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Cottrell v. Greenwell

United States District Court, W.D. Kentucky, Louisville Division

March 18, 2019



          Rebecca Grady Jennings, Judge

         Plaintiff 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 33].


         John 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.

         Meanwhile, 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 off.” Id.

         Cottrell 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.


         I. Cottrell's Motion for Leave to File an Amended Complaint

         Cottrell 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].

         “Seeking 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.

         Cottrell 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.

         II. Defendants' Motion to Dismiss

         A. Legal Standard

         First, 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).

         To 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).

         B. Ky. Rev. Stat. § 61.102

         Defendants 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 disclosure.

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 ΒΆΒΆ ...

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