KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Plaintiff's
Plaintiff Mariam Ohimai ("Plaintiff") initiated this employment discrimination and civil rights case against her former employer, Defendant Developmental Disabilities Resource Center ("Defendant"), on June 14, 2018, in Jefferson County District Court. Compl. [#3]. In her original Complaint [#3], Plaintiff asserted the following seven "counts": (1) "wrongful termination/constructive discharge"; (2) negligent infliction of emotional distress; (3) sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (4) age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621; (5) "reprisal for engaging in protected activities"; (6) "hostile and abusive work environment"; and (7) "back pay for vacations and breaks." Id. ¶¶ 16-39.
On August 24, 2018, Defendant removed the case to this Court. Notice of Removal [#1]. On August 31, 2018, Defendant filed its Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) [#8] (the "First Motion to Dismiss"), seeking to dismiss all seven "counts." Plaintiff did not file a response to Defendant's First Motion to Dismiss. Instead, Plaintiff filed her [First] Amended Complaint [#14] (the "First Amended Complaint") on October 15, 2018, as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1).
After Plaintiff filed her First Amended Complaint, Defendant renewed its request to dismiss all of Plaintiff's claims by filing its Motion to Dismiss Amended Complaint [#19] (the "Second Motion to Dismiss") on November 12, 2018. Despite Plaintiff being granted an extension of time to file her response to the Second Motion to Dismiss on or before December 7, 2019, no response was filed. Minute Order [#24]. Rather, on December 7, 2019, Plaintiff filed her Motion to Partially Dismiss Some Claims [#26] (the "Motion to Voluntarily Dismiss") in which she seeks to voluntarily dismiss Count I (breach of contract), Count II (negligent infliction of emotional distress), and Count VII ("back pay for vacations and breaks"). Defendant has not filed any objection to Plaintiff's Motion to Voluntarily Dismiss which, along with Defendant's Second Motion to Dismiss [#19], currently remain pending before Chief Judge Brimmer.
On December 17, 2018, Plaintiff filed the instant Motion [#31] in which she seeks leave to amend her First Amended Complaint [#14] pursuant to Fed. R. Civ. P. 15(a)(2). Plaintiff tenders a proposed Second Amended Complaint [#34] for filing that includes approximately six new factual allegations and asserts the same seven counts currently found in the First Amended Complaint.
Confusingly, Plaintiff includes all seven counts in the proposed Second Amended Complaint despite the fact that, ten days prior to filing the Motion [#31], Plaintiff sought to voluntarily dismiss Counts I, II, and VII in her Motion to Voluntarily Dismiss [#26]. Given this discrepancy, which Defendant points to in its Response [#38], the Court issued an Order to Show Cause [#50] on April 30, 2019. The Court directed Plaintiff to show cause as to why her Motion [#31] should not be denied with respect to those counts that Plaintiff concurrently seeks to dismiss. Order to Show Cause [#50] at 3.
Plaintiff timely filed her Response to the Order to Show Cause [#51] on May 7, 2019. There, Plaintiff first explains that her failure to file a reply regarding the instant Motion [#31] to correct this discrepancy was due to health challenges her attorney was experiencing. Response to the Order to Show Cause [#51] at 1. Plaintiff further states:
Id. While Plaintiff's explanation regarding "ease of numbering" seems preposterous, the Court accepts Plaintiff's stated intention that she no longer wishes to pursue those claims. Therefore, the Court construes Plaintiff's Motion [#31] as seeking to amend the First Amended Complaint [#14] by withdrawing Counts I, II, and VII and including additional factual allegations relating to Plaintiff's remaining claims (Counts III, IV, V, and VI).
As an initial matter, the parties' deadline for the amendment of pleadings was January 30, 2019. Sched. Order [#30] § 9(a). Plaintiff's Motion [#31] was filed on December 17, 2018, five days after the Rule 16(b) Scheduling Conference, and is therefore timely. See Minute Entry [#29].
The Court has discretion to grant a party leave to amend her pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave when justice so requires."). "In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require, be `freely given.'" Foman, 371 U.S. at 182 (quoting Fed. R. Civ. P. 15(a)(2)). Potential prejudice to a defendant is the most important factor in considering whether a plaintiff should be permitted to amend its complaint. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006). "Courts typically find prejudice only when the [proposed] amendment unfairly affects the defendants in terms of preparing their defense to [claims asserted in the] amendment." Id. (quotation omitted).
In its Response [#38], Defendant opposes the Motion [#31] on grounds of futility and bad faith or dilatory motive. See Response [#38] at 1 ("Plaintiff's proposed amendments are futile and serve only to cause further delay."). In short, Defendant contends that "Plaintiff should not be allowed to prolong this action indefinitely by filing futile amendments each time Defendant files a motion to dismiss." Id.
With respect to Defendant's futility argument, it is well settled that a proposed amendment is futile only if the complaint, as amended, would not survive a motion to dismiss. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson County Sch. Dist. v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir. 1999)). "In ascertaining whether plaintiff's proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to plaintiff, and the allegations in the complaint must be accepted as true." Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994). Moreover, "[a]ny ambiguities must be resolved in favor of plaintiff, giving [her] the benefit of every reasonable inference drawn from the well-pleaded facts and allegations in [her] complaint." Id. (quotations omitted).
Here, because Plaintiff's tendered Second Amended Complaint [#32] does not add any new claims, Defendant simply repeats (by incorporating) arguments raised in its Second Motion to Dismiss [#19]. Response [#38] at 6 ("Defendant incorporates the arguments set forth [in the Second Motion to Dismiss] and provides the following non-exclusive summary of the bases for dismissal."). In providing a brief summary of the arguments made in the Second Motion to Dismiss [#19], Defendant generally contends that Counts III, IV, V, and VI must be dismissed because Plaintiff fails to state claims for race or sex discrimination, age discrimination, unlawful retaliation, or hostile work environment. Id. at 7-9. Additionally, Defendant asserts that the Court lacks subject matter jurisdiction over Counts III, IV, and V, because Plaintiff failed to assert any claims for sex discrimination, age discrimination, or unlawful retaliation in her EEOC charge. Id. at 7-8 (citing Def.'s Ex. 1, Second Motion to Dismiss [#19-1].)
The Court first notes that Defendant does not explain its futility position with sufficient detail in the Response and primarily directs the Court to read the Second Motion to Dismiss [#19]. See id. at 5-10. However, because Defendant's Second Motion to Dismiss [#19] has not been referred to the undersigned for a recommendation, the Court expresses no opinion as to the merits of Defendant's arguments raised therein. See Tony's Tap, LLC v. PS Enterprises, Inc., No. 08-cv-01119-MSK-KLM, 2009 WL 1394308, at *3 (D. Colo. May 19, 2009) ("[I]t is not appropriate for [a Magistrate Judge] to pass judgment on the merits of a position asserted in a pleading which is pending before another judge for ruling[.]").
Moreover, given that Plaintiff has not responded to Defendant's arguments for dismissal, there is limited briefing on those issues. Thus, the Court is not inclined to delve deeply into the merits of Plaintiff's claims at this stage of the proceedings. See Foman, 371 U.S. at 182 ("If the underlying facts or circumstances relied upon by plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits."). It is simply not appropriate for the Court to weigh the facts and evidence to resolve underdeveloped issues between the parties at this stage in the proceedings. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). Instead, guided by the rule that amendments pursuant to Rule 15(a) are freely granted, the Court's sole function now is to determine whether Plaintiff has provided a plausible basis for liability if its version of the facts is assumed to be true. Castleglenn, Inc., 984 F.2d at 1586. Therefore, the Court is inclined to allow Plaintiff to further amend her complaint and leave the question of whether she is entitled to relief against Defendant to be decided on a fully-briefed dispositive motion, if any, or at trial.
Defendant next argues that Plaintiff filed the Motion with a bad faith or dilatory motive. See Response [#38] at 5-10. Defendant asserts that "[i]t is obvious that Plaintiff filed her proposed amendments as a way to prolong the proceedings and avoid responding to Defendant's motions to dismiss. This is not a proper basis for amendment, and thus, the Court should deny Plaintiff's motion, and dismiss all of Plaintiff's complaints with prejudice." Id. at 5.
In reviewing the procedural history outlined above, the Court acknowledges that there is some support for the view that Plaintiff's repeated amendments have been used as a delay tactic to avoid responding to Defendant's Motions to Dismiss [#8, #19]. Nevertheless, given that Plaintiff filed the Motion [#31] well-before the deadline to amend pleadings, given that she seeks to withdraw certain claims which limits the scope of this litigation, and given that leave to amend should be freely given when justice so requires, the Court declines to ascribe a bad faith motive to Plaintiff's Motion [#31] this early in the proceedings. See 6 Charles Alan Wright et al., Federal Practice and Procedure § 1474 (2d ed.1990) (noting that "the most common use of Rule 15(a) is by a party seeking to amend in order to cure a defective pleading").
Finally, the Court reiterates that prejudice to Defendant is the most important factor in considering whether Plaintiff should be permitted to amend her pleading. Minter, 451 F.3d at 1207. As previously stated, "[c]ourts typically find prejudice only when the [proposed] amendment unfairly affects the defendants in terms of preparing their defense to [claims asserted in the] amendment." Id. (quotation omitted). In this case, the Court finds that Defendant has not argued or established that allowing Plaintiff to file her Second Amended Complaint [#32] will unfairly impact Defendant's ability to defend against the new facts asserted in the proposed complaint. See Carskadon v. Diva Int'l, Inc., No. 12-cv-01886-RM-KMT, 2013 WL 1876784, at *3 (D. Colo. May 3, 2013) ("[T]he mere fact that a defendant's motion to dismiss may be rendered moot if leave to amend is granted ordinarily is not sufficient to establish undue prejudice.").
For the foregoing reasons, and considering that leave to amend should be freely given, the Court respectfully
IT IS FURTHER
IT IS HEREBY
IT IS FURTHER
