption of truth. Id. Thus, allegations which are legal conclusions, bare assertions, conclusory statements or “‘a formulaic recitation of the elements of a cause of action' will not suffice.” Id. at 1191 (quoting Twombly, 550 U.S. at 555). The court must then determine “whether the remaining, factual allegations plausibly suggest the defendant is liable.” Id. In determining whether a complaint states a plausible claim for relief, the court will consider the nature and specificity of the allegations based on the claims asserted in the case. Id.

         Because Mitchell is a pro se litigant, I must construe his pleadings liberally and hold them to a less stringent standard than is required of a party represented by counsel. See Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 2008) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Liberal construction requires courts to make some allowance for a pro se litigant's “failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at 1110) (alterations omitted). However, “the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Id.

         As an initial matter, I note that the Plaintiffs assert diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 33 at 12.) It is immaterial whether Defendant Jeffrey Hakes is a citizen of New Mexico or of Indiana because the Plaintiffs bring federal claims. Thus, I exercise federal question jurisdiction pursuant to 28 U.S.C. § 1331.

         Additionally, Plaintiffs appear to assert criminal claims, including a charge of federal tax evasion against Hakes. “[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another” and cannot base a claim for which relief can be granted on criminal statutes. Diamond v. Charles, 476 U.S. 54, 64 (1986) (quotation omitted). No amount of factual amendment will convert these claims from criminal charges into a civil cause of action. To the extent that Plaintiffs attempt to assert criminal claims in this case, the motion to amend is denied.

         There are three general categories of claims brought on behalf of both Plaintiffs in the proposed amended complaint: federal civil rights and employment claims, state employment claims, and common law claims. (See generally Doc. 33.) I address each in turn.

         To prove a claim for deprivation of rights under 42 U.S.C. § 1983, Mitchell and Davis must show prove that 1) someone acting under color of law 2) deprived them of “any rights, privileges, or immunities secured by the Constitution and laws.” The proposed amended complaint does not include an allegation of any action taken by any person who could be construed as acting under color of law. That is, no one purportedly acted with state authority. Because the proposed amended complaint lacks this critical element, it would not survive a motion to dismiss. Accordingly, the motion to amend is denied as to this claim.

         Mitchell and Davis also attempt to bring a claim under 42 U.S.C. § 1981. Section 1981 prohibits “racial discrimination [and] retaliation against those who oppose it.” U. of Tex. S.W. Med. Ctr. v. Nassar, __ U.S. __, __, 133 S.Ct. 2517, 2529 (2013) (citing CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445 (2008)). To establish a claim under § 1981, Plaintiffs must show that they are 1) members of a racial minority; 2) that the defendants intended to discriminate on the basis of race; and 3) that the discrimination concerned an activity enumerated by the statute, such as the ability to make and enforce contracts, enjoy the full and equal benefit of the laws, etc. Shawl v. Dillard's Inc., 17 F. App'x 908, 910-11 (10th Cir. 2001) (unpublished); Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). The Plaintiffs allege that they are both white men (Doc. 33 at 18) and are thus not members of a racial minority. Because the Plaintiffs do not allege the first element of a § 1981 claim, their claim fails as a matter of law. The motion to amend is thus denied as to this claim.

         Next, Mitchell and Davis purport to bring gender or sex based discrimination claims under Title VII of the Civil Rights Act of 1964. (See Doc. 33 at 15.) I construe this as a claim brought under 42 U.S.C. § 2000e-5 for sex based discrimination of the disparate treatment type in violation of § 2000e-2 and discrimination for making charges of or opposing purportedly unlawful employment practices in violation of § 2000e-3.

         As for claims pursuant to § 2000e-2, “[i]t is unlawful for employers to deprive an individual of employment opportunities based on his . . . sex.” Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012). When, as is generally the case, a plaintiff “cannot produce direct evidence of discrimination, . . . the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 . . . (1972), applies.” Id. The plaintiff bears the burden of establishing a prima facie case of discrimination by showing 1) membership in a protected class, 2) an adverse employment action, and 3) that the adverse employment action took place under circumstances giving rise to an inference of discrimination. Id. (citing EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007)). The burden then shifts to the employer to assert a legitimate, nondiscriminatory reason for its actions. Id. If such a showing is made, the burden shifts back to the plaintiff to produce evidence that the stated nondiscriminatory reason is mere pretext for discriminatory animus. Id.

         At this stage, however, the question is whether the proposed amended complaint presents sufficient factual allegations to establish a prima facie case of discrimination. Mitchell and Davis, both men, allege that they were treated differently than a similarly situated female employee. Mitchell alleges that the female employee was held to a lower standard, was given preferential treatment in her schedule, was not required to follow the same licensing requirements, was given preferential treatment in terms of “leads” and travel reimbursement, and was given a more favorable compensation package. (Doc. 33 at 14-18.) Davis alleges that the female employee was not required to follow the same licensing requirements, was given a more favorable compensation package, was given preferential treatment in her schedule, and was given preferential treatment in terms of “leads” and travel reimbursement. (Id. at 16-18.) The adverse employment action, allegedly, is that Plaintiffs were not given the same opportunity to make as much money as the female employee and that Mitchell was either forced to quit or was fired.

         The Defendants do not address the merits of the amended complaint in their response to the motion to amend, and thus have offered no reason to conclude that this rather meager factual predicate is insufficient to sustain the motion to amend as to the Plaintiffs' claims ...


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