Opinion
Civil No. 3:03-CV-1726-H.
February 23, 2005
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's Third Motion to Amend Complaint, filed November 1, 2004; and Defendant's Response, filed November 17, 2004. Plaintiff seeks leave to amend for the purpose of joining another party or, alternatively, "to change the named Defendant." (Pl.'s 3rd Mot. to Am. Compl., ¶¶ 5, 7.) Plaintiff states that he seeks to add as defendants "the District Judges of the Judicial District comprising Dallas County, but he is not moving to drop the name of [Dallas County Community Supervision and Corrections Department] as a proper defendant[.]" ( Id., ¶ 5.) Plaintiff alleges racial discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-e-17, by his employer. (Pl.'s 2nd Am. Compl. at 1, 4-6.) The Court previously dismissed all of Plaintiff's other claims in its Memorandum Opinion and Order, entered November 29, 2004. For the following reasons, Plaintiff's Motion to Amend Complaint is DENIED. On January 28, 2005, the parties filed an Agreed Motion for Continuance. The Court's ruling on the Agreed Motion is RESERVED pending briefing required by the Court's Briefing Order, entered February 23, 2005.
The Court construes Defendant's filing, entitled "Brief in Opposition to Plaintiff's Third Motion to Amend Complaint" as its Response, hereinafter referred to as "Brief" or "Br."
I. Background
Plaintiff Ibn Zakariya Muhammad ("Muhammad") seeks redress from alleged injury caused by his employer. (Pl.'s 2nd Am. Compl. at 2-5.) Muhammad initially named Dallas County, Texas as his employer. (Pl.'s Orig. Compl. at 1, 2.) Muhammad "believed at the time he filed his Original complaint that the proper name of Defendant was `Dallas County.' This was based in part on his check stubs and W-2s all of which indicate that Dallas County is his employer." (Pl.'s Unopposed Mot. to Am. Compl., filed Mar. 29, 2004, ¶ 6.) In its response to Muhammad's discovery requests, Dallas County informed him that although Dallas County Community Supervision and Corrections Department ("the Department") carries `Dallas County' in its name, Dallas County does not actually employ Muhammad. ( Id., ¶¶ 5-7.) Accordingly, the Court granted Muhammad's Unopposed Motion to Amend his Complaint. (Order, entered Mar. 31, 2004.) Muhammad filed his First Amended Complaint March 31, 2004. (Pl.'s 1st Am. Compl.)
Alleging retaliation for having filed an Equal Employment Opportunity Commission ("EEOC") charge on December 9, 2002 (the "discrimination charge"), Muhammad filed a second EEOC charge on April 13, 2004 (the "retaliation charge"). In both EEOC charges, "Dallas County Probation, et al." is named as respondent, i.e., Muhammad's employer. Neither the charges nor the right to sue letters issued by the EEOC name either the Department or the District Judges of the Judicial District comprising Dallas County ("the District Judges") as respondent or as Muhammad's employer. On July 14, 2004, so that he could add a retaliatory discrimination claim, Muhammad requested leave to file a second amended complaint. (Pl.'s [2nd] Mot. to Am. Compl., filed July 14, 2004.) The Court granted Muhammad leave to file a second amended complaint. (Order, entered Aug. 6, 2004.) Muhammad's Second Amended Complaint was filed August 6, 2004. (Pl.'s 2nd Am. Compl.)
On December 29, 2002 Muhammad amended his original discrimination charge, filed on November 29, 2002. (Def.'s Mot. in Opp'n to Pl.'s [2nd] Mot. to Am. Compl., App. at 5-6.)
Muhammad now seeks leave to amend his complaint a third time to join the District Judges as defendants. (Pl.'s 3rd Mot. to Am. Compl., ¶¶ 5, 7.) In the alternative, Muhammad moves to change the style of the case to change the name of the defendant to the District Judges. ( Id., ¶ 7.) Muhammad argues that the "misnomer principles" support his motion. ( Id.)
II. Legal Standard
Federal Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." See FED. R. CIV. P. 15(a); Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) ("the language of [Rule 15(a)] evinces a bias in favor of granting leave to amend."). Leave to amend, however, is within the discretion of the Court. See Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 566 (5th Cir. 2003). To deny leave to amend under Rule 15(a), there must be a substantial reason to do so. Mayeaux v. La. Health Serv. Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004); Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002). While discretion to deny leave to amend is limited, it is nevertheless extensive, allowing a court to properly manage a case. See Schiller, 342 F.3d at 566 (internal citation omitted). The Court considers a variety of factors when leave to amend is requested. See id. These factors include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." Ellis v. Liberty Life Assur. Co. of Boston, No. 03-20623, 2004 WL 2635692 at *3 (5th Cir. 2004); Foman v. Davis, 371 U.S. 178, 182 (1962); Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003).
The Court may also "consider an `unexplained delay' following an original complaint, and whether the facts underlying the amended complaint were known to the party when the original complaint was filed." In re Southmark Corp., 88 F.3d 311, 316 (5th Cir. 1996).
III. Analysis
1. Bad Faith, Dilatory Motive, Repeated Failure to Cure, and Undue Delay
A. Amendment of Pleadings
Because Muhammad's Motion came before the deadline for amending pleadings, a ruling on his Motion would be governed by Federal Rule of Civil Procedure 15(a). See SW Enter., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535-36 (5th Cir. 2003). The Court does not find and the parties do not argue that Muhammad is acting in bad faith or with dilatory motive. The balance of the remaining Ellis and Foman factors, however, weigh against granting Muhammad's Motion. Now seeking a Fourth Amended Complaint, Muhammad has had multiple opportunities to plead his case. The Court assumes that Muhammad has pled his best case and will not allow further amendment to add Defendants. See Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996); Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986); Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985).
By November 5, 2003, Muhammad was no longer proceeding pro se; he had obtained counsel some five months before filing his first amended complaint. ( See Notice of Appearance, entered Nov. 5, 2003; Pl.'s 1st Am. Compl.) Muhammad discovered on March 23, 2004, that he may be pursing the wrong defendant. (Pl.'s Unopposed Mot. to Am. Compl. ¶ 5-7.) On August 20, 2004, Muhammad was again put on notice that the Department may not be his employer under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-e-17 ("Title VII"). ( See Def.'s Mot. to Dismiss, filed Aug. 20, 2004; Def.'s Reply, filed Sept. 28, 2004.) Muhammad is still unsure of who his employer is, despite having been alerted of the potential misnomer in March 2004. Muhammad's inability to cure deficiencies through the amendments previously allowed constitutes a repeated failure.
Granting Muhammad's Motion necessarily causes undue delay despite the continuance granted. The Court has entered the Scheduling Order from which it will manage this case. (Scheduling Order, entered July 29, 2004.) Discovery closed on February 7, 2005, and would have to be reopened to prevent unfair prejudice to the District Judges. The continuance of Discovery through April 15, 2004, does little to mitigate the additional continuance that would be required upon joinder of the District Judges. Pursuant to the current Scheduling Order, trial is set to begin in less than three months. ( See id., ¶ 1.) The proposed trial setting of June 13, 2004, does not give the District Judges sufficient time to prepare. Muhammad's Motion, filed on the last day to join parties and amend pleadings ( see id., ¶ 3), effectively seeks to join the District Judges as new parties. To do so at this stage would require the lengthy process of serving notice upon all the criminal District Judges of Dallas County. Although the parties have jointly filed a motion for continuance the extensions requested therein would be insufficient for the District Judges to prepare a defense. The undue delay that will result militates against granting Muhammad's Motion. Allowing the amendment "would be an inefficient use of the parties' and the court's resources, would cause unnecessary and undue delay, and would be futile." Schiller, 342 F.3d at 566.
2. Undue Prejudice Futility of the Amendment
The Court may deny the motion if the amendment results in undue prejudice and if the amendment is futile. Ellis, 2004 WL 2635692 at *3; Foman, 371 U.S. at 182; Rosenzweig, 332 F.3d at 864. Muhammad's third amended complaint is both. While Muhammad has had overtwelve months of discovery ( see vacated Scheduling Order, entered Oct. 28, 2003), the November 1, 2004, motion essentially seeks to join a new party with only four months of discovery remaining. (Scheduling Order, entered July 29, 2004.) Believing that the Department and the District Judges are one and the same (Pl.'s 3rd Mot. to Am. Compl. at 2-3), Muhammad fails to propose any scheduling order amendment to mitigate against the undue prejudice to the District Judges. ( See id.)
Additionally, Muhammad's proposed amendment would be futile because he has failed to exhaust his administrative remedies against the District Judges by failing to name them in the EEOC charge. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (holding that the filing of a charge with the EEOC is a precondition to filing suit in federal court); Julian v. City of Houston, Texas, 314 F.3d 721, 725 n. 3 (5th Cir. 2002) (same). Muhammad urges the Court to apply the misnomer principles as grounds to amend his complaint. Analyzing the question of whether the wrong defendant has been named, the Court reviews the entire record to determine who he had in mind when he alleged that his employer discriminated against him.
In it's review of the record, the Court notes that there may be substantial merit in the Department's argument that the District Judges may in fact be Muhammad's Title VII employer. ( See Def.'s Mot. to Dismiss at 4.) See Hardin County Community Supervision and Corrections Department v. Sullivan, 106 S.W.3d 186, (Tex.App.-Austin 2003, pet. denied) and Shore v. Howard, 414 F.Supp. 379 (N.D. Tex. 1976). Such argument, however, is more appropriately addressed at summary judgment.
Under Title VII "a civil action may be brought against the respondent named in the [EEOC] charge." 42 U.S.C. § 2000e-5(f)(1). Where a deficiency exists in the EEOC charge, a court's analysis of a plaintiff's "Title VII complaint is limited to the scope of the EEOC investigation which [could] reasonably be expected to grow out of the charge of discrimination." Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). The Fifth Circuit has stated that "[o]nly parties previously identified as respondents in charges filed with the EEOC are subject to subsequent liability under Title VII." Terrell v. U.S. Pipe Foundry Co., 644 F.2d 1112, 1122 (5th Cir. 1981), vacated on other grounds, 456 U.S. 955 (1982). The rule in Terrell is tempered by Way v. Mueller Brass Company, 840 F.2d 303, 307 (5th Cir. 1988). In Way, the Fifth Circuit held "that a party not named in an EEOC charge may not be sued under Title VII unless there is a clear identity of interest between it and the party named in the charge or the party has unfairly prevented the filing of an EEOC charge." Id. Courts analyzing a plaintiff's complaint and EEOC charge conjunctively apply Terrell and Way. See Kern v. General Elec., No. Civ. 3-02-CV-2435-L, 2003 WL 21436460 at *5 (N.D.Tex. Jun 17, 2003); Hazeur v. Federal Warranty Serv. Corp., No. Civ. A. 98-2568, 1999 WL 615176 at *2 (E.D.La. Aug 12, 1999); Ferrell v. Shell Oil Co., No. Civ. A. 95-0568, 1995 WL 739878 at *4-5 (E.D.La. Dec 12, 1995). Important in the identity of interest analysis is whether the new defendant received fair notice. See Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) ("notice may be imputed to the new party through shared counsel"); Moore v. Long, 924 F.2d 586, 588 (5th Cir. 1991) (no identity of interest where plaintiff produced no evidence that new defendant shared counsel with original defendant).
In neither of his EEOC charges against "Dallas County Probation" does Muhammad indicate that the District Judges are his employer. (Def.'s Mot. in Opp'n to Pl.'s [2nd] Mot. to Am. Compl., App. at 2-6, 10.) Likewise neither of the EEOC's right to sue letters indicate that the EEOC either: (1) identified the District Judges as Muhammad's employer or respondent, i.e. the party who could engage in voluntary compliance or participate in EEOC conciliation; or (2) investigated the District Judges as potential Title VII violators. ( Id., App. at 8, 12.) The EEOC determined that "[b]ased on its investigation, [it] is unable to conclude that the information obtained establishes violations of the statutes." ( Id., App. at 12.) Notably, the EEOC copied Department Director Ron Goethal ("the Director") in its right to sue letter.
Muhammad completed three EEOC charge forms. See note 2 supra.
The Court notes that the EEOC did not investigate Muhammad's discrimination charge. (Def.'s Mot. In Opp'n to Pl.'s [2nd] Mot. to Am. Compl., App. at 8.)
That the EECO gave notice to the Director indicates the scope of the EEOC investigation which could reasonably grow out of the administrative charge: beginning with Muhammad, leading to his supervisors named in the discrimination charge, and concluding with the Director, acting in his official capacity for the Department. The EEOC's three day investigation led the EEOC to notify the Director, the party who could engage in voluntary compliance or participate in EEOC conciliation, of the charge and results. This conclusion comports with the legislative scheme that created Muhammad's position. See TXGOV. CODE § 76.004(b) (West 2005) ("The [D]epartment director shall employ a sufficient number of officers and other employees to perform the professional and clerical work of the department."); 37 TEX. ADMIN. CODE § 163.33(a) (2005) (Public Safety and Corrections, Tex. Dept. of Criminal Justice) ("In accordance with Texas Government Code § 76.005, to be eligible for employment as [a Department Probation] Officer (CSO) who supervises offenders, a person [must meet certain requirements]"); id. § 163.33(c) ("Any [Department Officer] who is first employed by a CSCD director [must complete certification requirements]"). Reviewing Muhammad's EEOC charges liberally the Court cannot find any alleged conduct which could reasonably implicate wrongdoing on the part of the District Judges. The Court concludes that the District Judges were insufficiently implicated in Muhammad's EEOC charges to have reasonably triggered an EEOC investigation of the District Judges.
Muhammad's EEOC charge names "Reggie Storey, Personnel Manager, . . . Supervisor Mr. Shaw, . . . the administrative board," and "the committee" in his description of the injury. (Def.'s Mot. In Opp'n to Pl.'s [2nd] Mot. to Am. Compl., App. at 2, 5.)
The Court's conclusion is consistent with the framework and goals of Title VII. It would be prejudicial and unfair to the District Judges to now name them as defendants without having provided them the opportunity to voluntarily comply with Title VII or participate in the EEOC conciliation process. The District Judges failed even to receive informal notice that they had been named through the EEOC's administrative processes. Although not requiring Muhammad to draft his EEOC charges as an attorney would, the Court finds that the District Judges have not had fair notice or opportunity to investigate Muhammad's charges or preserve evidence. See Ajaz v. Cont'l Airlines, 156 F.R.D. 145, 147 ("The primary purpose of an EEOC charge is to provide notice of the charges to the respondent and to activate the voluntary compliance and conciliation functions of the EEOC.") (citing Terrell, 644 F.2d at 1122).
Muhammad baldly asserts that both the District Judges and the Department "are represented by the Attorney General's office." (Pl.'s 3rd Mot. to Am. Compl., ¶ 10.) The Court finds no support for Muhammad's assertion. Although it is true that the Attorney General has a duty to defend state district judges, such representation occurs only at the behest of a district judge. See TEX.GOV. CODE § 74.141 (West 2005) ("The attorney general shall defend a state district judge . . . assigned under this chapter in any action or suit in any court in which the judge is a defendant because of his office as judge if the judge requests the attorney general's assistance in the defense of the suit.") Because the Court concludes that the investigation that could reasonably grow out of the administrative charge would not lead to the District Judges, the Court does not find that the District Judges have requested the Attorney General's assistance in the defense of either the EEOC charges or Muhammad's complaint. Muhammad's claims against the District Judges are beyond the reasonable limits of an EEOC investigation.
In his motion, Muhammad asserts that the District Judges have notice. ( See Pl.'s 3rd Mot. to Am. Compl., ¶¶ 10 et seq.) Throughout its Brief in Opposition, the Department asserts that the District Judges have not been given notice. (Def.'s Br. in Opp'n, at 3,5,6.) Because the Attorney General has verified, by way of signature, that the District Judges have not been given notice and as the Attorney General is prospective counsel for the District Judges, the Court accepts as true the Department's assertion. ( Id.)
Nothing in the record indicates that the Attorney General is in any way acting on behalf or for the benefit of the District Judges. In fact, the Attorney General's strategy in defending of the Department consists of imposing liability on the District Judges. (Def.'s Mot. to Dismiss at 4; Def.'s Reply at 1-2; Def.'s Br. In Opp'n, ¶¶ 28-29.)
On balance, the Ellis and Foman factors, weigh against granting Muhammad's Motion. The Court finds substantial reason to deny Muhammad's amendment. Cf. Stripling v. Jordan Production Co., LLC, 234 F.3d 863, 872 (5th Cir. 2000) (allowing denial of leave to amend under Rule 15(a) where substantial reason to do so exists). Accordingly, Plaintiff's Third Motion to Amend Complaint is DENIED.
B. Style of Case
In the alternative, Muhammad requests that the Court change the style of the case replacing the Department with the District Judges. Muhammad asserts legal conclusions but provides no support for his alternative argument. (Pl.'s 3rd Mot. to Am. Compl., ¶ 7.) Under either of his alternatives, Muhammad pursues the same end: to impose liability upon the District Judges as either a joint party or as the real party in interest. For the same reasons that the Court denied Muhammad leave to amend, the Court must deny Muhammad's request to change the style of the case Because no purpose would be served in the changing the style of the case, Plaintiff's alternative Motion to Change the Name of Defendant is DENIED.
IV. Conclusion
Muhammad's cite to Paul v. G.P.D.A. Inc., No. Civ. 3:02-CV-0834, 2003 WL 23218477 (N.D.Tex. Nov 19, 2003) is inapposite. Paul dealt with the application of Federal Rule 15(c) and an analysis of the relation back doctrine. "Relation back" would not cure the deficiency of notice to the District Judges.
Plaintiff has failed to utilize the EEOC administrative remedies with respect to his employer, the District Judges. Plaintiff's Third Motion to Amend Complaint is DENIED.
SO ORDERED.