United States District Court, D. Maryland, Southern Division
ROBERTO E. MARLEY, Plaintiff,
v.
KAISER FOUNDATION HEALTH, PLAN OF THE MID-ATLANTIC STATES, INC. Defendant.
MEMORANDUM OPINION
PAUL
W. GRIMM UNITED STATES DISTRICT JUDGE.
Plaintiff
Roberto Marley ("Marley") has filed a series of
proposed amended complaints in the 18 months since he
initiated this lawsuit against his former employer, Kaiser
Foundation Health Plan of the Mid-Atlantic States, Inc.
("Kaiser"). He now seeks leave to amend his
complaint for the fourth time, hoping to reassert a
sex-discrimination claim he had voluntarily dismissed before
the Court issued its ruling granting in part and denying in
part Kaiser's motion to dismiss the case.[1] I deny his
request for leave and direct Kaiser to file an answer to the
claims that remain, as identified in the Court's
September 20, 2018 Memorandum Opinion and Order, ECF Nos. 32,
33.
FACTUAL
BACKGROUND
This
action began on May 2, 2017, in the Circuit Court for
Montgomery County, Maryland, where Marley filed his first
complaint. ECF No. 2. This pleading, written without the aid
of counsel, accused Kaiser of firing Marley in retaliation
for a charge he filed with the U.S Equal Employment
Opportunity Commission. Id. at 3. Marley soon
retained counsel, who filed an amended complaint that more
clearly identified the claims Marley wished to assert.
See First Amended Complaint, ECF No. 4. Those claims
were: wrongful termination; maintaining a hostile work
environment, in violation of Title VII of the Civil Rights
Act; sex discrimination, also in violation of Title VII; and
retaliation, in violation of the Family Medical Leave Act
("FMLA"). Id. Kaiser promptly removed the
case to this Court and filed a motion to dismiss the suit for
failure to state a claim. See Notice of Removal, ECF
Nos. 1; First Motion to Dismiss, ECF No. 6.
Not
long afterward, on August 9, 2017, Marley asked the Court for
leave to file a second amended complaint to add "newly
discovered allegations and facts not made in the First
Amended Complaint." ECF No. 11. Kaiser did not object
but sought to reserve the right to revise its motion to
dismiss to account for the new allegations. See ECF
No. 15. The Court granted Marley's request for leave, ECF
No. 17, prompting Kaiser to file a motion to dismiss the
Second Amended Complaint, ECF No. 19. Kaiser's memorandum
in support of the motion argued all of Marley's claims
should be dismissed, either because he had failed to exhaust
his administrative remedies or because he had failed to
allege sufficient facts to state a claim. See ECF
No. 19-2. The memorandum asserted, in particular, that the
Title VII sex-discrimination claim failed for each of those
two reasons. See ECF No. 19-2.
While
the second motion to dismiss was pending, Marley filed a
motion asking the Court for leave to file a third amended
complaint. See Mot. to File Third Am. Compl., ECF
No. 23. Marley's motion, dated January 11, 2018,
explained the newly proposed version "voluntarily
dismisses or substitutes" the sex-discrimination claim,
replacing it with a claim of retaliation under Title VII.
Id. at 1. The motion to amend attributed this
decision to "newly discovered evidence," asserting
that a review of Marley's EEOC charge uncovered facts
that, in Marley's view, supported a claim that the EEOC
charge was the reason Kaiser reprimanded him and refused to
promote him. Id. at 2-3. "Marley," the
motion stated, "is simply trying to fix a claim that may
be insufficient in substance and substitute it with a claim
that is more in line with the existing allegations of his
complaint." Id. at 3.
Kaiser
objected to the motion to amend, arguing Marley should not be
allowed to amend the complaint yet again after repeatedly
failing to cure deficiencies in earlier submissions. January
2018 Resp. in Opp'n 4-7, ECF No. 29. To this, Marley
responded that the voluntary dismissal of the
sex-discrimination claim was itself proof that Marley was not
simply dressing up the same old claims. Pl.'s February
2018 Reply 2, ECF No. 30. On the contrary, he noted,
"Marley has conceded that he did not have a viable
adverse employment action for a Sex Discrimination
claim." Id.
The
Court held a motions hearing on February 2, 2018, where, as
Judge Hazel later noted in a memorandum opinion, "there
was confusion as to which claims were still being pursued by
the Plaintiff and which had been conceded." Mem. Op. 7
n.5, ECF No. 32. Ultimately, Judge Hazel treated the proposed
third amended complaint as the operative complaint and
declared: "Any claims alleged in prior complaints but
not appearing in the most recent iteration will be considered
dismissed." Id. The Court allowed the wrongful
termination and FMLA retaliation claims to proceed but
dismissed the hostile-work-environment claim. Id. at
16. As for the Title VII retaliation claim, which Marley had
opted to assert in place of the abandoned sex-discrimination
claim, the Court preserved it, but on a limited basis; Marley
could continue to seek relief for the alleged reprimand and
threat of termination, but not for the denial of a promotion.
Id. at 14-15.
Soon
afterward, in a telephone conference call with Judge Hazel
and opposing counsel, Marley's attorney expressed an
interest in reasserting the abandoned sex-discrimination
claim. See ECF No. 36. In an ensuing brief, Marley
seized on language in the Court's Memorandum Opinion
observing that some of the allegations in the EEOC charge
were less consistent with a hostile-work-environment claim
and "more in line with a claim of disparate treatment,
or discrimination, claims that do not appear in the Third
Amended Complaint." See Pl.'s Show Cause
Letter 2-3, ECF No. 37; Mem. Op. 11. Marley argued that
permitting him to reassert the sex-discrimination claim would
not prejudice Kaiser because the suit was "still very
much in its infancy" and the legal issue had
"already essentially been briefed and ruled upon."
Pl.'s Show Cause Letter 2. Marley pointed out the
Memorandum Opinion did not expressly state whether the
dismissal of the sex-discrimination claim was with or without
prejudice. Id. at 3.
Kaiser,
in response, argued Marley chose to withdraw the claim and
could not reassert it now "merely because he is unhappy
with this Court's Opinion." Def.'s Resp. to Show
Cause Letter 4. The company accused Marley of unduly delaying
the resolution of the case and said the proposed amendment
would prejudice Kaiser, which would have to "file yet
another motion to dismiss when the issue could have been
dealt with as part of this Court's Opinion."
Id.
Having
been fully briefed, Marley's request to file a fourth
amended complaint is now ripe for decision. No hearing is
necessary. See Loc. R. 105.6.
DISCUSSION
A
plaintiff may amend his or her complaint once as a matter of
course. See Fed. R. Civ. P. 15(a)(1). After that,
though, amendments are permissible "only with the
opposing party's written consent or the court's
leave." Fed.R.Civ.P. 15(a)(2). The Federal Rules of
Civil Procedure direct courts to "freely give leave when
justice so requires," id, a mandate the Supreme
Court has highlighted as one that "is to be
heeded," Foman v. Davis, 371 U.S. 178, 182
(1962). "The Fourth Circuit has stated that leave to
amend under Rule 15(a) should be denied only in three
situations: when the opposing party would be prejudiced, when
the amendment is sought in bad faith, or when the proposed
amendment would be futile." Longue v. Patient First
Corp., 246 F.Supp.3d 1124, 1126 (D. Md. 2017) (citing
Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)).
It is
not at all uncommon for courts to grant a plaintiff leave to
amend the complaint at this stage of the proceedings, where
the court has issued a ruling on the defendant's motion
to dismiss and awaits the filing of the defendant's
answer. See Laber, 438 F.3d at 427; 6 Charles Alan
Wright et al., Federal Practice and Procedure § 1488 (3d
ed. 1998). In fact, in the seminal case of Foman v.
Davis, the Supreme Court held a trial court should have
allowed a plaintiff to amend her complaint even after
entering a judgment for the defendant on the basis of a
motion to dismiss. 371 U.S. at 179, 182. It was the Supreme
Court's view in that case that the proposed amendment
"would have done no more than state an alternative
theory for recovery." Id. at 182. The Federal
Rules recognize a plaintiffs theory of the case may evolve as
the litigation progresses, though the opportunity to bring
new claims will typically diminish with time, given the
heightened risk of prejudice to the defendant after discovery
has closed and trial nears. See Sharkey IRO/IRA v.
Franklin Res.,263 F.R.D. 298, 301 (D. Md. 2009);
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