United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, Judge
John Cottrell brings this action against Defendants Bullitt
County, Kentucky, and Bullitt County Sheriff Dave Greenwell
seeking relief under 42 U.S.C. § 1983 and alleging
violations of the Family Medical Leave Act, 29 U.S.C. §
2601 et seq. (“FMLA”), and various Kentucky laws.
[DE 1-1, Compl.]. Defendants now move to dismiss the §
1983 claim and two of the state-law claims under Federal Rule
of Civil Procedure 12(b)(6). [DE 10]. Defendants also move
for summary judgment on the FMLA and remaining state-law
claims. [DE 11]. Defendants filed a timely Response to both
Motions [DE 24], and Cottrell filed a timely Reply [DE 25].
Finally, Cottrell moves for leave to file an amended
complaint [DE 23], to extend the time to complete discovery
[DE 32], and for leave to file a second amended complaint [DE
33]. Defendants filed timely Responses [DE 27; DE 34; DE 35],
and Cottrell elected not to file any replies. Briefing is
complete, and the motions are ripe. For the reasons below,
the Court DENIES Defendants' Motion to Dismiss [DE 10];
GRANTS Defendants' Motion for Summary Judgment [DE 11];
DENIES Cottrell's Motion for Leave to File an Amended
Complaint [DE 23]; DENIES Cottrell's Motion for Extension
of Time to Complete Discovery [DE 32]; and DENIES
Cottrell's Motion to File Second Amended Complaint [DE
Cottrell is the former Chief Deputy of the Bullitt County
Sheriff's Department. [DE 1-1 at ¶ 1]. Cottrell
served under Sheriff Dave Greenwell. Id. at ¶
2. During his employment, Cottrell began investigating
suspected criminal activity by Greenwell. Id. at
¶ 11. Over the course of a two-year investigation,
Cottrell reported his findings to law-enforcement agencies,
including the United States Attorney's Office.
Id. at ¶ 13. Greenwell allegedly learned of
this investigation and tried to deter Cottrell's efforts.
Id. at ¶¶ 14-23.
Cottrell injured his knee at work. Id. at
¶¶ 25-26. Cottrell notified Greenwell of the
injury. [DE 24-2 at 343]. Cottrell sought medical attention
and was restricted to desk duty. Id. at 344.
Cottrell relayed this information to Greenwell and the
Department's office manager, Myrtle French. Id.
Cottrell told French that he intended to file a workers'
compensation claim. Id. at 356. Cottrell also asked
Greenwell if he should return to the office for desk work or
take accrued sick time. Id. at 344. Greenwell
allegedly responded “[f]ine. You can just take
later received a letter from Greenwell stating that Cottrell
was terminated for absence without leave. [DE 1-1 at ¶
34]. Cottrell alleges that Defendants' proffered reason
for firing him-failure to report for duty-was mere pretext.
Id. at ¶ 35. Cottrell claims that Greenwell
terminated him for his whistleblowing activities, in
violation of Ky. Rev. Stat. § 61.101 et seq.
Id. at ¶¶ 6-23. Cottrell also alleges that
he was terminated because of his intention to file a
workers' compensation claim, in violation of Ky. Rev.
Stat. § 342.197; his disability or perceived disability,
in violation of Ky. Rev. Stat. § 344.010 et seq.; and
his intention to take FMLA leave. Id. at
¶¶ 24-57. Cottrell contends that his termination
was without the due process owed to him under Kentucky's
Police Officer Bill of Rights, Ky. Rev. Stat § 15.520,
and the Fourteenth Amendment to the United States
Constitution. Id. at ¶¶ 58-76. Cottrell
seeks relief under 42 U.S.C. § 1983 for the alleged
constitutional violation. Id.
Cottrell's Motion for Leave to File an Amended Complaint
moved to hold the case in abeyance. [DE 13]. Cottrell argued
that a stay was necessary because his failure to provide
detailed information about his claim under Ky. Rev. Stat.
§ 61.101 et seq. was attributable to Federal Rule of
Criminal Procedure 6(e). Rule 6(e) lists certain persons who
are barred from disclosing confidential matters occurring
before a grand jury. Id. at 209. In a November 21,
2017 order, the Court denied Cottrell's Motion, reasoning
that “Rule 6(e) does not reach as broadly as Cottrell
claim[ed].” [DE 18 at 281]. The Court ordered Cottrell
to respond to Defendants' pending motions. Id.
at 281-82. Cottrell has now responded. [DE 24]. However,
Cottrell has also moved for leave to file an amended
complaint, in which he seeks to add significant factual
detail and a claim under Kentucky's wage-and-hour law,
Ky. Rev. Stat § 337 et seq. [DE 23]. Defendants argue
that Cottrell's Motion is untimely under the Court's
Scheduling Order, which instructs that “[a]ny motion to
amend pleadings or motion to join additional parties shall be
filed no later than June 15, 2017.” [DE 27 at 471,
citing DE 9 at 46].
leave to amend a complaint after the scheduling order's
deadline implicates two Federal Rules of Civil Procedure,
Rule 15 and Rule 16.” Carrizo (Utica) LLC v. City
of Girard, Ohio, 661 Fed.Appx. 364, 367 (6th Cir. 2016).
Rule 15 provides that a plaintiff may amend his pleading with
leave of the court and that leave should be freely given
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). Rule 16 states that a district court can modify its
scheduling order “only for good cause.”
Id. at 16(b)(4). Thus, “a party seeking leave
to amend after the scheduling order's deadline must meet
Rule 16's good-cause standard in order for the [Court] to
amend the scheduling order.” Carrizo, 661 Fed.Appx. at
367 (citing Leary v. Daeschner, 349 F.3d 888, 909
(6th Cir. 2003)). This requires the plaintiff to establish
that “despite [his] diligence [he] could not meet the
original deadline.” Leary, 349 F.3d at 907. As part of
this inquiry, prejudice to the defendant is a “relevant
consideration.” Id. at 906.
fails to support his Motion with any arguments. This alone
justifies denial of his Motion. See Banks v. Bosch
Rexroth Corp., No. 5:12-345-DCR, 2014 WL 868118, at *8
(E.D. Ky. Mar. 5, 2014) (“Without more than an argument
to general principles of fairness and no mention of good
cause, this request fails the requirements of Rule
16(b).”). The Court has already denied Cottrell's
motion to hold the case in abeyance. [DE 18]. Cottrell fails
to show why he did not file his first Motion to Amend until
January 12, 2018-nearly two months following the Court's
Order. [DE 23]. Defendants have also shown that prejudice
would result from allowing Cottrell to amend at this stage of
the litigation. [DE 27 at 472]. Cottrell's Motion for
Leave to File a Second Amended Complaint [DE 33] suffers from
similar infirmities. For these reasons, Cottrell's
Motions [DN 23; DN 33] are denied.
Defendants' Motion to Dismiss
Defendants move to dismiss Cottrell's § 1983 claim
and two of his state-law claims under Federal Rule of Civil
Procedure 12(b)(6). Rule 12(b)(6) instructs that a court must
dismiss a complaint if the complaint “fail[s] to state
a claim upon which relief can be granted[.]”
Fed.R.Civ.P. 12(b)(6). To state a claim properly, a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). When considering a motion to dismiss,
courts must presume all factual allegations in the complaint
to be true and make all reasonable inferences in favor of the
non-moving party. Total Benefits Planning Agency, Inc. v.
Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434
(6th Cir. 2008) (citation omitted). “But the district
court need not accept a bare assertion of legal
conclusions.” Tackett v. M & G Polymers, USA,
LLC, 561 F.3d 478, 488 (6th Cir. 2009) (internal
quotation marks and citation omitted). “A pleading that
offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertion[s] devoid of
further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citation omitted).
survive a motion to dismiss, a plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 556). “A
complaint will be dismissed . . . if no law supports the
claim made, if the facts alleged are insufficient to state a
claim, or if the face of the complaint presents an
insurmountable bar to relief.” Southfield Educ.
Ass'n v. Southfield Bd. of Educ., 570 Fed.Appx. 485,
487 (6th Cir. 2014) (citing Twombly, 550 U.S. at 561-64).
Rev. Stat. § 61.102
argue that Cottrell's claim under Kentucky's
Whistleblower Act, Ky. Rev. Stat. § 61.102, fails to
satisfy federal pleading standards. [DE 11-1 at 245-46]. To
state a claim under the Kentucky Whistleblower Act, Cottrell
must plausibly allege four elements:
(1) the employer is an officer of the state; (2) the employee
is employed by the state; (3) the employee made or attempted
to make a good faith report or disclosure of a suspected
violation of state or local law to an appropriate body or
authority; and (4) the employer took action or threatened to
take action to discourage the employee from making such a
disclosure or to punish the employee for making such a
Davidson v. Ky. Dep't of Military Affairs, 152
S.W.3d 247, 251 (Ky. Ct. App. 2004); see also Ky. Rev. Stat.
§ 61.102(1). Cottrell alleges that he was an employee of
the Commonwealth and that Greenwell is an officer of the
Commonwealth. [DE 1-1 at ¶¶ 1-2]. Cottrell asserts
that he reported Greenwell's “involve[ment] in
serious criminal activity” to “law enforcement
agencies, employees and agents of law enforcement agencies
and to ‘appropriate authorities, '” and that
he was consequently terminated. Id. at ¶¶