United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. McKinley Jr., Chief Judge.
matter is before the Court on a motion by Defendants, Nick
Richter, Scott Market, James Caldwell, and Amanda Richter
(collectively, the “Individual Defendants”), to
dismiss the claims against them pursuant to Fed.R.Civ.P.
12(b)(6) [DN 9]; on a motion by Plaintiff, Tamatha Spencer,
to amend the complaint [DN 17]; and on a motion by Plaintiff
for leave to file a late response to the Individual
Defendants' motion to dismiss [DN 18]. Fully briefed,
these matters are ripe for decision.
Tamatha Spencer, began employment at the Sonic Drive-In in
Owensboro, Kentucky on April 4, 2016. Spencer maintains that
from May 2017 to October 30, 2017, a former store manager,
James Caldwell, sexually harassed her at work through
sexually explicit comments and unwanted touching. Spencer
contends that she reported the conduct to Nick Richter, her
area manager, who did not investigate the claim or remedy the
harassment. Spencer alleges that she was retaliated against
by Amanda Richter, a new store manager, for reporting
Caldwell's conduct through the receipt of shorter work
hours, being placed on probation, and criticism of her work.
Because of this treatment, Spencer alleges that she was
forced to resign on December 8, 2017.
November 27, 2017, Spencer filed a charge of discrimination
against Defendant, Drive- In of Evansville, Inc. (originally
named in the complaint as “Sonic Drive-In”) with
the Equal Employment Opportunity Commission
(“EEOC”) alleging claims of sex discrimination,
sexual harassment, and retaliation pursuant to Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e et seq.
On February 18, 2018, the EEOC dismissed Spencer's charge
and issued a Dismissal and Notice of Rights.
18, 2018, Plaintiff, pro se, filed a complaint in
the Daviess Circuit Court against Defendants, Sonic Drive-In,
Scott Market (incorrectly named as Scott Henderson), Nick
Richter, Amanda Richter, and James Caldwell, alleging sexual
harassment, sex discrimination, retaliation, and wrongful
termination. On June 19, 2018, the Defendants removed this
action to this Court.
26, 2018, the Individual Defendants moved to dismiss the
claims against them arguing that Title VII does not permit
individual liability. On August 30, 2018, Spencer moved to
amend her complaint pursuant to Fed.R.Civ.P. 15 to correct
“names incorrectly given and other small
corrections.” (Motion to Amend Compl. at 1.) In her
proposed amended complaint, Spencer removes as Defendants at
least three individual managers and supervisors. Spencer now
asserts a claim against the Sonic Drive-In Franchise
including in the heading of the amended complaint in
parenthesis the Drive-In of Evansville and Scott Market, the
franchise owner. On that same day, Spencer filed a motion for
leave to file a late response to the Individual
Defendants' motion to dismiss. The Court will first
address the motion to amend.
MOTION TO AMEND COMPLAINT
moves for leave to file an amended complaint pursuant to
Fed.R.Civ.P. 15(a). Spencer argues that her proposed amended
complaint will cure “errors such as names incorrectly
given and other small corrections.” (Motion to Amend
Compl. at 1.)
Civ. P. 15(a)(2) states that after a responsive pleading has
been served, “a party may amend its pleading only with
the opposing party's written consent or the court's
leave.” A district court should freely grant a
plaintiff leave to amend a pleading “when justice so
requires.” Fed.R.Civ.P. 15(a)(2). The determination of
whether the circumstances of a case are such that justice
would require the allowance of an amendment is committed to
the sound discretion of the district court. Hayden v.
Ford Motor Co., 497 F.2d 1292, 1294 (6th Cir. 1974). A
trial court may consider a number of factors in making this
determination, including undue delay, bad faith or dilatory
motive on the part of the movant, undue prejudice, futility
of the amendment, or the repeated failure to cure
deficiencies by amendments previously allowed. Foman v.
Davis, 371 U.S. 178, 182 (1962). In the absence of any
of these factors, a plaintiff should be afforded the
opportunity to amend its complaint. Id.
amended complaint removes at least three of the Individual
Defendants, Nick Richter, James Caldwell, and Amanda Richter.
With respect to Scott Market, the amended complaint appears
to suggest that Spencer intends to bring only a suit against
the Sonic Drive-In Franchise, which is legally known as
Drive-In of Evansville, Inc. and is owned by Scott Market.
However, statements in Spencer's tendered late response
to the Individual Defendants' motion to dismiss calls
that interpretation into question. (Plaintiff's Resp. at
1, DN 18-1).
the Individual Defendants argue that the Court should not
grant Plaintiff's leave to file her amended complaint
because her amended complaint fails to correct the fatal
defects in her original complaint. They maintain that the
amendment of the complaint is futile. “A proposed
amendment is futile if the amendment could not withstand a
Rule 12(b)(6) motion to dismiss.” Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)
(internal citations omitted). The Individual Defendants
contend that similar to her original complaint,
Plaintiff's amended complaint cannot withstand a Rule
12(b)(6) motion to dismiss because she continues to name an
Individual Defendant, Scott Market, as to her Title VII
claims and Title VII does not permit individual liability.
the Court understands the Individual Defendants'
argument, the Court finds that the entire Amended Complaint
is not futile as it adds additional factual information to
support Spencer's Title VII claims and removes from the
lawsuit at least three of the four Individual Defendants. In
an effort to maintain a clear record, the Court in its
discretion will permit the amended complaint and will address
the remaining Individual Defendant's argument with
respect to Title VII liability within the context of his
motion to dismiss. Accordingly, the motion to amend is
MOTION FOR LEAVE TO ...