United States District Court, E.D. Kentucky, Southern Division, Pikeville
Nicholas C.A. Vaughn, Law Office of Nick Vaughn, Somerset, KY, for Plaintiff.
Jonathan C. Shaw, Porter, Schmitt, Banks & Baldwin, Paintsville, KY, for Defendant.
MEMORANDUM OPINION AND ORDER
AMUL R. THAPAR, District Judge.
The plaintiff has filed a motion for leave to amend his complaint. R. 17. The changes in his amended complaint are meant to salvage the claims that the Court dismissed on statute of limitations grounds in its earlier Memorandum Opinion and Order. Id. at 1-2; see also R. 11 at 7-11 (dismissing Click's damages claims for alleged adverse employment actions in 2009 and 2011 because the statute of limitations had run). Because the plaintiff's proposed amendment salvages his time-barred claims, the Court will grant the motion.
Plaintiff Oberdeen Click's original complaint accused the defendant, Randy Thompson, of firing Click from his civil service job in 2009 and then refusing to rehire Click in 2011 and 2012. R. 1 at 4-5 ¶¶ 14-16. The complaint claims that Thompson, a Republican, did so because Click supported Democratic candidates in local elections. See id. If true, Thompson's actions violated Click's First Amendment rights. See R. 11 at 3-7 (citing, inter alia, Rutan v. Republican Party of Ill., 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)).
Thompson filed a motion to dismiss which argued that Click's § 1983 claims were barred by the governing statute of limitations. R. 5. This Court granted the motion with respect to the § 1983 claims based on the alleged incidents in 2009 and 2011. It denied the motion with respect to the § 1983 claims based on the alleged 2012 incident and Click's state-law claims. See R. 11 at 11. Click has now filed a motion for leave to file an amended complaint. R. 17. His proposed amendment seeks to salvage his § 1983 claims based on the 2009 and 2011 incidents. Id. at 1-2. Thompson opposes the motion. R. 18.
Click moves to amend his complaint under Federal Rule of Civil Procedure 15. R. 17 at 2. Click requests leave to amend 315 days after filing his original complaint, 176 days after Thompson filed his motion to dismiss, and 100 days after Thompson filed his responsive pleading. Compare R. 17 (filed Feb. 1, 2013), with R. 1 (filed March 23, 2012), and R. 5 (filed Aug. 9, 2012), and R. 12 (filed Oct. 24, 2012). So the window for amending his complaint as a matter of course has closed. See Fed.R.Civ.P. 15(a)(1)(A), (B) (establishing window in which plaintiffs may amend as of right). Click may now amend his complaint only with Thompson's written consent or the Court's permission. Fed.R.Civ.P. 15(a)(2). Since Thompson opposes the motion, R. 18, the Court must consider whether justice requires that leave be granted. See Fed.R.Civ.P. 15(a)(2).
Rule 15(a)(2) favors granting leave to amend to allow a plaintiff " an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Thompson does not claim that Click's motion was filed with improper motives, would result in undue delay, or would prejudice the defendant. See R. 18; see also Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995) (" A motion to amend a complaint should be denied if the amendment is brought in bad faith, for dilatory purposes, [or] results in undue delay or prejudice to the opposing party ...." (citation omitted)). And the Court's own review of the record reveals no reason to deny the amendment on equitable grounds. However, the Court may still deny the motion if the proposed amendment does not correct the complaint's fatal flaws. See Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir.2006) (" A district court may deny a plaintiff leave to amend his or her complaint, however, when the proposed amendment would be futile." (citing Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir.2003))). The controlling issue, therefore, is whether the proposed amendment would rescue Click's claims based on the 2009 and 2011 incidents.
Since both the 2009 and 2011 incidents fall outside the one-year statute of limitations for Click's § 1983 suit, his only means to bring claims based on those incidents is the continuing-violation doctrine. See R. 11 at 7-10; see also Sharpe v. Cureton, 319 F.3d 259, 266-67 (6th Cir.2003) (explaining that the doctrine allows plaintiffs in Title VII and § 1983 actions to
have the court consider allegations that would otherwise be barred by the statute of limitations). There are two distinct categories of continuing violations. See Sharpe, 319 F.3d at 266-67. The first category arises with allegations of " prior discriminatory activity that continues into the present." Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir.2003). The paradigmatic example is a hostile work environment claim, where the cumulative effect of the acts manifests over time and not at one particular moment. See Baar v. Jefferson Cnty. Bd. of Educ., 311 Fed.Appx. 817, 824 (6th Cir.2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). The second category arises where the plaintiff can establish " a long-standing and demonstrable policy of discrimination." Bur ...