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Supinger v. Commonwealth of Virginia Department of Motor Vehicles

United States District Court, W.D. Virginia, Lynchburg Division

June 2, 2016

ROBERT E. LEE SUPINGER, JR., Plaintiff,
v.
COMMONWEALTH OF VIRGINIA DEPARTMENT OF MOTOR VEHICLES, et al., Defendants.

          REPORT AND RECOMMENDATION

          Robert S. Ballou United States Magistrate Judge

         This matter is before the court on Plaintiff’s motion for leave to file a second amended complaint. Dkt. No. 91. Defendants oppose Plaintiff’s motion. Dkt. 93. The matter has been referred to me for report and recommendation under 28 U.S.C. § 636(b)(1)(B). I have considered the parties’ briefs, oral arguments, and the applicable law. I RECOMMEND DENYING IN PART Plaintiff’s motion to amend his complaint.

         Background

         The facts surrounding Plaintiff’s claims are recounted in detail in Judge Moon’s memorandum opinion issued on March 2, 2016. See Dkt. No. 81. Briefly summarized, Plaintiff alleges that Defendants’ treatment of him during his employment at DMV was unlawfully discriminatory, retaliatory, and in violation of multiple federal and state statutes. Defendants previously moved to dismiss Plaintiff’s complaint under Rule 12(b)(6) and Judge Moon granted the motion in part. Judge Moon dismissed Plaintiff’s claims regarding Title VII sex discrimination, Title VII retaliation (in part), violation of Plaintiff’s First Amendment rights, and a violation of Virginia Code § 40.1-51.2:1. Plaintiff has now filed a proposed amended complaint that he contends includes facts to sufficiently support these four claims. Defendants oppose Plaintiff’s motion to amend and argue that the motion to amend should be denied because allowing the amendments would be prejudicial and futile.

         Standard of Review

         Rule 15(a) of the Federal Rules of Civil Procedure states that a plaintiff who has previously amended his complaint may do so again only with the consent of the opposing party or with the court’s permission. See Fed.R.Civ.P. 15(a)(2).[1] “The court should freely give leave when justice so requires.” Id. “[L]eave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.’” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). “[W]hile the trial court is given discretion to deny amendment, that discretion is limited by the interpretation given Rule 15 in Foman, ‘and by the general policy embodied in the Federal Rules favoring resolution of cases on their merits.’” Island Creek Coal Co. v. Lake Shore, Inc., 832 F.2d 274, 279 (4th Cir. 1987) (quoting Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980)); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that “[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits” and that absent circumstances indicating undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice, or futility, leave to amend should be freely given). Defendants claim that allowing Plaintiff to amend his complaint would be prejudicial and futile; those arguments will be addressed in turn.

         Analysis

         a. Prejudice

         Defendants’ argument that Plaintiff’s amendment would be prejudicial is two-fold: Defendants object to the timing of the motion to amend (which was filed the day before Plaintiff’s deposition, thus giving Defendants inadequate time to prepare for the deposition) and argue that it is prejudicial because it raises new legal theories on which Defendants were not prepared to depose Plaintiff. Defs.’ Br. at 6-7. However, Plaintiff’s proposed amended complaint does not, as Defendants suggest, raise completely novel and/or complex legal issues. All of the claims Plaintiff seeks to revive by amendment were already known to Defendants when they briefed and argued their motion to dismiss these claims in early 2016.

         Defendants also argue that Plaintiff could have filed his motion to amend “well in advance of his deposition” and that their “inability to question Supinger on [the amended] topics will unduly prejudice their ability to defend themselves.” Id. at 7. However, Plaintiff’s new counsel Dated this case on January 27. Dkt. Nos. 72, 73. The district court entered its opinion granting the motion to dismiss in part on March 2. Dkt. No 81. Plaintiff filed his motion to amend (along with the proposed amended complaint) on April 4. Dkt. No 91. A gap of less than thirty days is neither undue nor prejudicial to Defendants when discovery closes on September 7, 2016 and trial begins on December 6, 2016. This timeline and proposed amendments are not examples of a “‘new legal theory that would require the gathering and analysis of facts not already considered by the [defendant, that] is offered shortly before or during trial’” that might be considered an unduly prejudicial amendment. Laber, 438 F.3d at 427 (quoting Johnson, 785 F.2d at 509). All of the claims Plaintiff seeks to amend were included in the complaint that was the subject of the motion to dismiss. The new facts included in the proposed amended complaint are not particularly voluminous or complex, and Defendants have ample time to depose Plaintiff again, should that prove necessary. I find that there is no undue delay in Plaintiff’s filing of the motion to amend and that the amendments, if granted, would not unduly prejudice Defendants.

         b. Futility

         “A motion to amend is futile where, inter alia, the amended pleading would not survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Brown v. Winman, 2016 WL 868193, at *1 (E.D. N.C. Mar. 7, 2016) (citing Perkins v. United States, 848 F.Supp. 1236, 1241 (S.D. W.Va. 1994)); see also Wootten v. Commonwealth, No. 6:14cv00013, 2015 WL 1943274, at *2 (W.D. Va. Apr. 29, 2015) (holding that a court should deny a motion to amend as futile if the amended complaint could not survive a motion to dismiss for failure to state a claim).

         i. Title VII Sex Discrimination

         Generally, to prevail on a Title VII sex discrimination claim, a plaintiff must prove that (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he was performing his job duties at a level that met the employer’s legitimate expectations at the time of that adverse employment action; and (4) that his position was filled by someone outside of the plaintiff’s protected class. Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005). Judge Moon dismissed Plaintiff’s claim for Title VII sex discrimination because his transfer to the Fuel Tax Enforcement Division (“FTED”) was not an adequate adverse employment action for purposes of Title VII. See Dkt. No. 81, 10-11. Judge Moon specifically considered Plaintiff’s allegations that a transfer to the FTED would impact Plaintiff by causing him to lose his opportunity for advancement at DMV, that it would require extensive travel and substantial work outside of normal business hours, and that the transfer would place Plaintiff under the supervision of Special Agent in Charge (“SAC”) William Bralley, who had a close business and personal relationship to PST Jennifer Dawson. Id. at 10. Judge Moon granted the motion to dismiss because Plaintiff failed to plead with any specificity how the transfer would deny him opportunity for promotion, because a requirement to travel and work outside of normal business hours were not outside of Plaintiff’s required job duties before the transfer, and because he failed to articulate why working under Bralley would be a significant detriment. Id. at 10-11.

         In his proposed amended complaint, Plaintiff has added the following facts: the transfer would require him to relocate to Hampton, a city more than three hours away from Lynchburg (Prop. Am. Compl. ¶ 70); that when Bralley became Plaintiff’s supervisor, he “removed Supinger’s authority as a supervisor; in effect demoting Supinger to a special agent” (Prop. Am. Compl. ¶ 76); that Bralley hired Dawson because he had a sexual relationship with her (Prop. Am. Compl. ¶ 75)[2]; and that Bralley ‚Äúroutinely ...


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