United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO FILE AMENDED COMPLAINT
MATTER comes before the Court upon Plaintiff's Opposed
Motion for Leave to Amend His Complaint, filed December 22,
2017 (Doc. 40). Having reviewed the
parties' briefs and applicable law, the Court finds that
Plaintiff's motion is not well-taken and, therefore, is
an employment discrimination claim. Plaintiff is a former
employee of Jacobs Technology, Inc. (“Jacobs”)
and in the current Amended Complaint (Doc. 6) alleges
discrimination, retaliation, wrongful termination and hostile
work environment, in violation of the Americans with
Disabilities Act of 1990, 42 U.S.C. §12101 et seq., and
the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621-632. Plaintiff seeks to amend the complaint
to include a claim brought under the Family and Medical Leave
Act of 1993, 29 U.S.C. §2615(a)(1), (2)
Fed.R.Civ.P. 15(a)(2), a court should freely give leave to
amend pleadings “when justice so requires.”
Foman v. Davis, 371 U.S. 178, 182 (1962); In re
Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. 571,
579-80 (D.N.M. 2010). The decision about whether to provide a
party leave to amend pleadings “is within the
discretion of the trial court.” Minter v. Prime
Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006).
Although leave to amend is generally freely granted, it will
not be permitted where the proposed amendment will be futile,
or where the request is untimely and unduly prejudicial to
the opposing part. Castleglen, Inc., et al. v.
R.T.C., 984 F.2d 1571 (10th Cir. 1993).
contends that the motion to amend should be denied on all
three grounds. Plaintiff claims that he is not seeking to add
a new cause of action and that his FMLA claim, and although
it may be outside the allowable FMLA limitations period, is
nevertheless timely because it relates back to the original
complaint, which was filed in state court on November 12,
2016. Following removal of this case to federal court,
Plaintiff amended the complaint on February 7, 2017.
Discovery in this case ended on December 18, 2017. Doc. 24.
Plaintiff's deposition in this case, on November 15,
2017, Defendant's counsel asked Plaintiff questions about
his FMLA leave in order to understand whether he claimed any
medical condition that would support his ADA claims.
Plaintiff explained that he had given his employer notice for
leave pursuant to the FMLA and that the human resources
director had received the notice on January 5, 2015. The
notice requested FMLA leave for the delivery of his child and
post-partum recovery for his wife and that the anticipated
delivery date was July 22, 2015. Doc. 40-1 at 1 (Ex. 42).
Plaintiff also testified at his deposition that the
company's branch manager called Plaintiff on July 17,
2015 to discharge him as he was driving his wife to the
delivery room to deliver his child. Ex. A at 163-64.
end of the scheduled depositions, Plaintiff's counsel
advised that Plaintiff intended to seek leave to amend the
complaint to add claims under the FMLA. Plaintiff filed the
motion to amend over one month later, seeking to add an FMLA
claim to the complaint.
to the current complaint, see Doc. 6, Plaintiff
claims that he was demoted in October 2010 because of his age
when he was transferred from his position in Special
Operations to Field Operations, and that Defendant's
response to his complaints of discrimination was met with
threats of disciplinary action and a hostile work
environment. Then, in July 2015, Plaintiff became
injured when another Jacobs employee ran over him with a
truck. As a result of the work-related injury, Plaintiff
became disabled and felt that he was regarded by Defendant as
disabled. Plaintiff contends that Defendant's subsequent
discharge of Plaintiff was pretextual for discriminatory
motives on the basis of age and disability.
Court addresses first whether the motion is untimely,
prejudicial and/or futile, and then considers whether the
amendment may relate back to the original pleading to avoid
the untimeliness issue.
Prejudice to Defendant
claims it would be substantially prejudiced by the allowance
of the amendment in light of the advanced stage of this case.
Plaintiff failed to include any cause of action related to an
FMLA claim until December 22, 2017, over five months
following his deadline to amend pleadings and four days after
the close of discovery.
delay in filing this motion does not appear to be egregious
on its face; after all, the dispositive motions deadline
expired only recently on January 18, 2018, about one month
after Plaintiff filed the motion to amend. Doc. 24.
Nevertheless, the Court finds that the delay poses no small
impediment to Plaintiff's lately-filed request to amend
the complaint when considered in context: Plaintiff
admittedly had knowledge of all the background facts giving
rise to a potential FMLA claim as far back as July 17, 2015,
the date of his termination. In his deposition, Plaintiff
stated that he had the “perception” that
“the company was tired of [him] taking leave.”
Doc. 45-1 (Ex. A) at 91. Also, this motion was made after a
five-month discovery period had ended. Defendant is already
underway in the preparation of dispositive arguments on
Plaintiff's claims, having recently filed its motion for
summary judgment. Doc. 44.
really is little explanation for Plaintiff's failure to
assert an FMLA claim much earlier than what he has done,
given that all the necessary facts and
“perceptions” have been known to Plaintiff since
his termination in July of 2015, according to his own
testimony. See Ritchie U.S. ex rel. Ritchie v. Lockheed
Martin Corp., 558 F.3d 1161, 1166 (10th Cir. 2009)
(finding that motion to amend was untimely and unduly
prejudicial where it was made after close of a long discovery
period and after defendant had filed a motion for summary
judgment premised on the releases signed by plaintiff). The