BERYL A. HOWELL, United States District Judge.
The plaintiff, Kenneth Barnes, commenced this action in the Superior Court for the District of Columbia ("D.C. Superior Court"), against his former employer, the District of Columbia, claiming that the defendant's Department of Youth Rehabilitation Services ("DYRS") engaged in conduct that violated Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq., the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 1201 et seq., and other local statutory and common laws. See generally Compl., ECF No. 1-2. Following removal to this Court, the defendant moved to dismiss, and the plaintiff moved to amend, the complaint. See Def.'s Mot. Partially Dismiss Pl.'s Compl. & Partial Summ. J. ("Def.'s Mot. Dismiss"), ECF No. 4; Pl.'s Consol. Mot. Leave File Am. Compl. & Remand Action ("Pl.'s Mot."), ECF No. 5. The plaintiff also seeks remand of the case to D.C. Superior Court, if the requested leave to amend is granted. Pl.'s Mot. at 2. For the reasons set out below, the plaintiff's motion to amend and remand is granted and his federal claims are dismissed with prejudice.
According to the complaint, the plaintiff worked as a Program Support Specialist at DYRS from January 2012 until "the loss of his job," on an unspecified date. Compl. ¶¶ 9, 75. 95, 105. He initiated this suit alleging in seven claims that the DYRS failed to accommodate his disability (i.e., legal blindness) in violation of the ADA, Compl. ¶¶ 66-76 ("Count I"), and the District of Columbia Human Rights Act of 1977 ("DCHRA"), D.C. Code §§ 2-1401.01 et seq., Compl. ¶¶ 86-96 ("Count III"); discriminated against him on account of his disability, in violation of the ADA, Compl. ¶¶ 77-85 ("Count II"), and the DCHRA, Compl. ¶¶ 97-106 ("Count IV"); created a hostile work environment in violation of Title VII, Compl. ¶¶ 107-110 ("Count V"); retaliated against him for protesting DYRS' failure to accommodate him in violation of Title VII, Compl. ¶¶ 111-117 ("Count VI"); and retaliated against him for making disclosures about DYRS' operations, in violation of the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq., Compl. ¶¶ 118-124 ("Count VII").
Following removal of this case to this Court, pursuant to 28 U.S.C. § 1331, the defendant moved to dismiss all seven counts of the plaintiff's complaint or, alternatively, for partial summary judgment on Counts I-III and VI-VII. See Def.'s Mot. Dismiss at 12. The plaintiff submitted no opposition to the defendant's motion but, instead, fifty-one days after the filing of the defendant's motion to dismiss and over a month after the deadline for filing any opposition, moved for leave to amend his complaint to remove all causes of action arising under federal law and to remand the remaining claims arising under local statutory or common law to D.C. Superior Court. See Pl.'s Mot. In response, the defendant has consented to the plaintiff's
In light of the dispute between the parties as to whether the federal claims should be dismissed with prejudice, particularly in the context of the plaintiff's failure to file any timely opposition to the defendant's motion to dismiss, the Court directed the plaintiff to show cause why the defendant's motion to dismiss should not be granted as conceded, and why the plaintiff's motion to amend the complaint should not be granted on the condition that the withdrawn federal claims are dismissed with prejudice. See May 6, 2014 Minute Order. The plaintiff filed a timely response to the Court's Minute Order urging that the Court "can and should" resolve the plaintiff's motion to amend before resolving the defendant's motion to dismiss despite the untimely filing of the motion to amend. Pl.'s Resp. Order Show Cause ("Pl.'s Resp. OTSC") at 3, ECF No. 9. The plaintiff further indicated that although he "does not anticipate bringing his federal claims a second time before the District of Columbia Superior Court," he nevertheless "should not be foreclosed from re-alleging federal violations should discovery warrant." Id.
The defendant's pending motion to dismiss, with prejudice, the federal claims and the plaintiff's pending consolidated motions to amend the complaint and remand the action are now ripe for resolution.
Federal Rule of Civil Procedure 15 provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." FED. R. CIV. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave," which "[t]he court should freely give [ ] when justice so requires." FED. R. CIV. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ("Rule 15(a) declares that leave to amend `shall be freely given when justice so requires.'"); Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C.Cir.1996), cert. denied, 520 U.S. 1197, 117 S.Ct. 1553, 137 L.Ed.2d 701 (1997) (holding that "leave to amend should be freely given unless there is a good reason, such as futility, to the contrary"); Norris v. Salazar, 885 F.Supp.2d 402, 414 (D.D.C.2012), aff'd, No. 12-5288, 2013 WL 1733645 (D.C.Cir. Apr. 10, 2013).
A complaint is a pleading to which a responsive pleading is required. FED. R. CIV. P. 7(a)(2). Thus, under Rule 15(a)(1)(B), the plaintiff has an absolute right to amend the complaint at any time from the moment the complaint is filed until 21 days after the earlier of the filing of a responsive pleading or a motion under Rule 12(b), (e), or (f). Villery v. District of Columbia, 277 F.R.D. 218, 219 (D.D.C. 2011); Stone v. Dewey, No. 10-159, 2011 U.S. Dist. LEXIS 76249, 2011 WL 2784595, at *6 (N.D.Fla. July 14, 2011).
After 21 days have passed from the filing of an answer or motion for dismissal under Rule 12(b), (e), or (f), the plaintiff is required to either obtain the consent of the opposing party or seek the permission of the district court to amend the complaint to remove certain claims. FED. R. CIV. P. 15(a)(2). The Supreme Court has provided guidance to district courts on applying the standard set out in this Rule for granting leave to amend, stating that
Foman, 371 U.S. at 182, 83 S.Ct. 227.
Upon consideration of these factors, such as "undue delay, bad faith or dilatory motive on the part of the movant," the Court may, in its discretion, grant the plaintiff leave to amend subject to a specified condition. "The statement in Rule 15(a)(2) that the court `should freely give leave when justice so requires' presupposes that the court may use its discretion to impose conditions on the allowance of a proposed amendment as an appropriate means of balancing the interests of the party seeking the amendment and those of the party objecting to it." 6 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE: CIVIL § 1486 at 693 (3d ed.2010). Indeed, "[t]he imposition of terms often will further the rule's liberal amendment policy." Id. Thus, under Rule 15, "numerous courts have concluded that [Rule 15(a)] gives them authority to impose conditions when permission to amend is allowed." Id. at 691; see also Predator Int'l, Inc. v. Gamo Outdoor USA, Inc., No. 09-00970, 2010 WL 3630118, at *5 (D.Colo. Sept. 9, 2010) (collecting cases); In re QMect, Inc., 349 B.R. 620, 623 (Bankr.N.D.Cal.2006) (citing Int'l Ass'n of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1391 (9th Cir.1985)); In re: Orthopedic Bone Screw Prods. Liab. Litig., No. MDL 1014, 1998 WL 633680, at *2 (E.D.Pa. Aug. 14, 1998) aff'd sub nom. In re Orthopedic Bone Screw Prods. Liab.
The plaintiff contends that, despite having failed to file a timely opposition to the defendant's motion to dismiss or for partial summary judgment, this motion should be denied as moot, in light of the plaintiff's subsequently filed motion to amend the complaint removing all federal law claims, and to remand the case to D.C. Superior Court. Pl.'s Mot. at 1-3. The defendant, on the other hand, seeks to have its motion granted with prejudice as to the plaintiff's federal claims, indicating that it is "not opposed to allowing the amendment" to the complaint, so long as the plaintiff's federal claims are dismissed with prejudice. See Def.'s Opp'n at 2. According to the defendant, absent dismissal with prejudice, upon remand, the plaintiff would seek leave to amend his complaint to re-assert his federal claims, resulting in "an unnecessary waste of judicial resources" and "unfairness" to the defendant. Id. In light of the parties' dispute over the finality of the dismissal of the plaintiff's federal claims, the Court first addresses the defendant's motion to dismiss before turning to the plaintiff's consolidated motions for leave to amend and remand.
The plaintiff does not dispute that he filed no timely opposition to the defendant's motion to dismiss or for partial summary judgment. See generally Pl.'s Resp. OTSC; see also LCvR 7(b) (requiring service of opposition memorandum of points and authorities "[w]ithin 14 days of the date of service" of the moving papers). If such opposition is not timely filed, "the Court may treat the motion as conceded." LCvR 7(b). Local Civil Rule 7(b) is a "docket-management tool that facilitates efficient and effective resolution of motions by requiring the prompt joining of issues." Fox v. American Airlines, Inc., 389 F.3d 1291, 1294 (D.C.Cir.2004) (affirming district court's grant of motion to dismiss as conceded where opposition was not timely filed); see F.D.I.C. v. Bender, 127 F.3d 58, 67 (D.C.Cir.1997) (such rule is necessary for "maintain[ing] docket control and . . . decid[ing] motions for summary judgment efficiently and effectively." (quoting Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C.Cir.1996))). As this Court has recognized, "[w]hether to treat [a] motion as conceded under Local Rule of Civil Procedure 7(b) is highly discretionary." See Kyung Sung Sch. of Oriental Med. v. Nat'l Certification Comm'n for Acupuncture & Oriental Med., No. 10-1709, 2010 WL 5476689, at *1 (D.D.C. Dec. 30, 2010). "Where the district court relies on the absence of a response as a basis for treating the motion as conceded, [the D.C. Circuit will] honor its enforcement of the rule." Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C.Cir. 1997). A straight-forward application of Local Civil Rule 7(b) in this case would result in granting the motion to dismiss as conceded.
The plaintiff protests that the Court need not deem a motion to dismiss conceded when the plaintiff files a motion to amend out-of-time, and, further, that
The plaintiff contends that the Court should nevertheless first resolve his untimely motion to amend, Pl.'s Resp. OTSC at 1-2, citing as support Dover v. Medstar Wash. Hosp. Ctr., Inc., No. 13-670, 989 F.Supp.2d 57, 60, 2013 WL 5824075, at *1, 4 n. 2 (D.D.C.2013), where another Judge on this Court granted the plaintiff's motion to amend, even though that motion had been untimely filed in opposition to a then-pending motion to dismiss, and denied the
By contrast to Dover, here the plaintiff has indicated that he may seek to re-assert his federal claims in D.C. Superior Court. See Pl.'s Resp. OTSC at 3 ("Plaintiff should not be foreclosed from re-alleging federal violations should discovery warrant"); Pl.'s Suppl. Br. at 1 (arguing that the Court need not "dismiss[ ] Plaintiff's federal claims with prejudice" because "[i]t is bedrock federal law that the Superior Court for the District of Columbia has concurrent jurisdiction to hear cases arising out of both Title VII" and the ADA). This raises serious questions of fairness and judicial economy, which were not raised or addressed in the Dover decision. Accord Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (finding that courts may "consider whether the plaintiff has engaged in any manipulative tactics when it decides whether to remand a case" and "should take this behavior into account"); Foman, 371 U.S. at 182, 83 S.Ct. 227 (instructing courts to consider "bad faith or dilatory motive" and "undue prejudice to the opposing party" in deciding whether to grant leave to amend). Indeed, as other courts have noted, "[i]f a state forum is more important to the plaintiff than his federal claims, he should have to make that assessment before the case is jockeyed from state court to federal court and back to state court." Payne v. Parkchester N. Condos., 134 F.Supp.2d 582, 584 (S.D.N.Y.2001). Such tactical maneuvering is not only "a drain on the resources of the state judiciary, the federal judiciary and the parties involved," Austwick v. Bd. of Educ., 555 F.Supp. 840, 842 (N.D.Ill. 1983), but undermines "the jurisdictional choice that Congress intended to afford a defendant in the removal statute." Payne, 134 F.Supp.2d at 585. Indeed, due to concern that a plaintiff will simply re-assert federal claims upon remand to state court, other courts have denied the plaintiff's motion for leave to amend the complaint. See, e.g., id. at 584 (collecting cases).
The Court need not, as the plaintiff contends, first consider the plaintiff's untimely motion to amend the complaint, which would then moot the need to resolve the defendant's motion to dismiss. In Ficken v. Golden, 696 F.Supp.2d 21, 35-36 (D.D.C. 2010), another Judge on this Court granted a motion to dismiss as conceded under Rule 7(b) where the plaintiffs filed no opposition, even though the plaintiffs had, on the same date that the motion to dismiss was filed, filed a motion to remand the case to D.C. Superior Court. Id. In their motion for reconsideration, the plaintiffs argued that "they reasonably believed that the court would resolve their motion for remand prior to addressing defendant['s] motion to dismiss." Id. at 35. The Court found the plaintiff's argument "without merit," id. at 37, even though, unlike the instant case, the plaintiff made timely known within the period for an opposition the outcome sought, namely, remand.
Contrary to the plaintiff's urging, the Court may first resolve the defendant's motion to dismiss. In response to the
The defendant has also indicated that it is "not opposed to allowing the amendment and remanding the remaining state law claims to D.C. Superior Court." See Def.'s Opp'n at 2. Consequently, given that the plaintiff is free to amend its pleading "with the opposing party's written consent," FED. R. CIV. P. 15(a)(2), which the defendant has provided in its opposition, Def.'s Opp'n at 2, the Court grants the plaintiff's motion to amend the complaint as consented to by the opposing party.
The issue that now confronts the Court is whether the dismissal of the federal claims under Rule 12(b)(6) should be with or without prejudice, which is the key remaining dispute between the parties. Claims dismissed with prejudice may not be refiled since "the refiling is blocked by the doctrine of res judicata.'" Franklin-Mason v. Mabus, 742 F.3d 1051, 1054 n. 2 (D.C.Cir.2014) (quoting Ciralsky v. CIA, 355 F.3d 661, 672 n. 11 (D.C.Cir.2004)). Through the operation of Federal Rule of Civil Procedure 41(b), an involuntary dismissal under Rule 12(b)(6) "operates as an adjudication on the merits," "[u]nless the dismissal order states otherwise." FED. R. CIV. P. 41(b). While the D.C. Circuit has "suggested that Rule 12(b)(6) dismissals with prejudice are disfavored," at least one D.C. Circuit Judge has questioned whether "the Rules impose such a constraint on the discretion of district courts in issuing Rule 12(b)(6) dismissals." Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 132-33 (D.C.Cir.2012) (Kavanaugh, J., concurring). Judge Kavanaugh has pointed out that "[a]ny potential unfairness that could otherwise result from this procedural framework is addressed" by the provisions in Rule 15(a) allowing the plaintiff to "amend the complaint as a matter of course within 21 days of service of the [Rule 12(b)(6)] motion to dismiss" and to seek leave "to amend a complaint even outside the time period for amending as a matter of course." Id. at 132. "In short, Rules 12(b)(6), 15, and 41(b) work in tandem to establish a fair and efficient process
The Court concludes that dismissal of the plaintiff's federal claims with prejudice is warranted. The plaintiff, as master of his complaint, included federal claims in his original complaint and, consequently, should have recognized that the defendant could exercise its statutory right of removal. The plaintiff's elimination of those federal claims in an amended complaint in order to improve consideration of the plaintiff's related motion for remand of the case to D.C. Superior Court is a legitimate tactical choice. This choice, however, begins to raise the specter of impermissible forum-shopping when the plaintiff also indicates an intention to consider reviving the federal claims upon remand. This leaves the defendant to the plaintiff's caprice in re-asserting, at some later date, federal claims that the defendant has been prepared to litigate now in this forum. It would also leave open the possibility that the defendant would have to remove this action to this Court a second time, resulting in a repetitious waste of resources and time on the part of the parties and both the state and federal courts.
Due to such concerns over preservation of judicial and parties' resources and fairness to the defendant, other courts have concluded that leave to amend a complaint may be granted on the condition that the eliminated federal claims are dismissed with prejudice. See Addamax Corp., 149 F.R.D. at 5-6 (recognizing that "[o]ne of those conditions" for a district judge to grant leave to amend the complaint "may properly be that claims contained in the original complaint but not included in the amended complaint be considered dismissed with prejudice. . . ."). In re QMect, Inc., 349 B.R. at 626 (ruling that elimination of claims in amended complaint would only be permitted if those claims were dismissed with prejudice); Jones v. Scientific Colors, Inc., No. 99-1959, 2001 WL 883689, at *2 (N.D.Ill. Aug. 6, 2001) (granting plaintiff's motion to amend complaint to withdraw claim on condition that claim be withdrawn with prejudice given no "mitigating explanation from plaintiffs. . . why the proposed withdrawal of the [claim] should be without prejudice"); In re: Orthopedic Bone Screw Prods. Liab. Litig., 1998 WL 633680, at *2 (granting plaintiff leave to amend complaint to omit certain claims and "requir[ing] that the amendment effect[ ] a voluntary dismissal with prejudice"); Etablissements Neyrpic, 175 F.Supp. at 358 (permitting plaintiffs to amend their pleadings and requiring dismissal with prejudice of the withdrawn claims).
In the plaintiff's response to the Court's show cause order, the plaintiff gave no reason why the Court should not condition grant of the plaintiff's motion to amend on dismissal of his federal claims with prejudice. See generally Pl.'s Resp. OTSC. Rather than condition the grant of the plaintiff's motion for leave to amend, the same end may be reached by dismissing the plaintiff's federal claims with prejudice.
Accordingly, the plaintiff's federal law claims arising under the ADA in Counts I-II and Title VII in Counts V-VI are dismissed with prejudice.
Given that there are no federal claims remaining in this suit, the defendant has "no interest recognized by a federal statute in a federal forum." Zuurbier v. MedStar Health, Inc., 306 F.Supp.2d 1, 7 (D.D.C.2004) (quoting Trask v. Kasenetz, 818 F.Supp. 39 (E.D.N.Y.1993)). In such circumstances, where all federal law claims are removed from the suit, the court will
For the foregoing reasons, the defendant's Motion to Dismiss is granted in part and denied in part. Specifically, the defendant's Motion to Dismiss is granted with respect to the plaintiff's federal claims, which are dismissed with prejudice, and denied in all other respects. In addition, the plaintiff's Consolidated Motion to Amend the Complaint and Remand this Action to the Superior Court of the District of Columbia is granted. An appropriate order to this effect will be entered with this Memorandum Opinion.
