United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge
a half years, two supplements and two amended complaints
after Plaintiff Jeffery Battle filed his original Complaint,
and following the dismissal of all claims except his
retaliation claim, he has filed a Motion for Leave to File
Third Amended Complaint to reinstate and attempt to properly
allege the five counts in his Second Amended Complaint. ECF
No. 65. Because Battle already repeatedly failed to cure his
pleading deficiencies in his prior amendments, and these
amendments have caused unnecessary delay, and are futile, I
will deny his motion.
originally filed suit, pro se, against his employer,
the U.S. Department of Health and Human Service's
National Institutes of Health (the “Agency”), on
July 15, 2014, setting forth the grounds for his claims of
discrimination and retaliation in a 209-page, rambling
Complaint. ECF Nos. 1, 1-1, 1-2. Not satisfied with his
initial Complaint, he then filed a 20- page Supplement,
accompanied by 97 pages of exhibits, approximately one month
later, and then a 5-page Supplement approximately one month
after that. ECF Nos. 5, 5-1 - 5-10, 8. Battle then retained
counsel and sought three extensions of time to file an
Amended Complaint, ECF Nos. 10, 12, 15, ultimately filing a
40-page Amended Complaint on March 27, 2015, ECF No. 17.
Although that complaint appeared to pare down the pleadings
considerably, its relative brevity was illusory, because it
actually “re-alleged and incorporated by
reference” in each of its ten counts “the
information in Plaintiff's original complaint.” Am.
Compl. ¶¶ 45, 51, 57, 62, 65, 68, 71, 74, 77, 81.
Thus, if anything, it expanded Plaintiff's filings.
issued a Case Management Order on August 3, 2015, setting
forth the procedures governing the management of this case.
ECF No. 23. In accordance with that Order, the Agency
identified deficiencies it perceived in the Amended Complaint
and sought leave to file a motion to dismiss or for summary
judgment in its favor. ECF No. 24. Following a pre-motion
conference call, I ordered Battle “to file a second
amended complaint by October 5, 2015 that complies with
Fed.R.Civ.P. 8 and eliminates the argument and surplussage
present in the Amended Complaint.” ECF No. 26. I
granted the Agency leave to file a motion to dismiss after
Battle amended his pleadings if it regarded the Second
Amended Complaint as deficient. Id. I also issued a
Letter Order to provide guidance for Battle in drafting a
Second Amended Complaint that complied with Fed.R.Civ.P. 8.
ECF No. 27. Battle then sought an extension of time to file
the Second Amended Complaint, ECF No. 28, which I granted,
extending the deadline to October 19, 2015. ECF No. 29.
Second Amended Complaint that Battle filed on October 19 did
not comply with this Court's Local Rules, and the
Clerk's Office marked it “filed in error.”
ECF No. 30. On October 29, 2015, Battle properly filed his
Second Amended Complaint, having amended it so extensively
that it was “a different document” and he did not
include a red-lined version. ECF Nos. 32, 32-1. The Second
Amended Complaint was only nineteen pages and included only
five counts (race discrimination, gender discrimination,
retaliation and harassment for engaging in protected
activities, hostile work environment, and disability
discrimination), but again its brevity was illusory, as each
count again “re-alleged and incorporated by
reference” all of “the information in
Plaintiff's original complaint.” Second Am. Compl.
¶¶ 31, 37, 43, 48, 51.
believing that Battle's pleadings were deficient, the
Agency filed a Motion to Dismiss or, in the Alternative, for
Summary Judgment, ECF No. 42. Following briefing, ECF Nos.
42-2, 47, 49, I issued a comprehensive Memorandum Opinion and
Order, dismissing all but one count because Battle failed to
exhaust his administrative remedies as to some of his claims
and failed to state a claim for race or gender
discrimination, hostile work environment, or
“[d]iscrimination based on disability” in the
remaining allegations. Sept. 19, 2016 Mem. Op. & Order
1-2, ECF No. 51. To the extent that his retaliation claim was
based on his termination, I dismissed it as well.
Id. The remainder of his retaliation claim, Count
Three, was all that survived the motion. Id.
Agency filed an Answer with regard to the retaliation claim,
ECF No. 54, and I issued a Scheduling Order, ECF No. 58, and
held a Rule 16 conference to discuss the Scheduling Order on
December 19, 2016, ECF No. 60. Discovery has commenced, and
the expert disclosure deadlines have passed. Scheduling Order
Scheduling Order set a January 23, 2017 deadline for amending
the pleadings. Id. On that date, Battle filed a
Third Amended Complaint without a motion for leave to amend
(in violation of this Court's Local Rules), and the
Clerk's Office marked it “filed in error.”
ECF No. 63. The next day, Battle filed a Motion for Leave to
File a Third Amended Complaint, along with a proposed amended
complaint, but again failed to attach a redlined version as
the Local Rules require; again, the Clerk's Office marked
it “filed in error.” ECF Nos. 64, 64-1. Finally,
on February 3, 2017, eleven days after the deadline set in
the Scheduling Order, Battle filed a Motion for Leave to File
a Third Amended Complaint, along with a proposed amended
complaint and a redlined version. ECF Nos. 65, 65-1, 65-2.
That motion was struck for failure to comply with the Case
Management Order's requirement that parties file a
pre-motion conference request in letter format before filing
a substantive motion. ECF No. 67. Accordingly, Battle's
repeated filings in violation of this court's Case
Management Order and the Local Rules of this Court resulted
in his Third Amended Complaint being stricken. By the time
Battle managed to file an appropriate motion, the deadline
for amendment of pleadings in the Scheduling Order had
a conference call with regard to the motion, I accepted the
motion as filed and permitted the parties to brief it in
letter format, which they have done. ECF Nos. 68, 69, 70. The
motion now is ripe, and a hearing is not necessary.
See Loc. R. 105.6.
proposed Third Amended Complaint, true to form, Battle
“incorporates the allegations in his Second Amended
Complaint by reference, ” Third Am. Comp. 1; as noted,
the Second Amended Complaint in turn incorporated the
original Complaint. Like the Second Amended Complaint, this
latest iteration includes counts for racial discrimination,
gender discrimination, retaliation and harassment for
engaging in protected activities, hostile work environment,
and disability discrimination, even though I already have
dismissed all but the retaliation claim from the Second
Amended Complaint. And, despite the guidance I provided with
regard to complying with Rule 8 in drafting a complaint, in
amending one paragraph of the Third Amended Complaint, Battle
catalogs “Defendant's discriminatory conduct”
in a thirty-six line sentence. Id. ¶ 5. This
one paragraph continues for three pages and hardly can be
considered a “short and plain statement.”
to grant a motion for leave to amend is within this
Court's discretion. Foman v. Davis, 371 U.S.
178, 182 (1962). Rule 15(a)(2) typically provides the
standard for whether to grant a motion for leave to amend
that a plaintiff files more than twenty-one days after
defendants file a responsive pleading or motion to dismiss.
See id.; Fed.R.Civ.P. 15(a)(2). When the plaintiff
moves to amend after the deadline established in the
scheduling order for doing so, however, Rule 16(b)(4) becomes
the starting point in the Court's analysis. CBX
Techs., Inc. v. GCC Techs., LLC, No. JKB-10-2112, 2012
WL 3038639, at *3 (D. Md. July 24, 2012). Thus, “once
the scheduling order's deadline for amendment of the
pleadings has passed, a moving party first must satisfy the
good cause standard of Rule 16(b); if the moving party
satisfies Rule 16(b), the movant then must pass the tests for
amendment under [Rule] 15(a).'” Id.
(quoting Odyssey Travel Ctr., Inc. v. RO Cruises,
Inc., 262 F.Supp.2d 618, 631 (D. Md. 2003)); see
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th
cause” means that scheduling deadlines cannot be met
despite a party's diligent efforts.' . . .
Carelessness is not compatible with a finding of diligence
and offers no reason for a grant of relief.” CBX
Techs., Inc., 2012 WL 3038639, at *4 (quoting
Potomac Elec. Power Co. v. Elec. Motor Supply, Inc.,
190 F.R.D. 372, 375 (D. Md. 1999) (citation omitted)). The
Court focuses “less . . . on the substance of the
proposed amendment and more . . . [on] the timeliness of the
motion to amend ‘and the reasons for its tardy
submission.'” Id. (quoting Rassoull v.
Maximus, Inc., 209 F.R.D. 372, 373-74 (D. Md. 2002)).
This is because “[a] court's scheduling order
‘is not a frivolous piece of paper, idly entered, which
can be cavalierly disregarded by counsel without
peril.'” Id. (quoting Potomac Elec.
Power Co., 190 F.R.D. at 376 (citation and quotation
marks omitted)). Specifically, the Court considers whether
the moving party acted in good faith, the length of the delay
and its effects, and whether the delay will prejudice the
non-moving party. Tawwaab v. Va. Linen Serv., Inc.,
729 F.Supp.2d 757, 768-69 (D. Md. 2010). When “at least
some of the evidence needed for a plaintiff to prove his or
her claim did not come to light until after the amendment
deadline, ” a plaintiff ...