United States District Court, D. Maryland
Jeffry E. Taylor (“Plaintiff”) filed this suit
against members of the Baltimore Police Department
(“BPD”) for actions relating to his employment as
a police officer with the Marine Unit. Currently pending are
Motions to Dismiss filed by three groups of Defendants, ECF
18, 19, 20, and Plaintiff's Motion for Leave to File a
First Amended Complaint, ECF 24. I have reviewed those
motions and the oppositions thereto. ECF 23, 27. No. hearing
is necessary. See Loc. R. 105.6 (D. Md. 2018). For the
reasons stated herein, Plaintiff's Motion for Leave to
File a First Amended Complaint will be granted, and the
pending Motions to Dismiss will be denied as moot.
filed his original Complaint on December 28, 2018, alleging
claims against the BPD, his immediate supervisor (Sergeant
Kurt Roepcke), three former BPD Commissioners or Interim
Commissioners (Kevin Davis, Darryl De Sousa, and Garry
Tuggle), a former BPD Major (Frederick Gilbart), the Mayor
and City Council of Baltimore, and the State of Maryland
(collectively, “Defendants”). ECF 1. After some
initial delay in the proceedings to permit the parties an
opportunity to conduct early, but unsuccessful, settlement
discussions, several subgroups of Defendants filed Motions to
Dismiss. ECF 18, 19, 20. Plaintiff opposed those motions, ECF
23, but simultaneously filed a Motion for Leave to File a
First Amended Complaint. ECF 24. The proposed First Amended
Complaint eliminates all claims against the BPD, the Mayor
and City Council of Baltimore, and the State of Maryland, in
addition to the claims against many of the defendants in
their official capacities. ECF 24-3. It also adds some new
factual allegations. Id.
this Court will begin by considering the Motion for Leave to
File a First Amended Complaint. Federal Rule of Civil
Procedure 15 provides that a party seeking to amend its
pleading after twenty-one days following service may do so
“only with the opposing party's written consent or
the court's leave.” Fed.R.Civ.P. 15(a)(2). However,
the Rule requires courts to “freely give leave when
justice so requires.” Id. The Fourth
Circuit's policy is “to liberally allow
amendment.” Galustian v. Peter, 591 F.3d 724,
729 (4th Cir. 2010). Accordingly, leave to amend should be
denied only if “prejudice, bad faith, or
futility” is present. See Johnson v. Oroweat Foods
Co., 785 F.2d 503, 509-10 (4th Cir. 1986) (interpreting
Foman v. Davis, 371 U.S. 178 (1962)); Hart v.
Hanover Cnty. Sch. Bd., 495 Fed.Appx. 314, 315 (4th Cir.
2012). Ultimately, the decision to grant leave to amend rests
in this Court's discretion. Foman, 371 U.S. at
182; Laber v. Harvey, 438 F.3d 404, 428 (4th Cir.
2006) (en banc).
oppose Plaintiff's motion on three grounds: unnecessary
delay, futility, and violation of LR 103.6. Beginning with
the final argument, it is true that Plaintiff's motion
violates Local Rule 103.6.d, which requires, “[b]efore
filing a motion requesting leave to file an amended pleading,
counsel shall attempt to obtain the consent of other
counsel.” Plaintiff's counsel failed to abide by
that rule, simply assuming that consent would not be
forthcoming due to Defendants' efforts to have the
original Complaint dismissed with prejudice. ECF 24 ¶ 4.
Counsel is warned that, where the Local Rules require the
parties to confer on any particular issue in the future, this
Court expects them to engage in actual discussion, rather
than simply making assumptions. However, it appears that in
this instance, the assumption proved accurate, since
Defendants are in fact opposing the motion for leave to
amend. In the interest of judicial efficiency, this Court
will not require Plaintiff to file a new motion, following a
conference that would be patently unsuccessful.
unnecessary delay, very little has transpired in this case
since its inception, due in large part to an extended stay to
accommodate the parties' joint request to schedule an
early settlement conference. In fact, this case was
effectively stayed from March 18, 2019 until the settlement
conference on September 18, 2019, with the pending motions
shortly thereafter. An amendment is deemed to cause undue
prejudice when it “raises a new legal theory that would
require the gathering and analysis of facts not already
considered by the opposing party [and] . . . the amendment is
offered shortly before or during trial.”
Johnson, 785 F.2d at 510 (citations omitted).
Conversely, a proposed amendment carries little prejudice
“if it merely adds an additional theory of recovery to
the facts already pled and is offered before any discovery
has occurred.” Laber, 438 F.3d at 427 (citing
Davis, 615 F.2d at 613). Here, any
“unnecessary delay” did not prejudice Defendants,
because no scheduling order has even been set in the case and
no discovery has occurred.
primary disputed issue, then, is futility. Defendants premise
their futility argument on the merits of the position laid
out in their Motions to Dismiss, ECF No. 18-20. The three
counts asserted in the proposed First Amended Complaint all
rely on a violation of Plaintiff's First Amendment
rights. ECF 24-3 (containing a § 1983 claim for First
Amendment retaliation; a claim for “Freedom of Speech
Retaliation” under Article 40 of the Maryland
Declaration of Rights; and a claim for violation of the Law
Enforcement Officers' Bill of Rights). As in their
12(b)(6) motions, Defendants contend that all three counts
fail because “as a matter of law, Plaintiff's
speech concerns Plaintiff's job duties not matters of
public concern and, even if Plaintiff spoke upon a matter of
public concern, his interest is outweighed by the BPD's
interest in maintaining order and efficiency and ensuring
effective policing.” ECF 27 at 5.
Fourth Circuit has stated, a proposed amendment is futile
when it “is clearly insufficient or frivolous on its
face.” Johnson, 785 F.2d at 510; see
also 6 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY
KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1487
(3d. ed. 2010) (“[A] proposed amendment that clearly is
frivolous, advancing a claim or defense that is legally
insufficient on its face, or that fails to include
allegations to cure defects in the original pleading, should
be denied.” (footnotes omitted)).
review for futility “does not involve an evaluation of
the underlying merits of the case.” Kolb v. ACRA
Control, Ltd., 21 F.Supp.3d 515, 522 (D. Md. 2014)
(quoting MTB Servs., Inc. v. Tuckman-Barbee Constr.
Co., No. RDB-12-2109, 2013 WL 1819944, at *3 (D. Md.
Apr. 30, 2013). “To the contrary, ‘[u]nless a
proposed amendment may clearly be seen to be futile because
of substantive or procedural considerations, . . . conjecture
about the merits of the litigation should not enter into the
decision whether to allow amendment.'” Next
Generation Grp., LLC v. Sylvan Learning Ctrs., LLC, No.
CCB-11-0986, 2012 WL 37397, at *3 (D. Md. Jan. 5, 2012)
(emphasis added) (quoting Davis v. Piper Aircraft
Corp., 615 F.2d 606, 613 (4th Cir.), cert.
dismissed, 448 U.S. 911 (1980))). Recently, this Court
discussed the overlap between a court's review for
futility under Rule 15 and for failure to state a claim under
There is no question, to be sure, that leave to amend would
be futile when an amended complaint could not survive a Rule
12(b)(6) motion. See U.S. ex rel. Wilson v. Kellogg Brown
& Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008). Yet
the Court need not apply the Rule 12(b)(6) standard when
determining whether leave to amend would be futile. The Court
applies a much less demanding standard: whether “the
proposed amendment is clearly insufficient or frivolous on
its face.” Johnson, 785 F.2d at 510.
Aura Light U.S. Inc. v. LTF Int'l LLC, Nos.
GLR-15-3198 & GLR-15-3200, 2017 WL 2506127, at *5 (D. Md.
June 8, 2017).
it may be within the trial court's discretion to deny
leave to amend when it is clear that a claim cannot withstand
a Rule 12(b)(6) motion. See, e.g., Wilson, 525 F.3d
at 376-79 (upholding a district court's denial of leave
to amend False Claims Act claims because the plaintiffs'
amendments attempted “to shoehorn what might have been
an ordinary FCA claim - and what really is a breach of
contract suit - into some sort of fraudulent inducement
action. This [the plaintiffs] simply cannot do.”);
Perkins v. United States, 55 F.3d 910, 916-17 (4th
Cir. 1995) (affirming the trial court's denial of leave
to amend after the trial court dismissed the complaint under
Rule 12(b)(6) based on the United States' sovereign
immunity, since the proposed amendments would have also been
dismissed under Rule 12(b)(6) on sovereign immunity grounds).
As this Court has also suggested, leave to amend may be
denied if proposed amendments are mere “[t]hreadbare
recitals of the elements of a cause of action” that are
clearly insufficient to plead a cause of action under Federal
Rule of Civil Procedure 8(a)(2). Kolb, 21 F.Supp.3d
at 522 (quoting Ashcroft v. Iqbal, 556 U.S. 662,
being said, it does not follow that every plaintiff seeking
leave to amend their claims must demonstrate that his claims
can withstand a Rule 12(b)(6) motion. Such a requirement
would render superfluous the Fourth Circuit's definition
of a futile claim as one that is “clearly insufficient
or frivolous on its face, ” Johnson, 785 F.2d
at 510 (emphasis added), and would run contrary to the Fourth
Circuit's well-established “policy to liberally
allow amendment in keeping with the spirit of Federal Rule of
Civil Procedure 15(a), ” Galustian, 591 F.3d
at 729; see also Coral v. Gonse, 330 F.2d 997, 998
(4th Cir. 1964).
the parties dispute the viability of Plaintiffs' claims
under a Rule 12(b)(6) standard, it cannot be said that his
allegations are “clearly insufficient or
frivolous.” Plaintiff alleges that he engaged in speech
relating to a matter of public concern, namely a waste of
taxpayer dollars and an environmental hazard created by
Defendants. ECF 24-3. Plaintiff further alleges that his
interest in First Amendment expression about those matters of
public concern outweighs the BPD's interest in
maintaining control over its workplace. Id. Finally,
Plaintiff alleges that he was subjected to retaliation,
including removal from the Marine Unit, as a result of his