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Sean Thomsen v. R Carriers Shared Services

January 24, 2011


The opinion of the court was delivered by: oseph F. Bataillon Chief District Judge


This matter is before the court on the following motions: plaintiff's motion for summary judgment on his disability discrimination claims and on punitive damages, Filing No. 40; the defendant's motion for summary judgment in its favor on the plaintiff's disability discrimination claim, Filing No. 42; the plaintiff's motion to strike certain evidence in support of defendant's motion for summary judgment, Filing No. 60; the defendant's motions for leave to file an amended answer and a supplemental motion for summary judgment, Filing No. 77 and Filing No. 80; and the plaintiff's motion for leave to offer additional evidence in opposition to the defendant's motion for summary judgment, Filing No. 87.

This is an action for discrimination in employment. The plaintiff's remaining claims are for violations of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., and the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. § 48-1101 et seq.*fn1 In his amended complaint, the defendant alleges that, after terminating him in 2007 after he used leave under the Family and Medical Leave Act, the defendant refused to rehire him based on a perception of disability. Filing No. 1, Exhibit (Ex.) 2, Amended Complaint.

I. Defendant's motions for leave to file an amended answer and a supplemental motion for summary judgment

The plaintiff originally filed this action in the District Court of Douglas County, Nebraska, on October 26, 2009, and amended the complaint on November 4, 2009. See Filing No. 1, Exs. 1 & 2, Complaint and Amended Complaint. The action was removed to this court on November 25, 2009. Filing No. 1, Notice of Removal. The defendants filed an answer on December 30, 2009. Filing No. 13.

On January 13, 2010, the court set February 25, 2010, as the deadline for the defendants to file motions to amend the pleadings. Filing No. 15, Initial Progression Order. No party sought to extend the deadline. The deadline for filing motions for summary judgment was October 1, 2010. Filing No. 22, Final Progression Order. The discovery deadline expired on December 31, 2010. Id. The final pretrial conference is scheduled for February 22, 2011, with trial to follow on March 21, 2011. Id.

The defendant seeks leave to amend the answer to assert a statute of limitations defense and leave to file a supplemental motion for summary judgment on that issue. The defense is premised on the defendant's allegation that the plaintiff failed to file a charge with the EEOC within 300 days of the date he was notified that he would not be rehired by R. The defendant asserts that the plaintiff's complaint fails to allege when the plaintiff received notice of the alleged adverse action. See Filing No. 78, defendant's brief at 2. The defendant argues that it did not discover that the claims were time-barred until the plaintiff's deposition in September of 2010, and its preparation for the depositions of other witnesses in December of 2010. Id. at 2-3. The defendant contends that no additional discovery is required, the plaintiff would suffer no prejudice, and the case will not be delayed by the amendment. Id. at 3.

In opposition, the plaintiff argues that the defense is without merit. See Filing No. 82, Plaintiff's Brief at 1. Additionally, he argues that the defense, if it had merit, should have been apparent two years ago when the defendant's attorney was involved in the NEOC proceeding. Id. at 2. Finally, the plaintiff contends that he will suffer significant prejudice if the motion is granted because the discovery deadline has passed and the pretrial conference and trial are imminent. Id.

Under Fed. R. Civ. P. 16(b) a progression order schedule "may be modified only for good cause." Fed. R. Civ. P. 16(b)(4); see Bradford v. DANA Corp., 249 F.3d 807, 809-10 (8th Cir. 2001). "In demonstrating good cause, the moving party must establish that the 'scheduling deadlines cannot be met despite a party's diligent efforts.'" Thorn v. Blue Cross & Blue Shield of Fla., Inc., 192 F.R.D. 308, 309 (M.D. Fla. 2000) (citations omitted). Moreover, "if the reason for seeking the amendment is apparent before the deadline and no offsetting factors appear, the Rule 16 deadline must govern." Financial Holding Corp. v. Garnac Grain Co., 127 F.R.D. 165, 166 (W.D. Mo. 1989). In addition to the good cause requirement, "on motion made after the time has expired," the court may extend time "if the party failed to act because of excusable neglect." See Fed. R. Civ. P. 6(b)(1)(B).

Under the Federal Rules, a court should "freely give leave [to amend a pleading] when justice so requires." Fed. R. Civ. P. 15. However, denial of leave to amend is justified by "undue delay, bad faith on the part of the moving party, futility of the amendment or unfair prejudice to the opposing party." Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir. 2008) (internal quotation and citation omitted). The party opposing the amendment has the burden of demonstrating prejudice. Roberson v. Hayti Police Dep't, 241 F.3d 992, 995 (8th Cir. 2001); see Hanks v. Prachar, 457 F.3d 774, 775 (8th Cir. 2006). There is no absolute right to amend. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008). Whether to grant a motion for leave to amend is within the sound discretion of the district court. Popoalii v. Correctional Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008). As noted above, "[i]f a party files for leave to amend outside of the court's scheduling order, the party must show cause to modify the schedule." Id. Additionally, the court may consider whether the "late tendered amendments involve new theories of recovery and impose additional discovery requirements." Id.

The court finds the defendant's motions for leave to amend pleadings and to file an additional dispositive motion should be denied. The proposed amendment would be futile. The administrative deadline is not a jurisdictional limitation, but operates in the nature of a statute of limitations and is subject to equitable tolling and estoppel. See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982) (holding that administrative filing period under Title VII is subject to waiver, estoppel, and equitable tolling); Anderson v. Unisys Corp., 47 F.3d 302, 305-06 (8th Cir. 1995). In order for a party to avail itself of the statute of limitations affirmative defense, the party must specifically plead the defense in its answer, and the failure to do so normally results in a waiver of the defense. Varner v. Peterson Farms, 371 f.3d 1011, 1016 (8th Cir. 2004). When it appears on the face of a complaint that the limitation period has run, a limitations defense may properly be asserted through a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Id. The limitations period in discrimination cases begins to run when the plaintiff receives notice of an adverse employment action. Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir. 1995) (noting that the accrual date is simply the date on which the adverse employment action is communicated to the plaintiff).

The court's review of the record shows that the defendant knew or should have known of the defense at the time of the NEOC proceedings. The operative date that notice was conveyed to the defendant would have been known to the defendant at the time defense counsel appeared in the NEOC proceeding because it was the defendant who provided the notice. The defendant waived the defense by failing to raise it then. Further, the defendant had another opportunity to raise the defense at the time it responded to the complaint in this action, or in a motion to dismiss. The waiver is not excused by the plaintiff's failure to plead the date of the notice in its complaint when the defendant knew of should have known the information. Under the circumstances, the court finds that the defendant waived the limitations defense.

Further, the court finds the defendant has not shown good cause to amend the pleading. Under the present discovery and trial schedule, the filing has been unduly delayed and the defendant has not shown excusable neglect. The court further finds the plaintiff will suffer prejudice if the motion is granted. The discovery deadline has passed and the case is ready for trial. To allow an amendment of the answer and a supplemental motion for summary judgment on the eve of trial would delay the proceeding. The ...

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