United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE.
Bruce Cummings has moved to amend his complaint (DN 26).
Defendant, Tyson Chicken, Inc. opposes the motion for several
reasons (DN 30). Cummings time for filing a reply has
expired. This matter is ripe for determination.
OF THE CASE
October 4, 2017, Cummings filed the original complaint in the
Henderson Circuit Court (DN 1-2 PageID # 9-13). It sets forth
a single claim of employment discrimination on the basis of
age in violation of KRS 344.040 and the Kentucky Civil Rights
Act (Id.). The complaint indicates Tyson hired
Cummings as a deboning supervisor at its poultry production
facility in Robards, Kentucky, in December 2008
(Id.). Count I alleges in the four years that
followed Cummings, who is over forty years of age, applied
for 13 higher positions but each time Tyson gave the position
to younger less qualified candidate (Id.). Tyson
removed the case to this Court on October 30, 2017 (DN 1).
a planning meeting, pursuant to Fed.R.Civ.P. 26(f), the
parties submitted a joint discovery plan on December 14, 2017
(DN 12). After conducting a scheduling conference with
counsel on December 21, 2017, the undersigned issued the
original scheduling order (DN 16). Included therein is a
March 30, 2018 deadline for all motions to amend the
pleadings (DN 16). While subsequent orders amended certain
deadlines within the original scheduling order, the March 30,
2018 deadline never changed (DN 22, 24, 25).
than eight months after the March 30, 2018 deadline expired,
Cummings moved to amend his complaint to include a
retaliation claim (DN 26; DN 26-1 PageID # 114-115). Count II
in the proposed amended complaint alleges that Cummings was
retaliated against due to his filing this lawsuit against
Tyson; for reporting a supervisor to upper-level management;
and for the testimony that he gave and names he testified to
during his deposition (DN 26-1 PageID # 114-115). Count II
also asserts that Cummings, as an employee for Tyson,
participated in protected activity when he reported a
supervisor to Tyson's upper-level management and
rightfully filed a lawsuit against Tyson (Id.).
OF THE PARTIES
claims that the retaliation claim arises out of information
elicited during the recent depositions of four Tyson
witnesses (DN 26 PageID # 108). Cummings alleges that
multiple statements were made during the depositions that can
be used as support for his retaliation claim (Id.).
For example, Ramon Guzman-Melendez testified that his
supervisor, Michael Tilly, instructed him to write Cummings a
negative performance evaluation that Guzman-Melendez did not
believe Cummings deserved (Id.). Cummings explains
that his testimony shows the negative performance evaluation
came after Cummings reported Tilly to upper management
(Id.). Additionally, Cummings makes a general
assertion that has been treated unfairly regarding vacation
time requests since filing this action against Tyson
argues the motion should be denied as futile because because
the retaliation claim is time-barred by the Kentucky Civil
Rights Act's five-year statute of limitations (DN 30
PageID # 131-32). Tyson asserts that Count II is based on a
2012 performance evaluation that Cummings' own deposition
testimony indicates he believed was retaliatory at that time
(Id. citing Exhibit A Cummings Deposition Transcript
p. 134-137). Tyson contends that relation back under
Fed.R.Civ.P. 15(c) does not save Count II (Id.).
Alternatively, Tyson asserts that the 2012 performance
evaluation is not an adverse employment action as a matter of
law (Id. PageID # 132-33). Further, Tyson asserts
that Count II fails to meet the Iqbal/Twombly standard
because the proposed amendment offers conclusory allegations
without any supporting facts (Id. PageID # 134-35).
Tyson also points out that Cummings filed his motion several
months after the March 30, 2018 deadline in the scheduling
order and he has not attempted to satisfy the “good
cause” requirement under Fed.R.Civ.P. 16(b)
(Id. PageID # 135-37). Additionally, Tyson generally
asserts that it will be prejudiced if Cummings is allowed to
amend his complaint (Id. PageID # 138-39).
in the Sixth Circuit is well settled. Once the scheduling
order's deadline passes, a party “must first show
good cause under Rule 16(b) for failure to earlier seek leave
to amend before a court will consider whether amendment is
proper under Rule 15(a).” See Leary v.
Daeschner, 349 F.3d 888, 909 (6th Cir. 2003); Inge
v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002);
McLean v. Alere, Inc., No. 3:12-CV-566-DJH, 2015 WL
1638341, at *1 (W.D. Ky. April 13, 2015). The Sixth Circuit
has indicated “[t]he primary measure of Rule 16's
‘good cause' standard is the moving party's
diligence in attempting to meet the case management
order's requirements.” Inge, 281 F.3d at
625 (citation and internal quotations omitted); see also,
Leary, 349 F.3d at 906 (A court “may modify a
scheduling order for good cause only if a deadline cannot
reasonably be met despite the diligence of the party seeking
the extension.”). Stated differently, a party must show
that despite their diligence the deadline in the scheduling
order could not have reasonably been met. Woodcock v.
Kentucky Dept. of Corr., No. 5:12-CV-00135-GNS-LLK, 2016
WL 3676768, at *2 (W.D. Ky. July 6, 2016); Tschantz v.
McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995).
“Another relevant consideration is possible prejudice
to the party opposing the modification.” Inge, 281 F.3d
at 625 (citation omitted).
Court must first find that the moving party proceeded
diligently before considering whether the nonmoving party is
prejudiced, and only then to ascertain if there are any
additional reasons to deny the motion. Smith v. Holston
Med. Grp., P.C., 595 Fed.Appx. 474, 479 (6th Cir. 2014).
Thus, the movant who fails to show “good cause”
will not be accorded relief under Rule 16(b)(4) merely
because the opposing party will not suffer substantial
prejudice as a result of the modification of the scheduling
order. Interstate Packaging Co. v. Century Indemnity
Co., 291 F.R.D. 139, 145 (M.D. Tenn. 2013) (citing
Leary, 349 F.3d at 906, 909; Korn v. Paul Revere
Life Ins. Co., 382 Fed.Appx. 443, 449 (6th Cir. 2010)).
filed his motion more than eight months after the March 30,
2018 deadline in the scheduling order. Yet his motion is
silent on this issue (DN 26). Moreover, after Tyson raised
the issue in its opposition to the motion, Cummings remained
silent. He did not file a reply memorandum acknowledging the
issue existed and making an argument that despite his
diligence the deadline in the scheduling order could not have
reasonably been met. Further, Tyson rebutted the motion's
general assertion of recently acquired information by citing
excerpts from Cummings own deposition testimony showing he
knew about the purported retaliation before he filed the
original complaint on October 4, 2017 (DN 30-1, Exhibit A
Cummings Deposition Transcript at pages 134-38). Assuming,
arguendo, that the four Tyson witnesses deposed on October
24, 2018 provided information supporting the retaliation
claim. Cummings has not ...