Opinion
Case No. 2:02-CV-162 TC
May 25, 2004
ORDER
This matter comes before the court on Plaintiffs' Motion for Leave to File Amended Complaint. Essentially, Plaintiff's seek leave to amend their First Amended Complaint to allege claims for employment discrimination and civil violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Defendants Group 4 Falck (formerly "The Wackenhut Corporation"), John Connell, Richard Smith, Dennis Murray, and Jeff Gruendell (collectively, the "Wackenhut Defendants") oppose Plaintiffs' Motion to the extent that it seeks to add a claim under RICO. For the reasons set forth below, Plaintiffs' Motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiffs filed their original Complaint on February 26, 2002. Plaintiffs then filed a First Amended Complaint as of right on December 18, 2002 (the case was sealed before that time and so no responsive pleading had been filed). In their First Amended Complaint, the Plaintiffs alleged six causes of action against each of the Defendants: (1) "Employment Discrimination / 42 U.S.C. § 2000e" (racial discrimination and retaliation); (2) "False Claim / Whistle-Blowing / A Qui Tam Claim / 31 U.S.C. § 3730"; (3) "Conspiracy to Obstruct Justice / 42 U.S.C. § 1985"; (4) "State Whistle-Blowing Claims / U.C.A. §§ 67-21-3 34-20-8"; (5) "Intentional Infliction of Emotional Distress"; and (6) "RICO — Racketeer Influenced and Corrupt Organizations / 18 U.S.C. § 1961." (First Amended Complaint.)
Defendants Utah Transit Authority ("UTA") and David Lamph (collectively the "UTA Defendants") filed a Motion for Summary Judgment in February 2003. At the same time, the Wackenhut Defendants filed motions to dismiss some, but not all, of the Plaintiffs' claims (they sought dismissal of the Qui Tam Claim, the 42 U.S.C. § 1985 claim, the claim for intentional infliction of emotional distress, and the RICO claims). The court granted the UTA Defendants' motion and the Wackenhut Defendants' motions. (See Jan. 30, 2004 Order (Dkt. # 58).) The UTA Defendants are no longer parties to the lawsuit. And only Plaintiffs' employment discrimination and state whistle blowing claims remain against the Wackenhut Defendants.
Now, Plaintiffs seek to amend their First Amended Complaint to restate their employment discrimination claims against the Wackenhut Defendants, eliminate their state whistle blowing claims, add a claim under RICO (Plaintiffs seek to add a claim that the Wackenhut Defendants violated RICO by tampering with a witness or informant in violation of 18 U.S.C. § 1512(b)(3)), and remove some Defendants (i.e., UTA, David Lamph, and the Board of Directors of the Wackenhut Corporation (originally named but apparently never served)) from the list of defendants named in the complaint. (See [Proposed] Second Am. Compl, attached to Pls.' Mot. for Leave to File Second Am. Compl.)
Plaintiffs cite to 18 U.S.C. § 1512(c), but the language of the proposed amendment suggests that Plaintiffs are actually seeking recovery based on an alleged violation of 18 U.S.C. § 1512(b)(3). (See [Proposed] Second Am. Compl. at ¶ 127.)
ANALYSIS
Federal Rule of Civil Procedure 15(a) makes clear that leave to file an amended complaint shall be freely given when justice so requires. Fed.R.Civ.P. 15(a). Still, because the permissive period within which to amend the complaint has passed, the decision to grant leave is within the court's discretion. Id; Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994).
Plaintiffs' Request to Add RICO Claim
Untimeliness alone is a sufficient reason to deny leave to amend, "especially when the party filing the motion has no adequate explanation for the delay." Pallottino, 31 F.3d at 1027 (quoting Frank v. U.S. West. Inc., 3 F.3d 1357, 1365-66 (10th Cir. 1993)). Similarly, and significant here, courts have denied leave to amend when the party advances a new legal theory based on evidence that was available at the time the original complaint was filed, particularly when the amendment is presented after the party's primary legal theories have been dismissed.See, e.g., Viernow v. Euripides Dev. Corp., 157 F.3d 785, 800 (10th Cir. 1998) (affirming trial court's denial of leave to amend when plaintiff "sought leave to amend some nineteen months after filing his original complaint, and such leave was only sought after the trial judge orally granted the defendants' summary judgment motion"); Pallottino, 31 F.3d at 1027 (affirming trial court's denial of leave to amend when plaintiff's proposed amendment "was not based on new evidence unavailable at the time of the original filing . . . and [plaintiff] proposed a theory that [he] did not choose to advance until after his primary theory had been dismissed"); Bauchman v. West High School, Civ. No. 95-C-506G, 1996 WL 407856 at *9 (D. Utah May 30, 1996) (denying leave to amend because plaintiff sought leave only after court had dismissed complaint and because plaintiff did not articulate justification for failing to amend before court ruled on defendants' motions).
Here, Plaintiff's proposed their new RICO theory fourteen months after filing their First Amended Complaint and only after the court had dismissed their initial RICO claims against the Defendants. Initially, Plaintiffs attempted to bring claims under RICO § 1962 by alleging that the Defendants had committed predicate acts in violation of 18 U.S.C. § 1503(a), 1512(a)(2), and 1512(b)(1)-(2). The court dismissed those claims for various reasons, including the reason that Plaintiffs did not allege the existence of a RICO enterprise. (See Jan. 30, 2004 Order at 21-26.) Now, Plaintiffs are attempting to bring a claim under RICO § 1962 by alleging that the Wackenhut Defendants have committed a predicate act in violation of 18 U.S.C. § 1512(b)(3) (prohibiting tampering with a witness with intent to "hinder, delay, or prevent the communication to a law enforcement officer, . . . of information relating to the commission or possible commission of a Federal offense").
Because the legal and factual allegations in Plaintiffs' First Amended Complaint are difficult to follow, it is not altogether clear whether their proposed RICO claim actually advances a new theory or simply repeats a theory that was dismissed by the court in January 2004.
Before the court dismissed Plaintiffs' RICO claims, the Plaintiffs did file an earlier motion for leave to amend their First Amended Complaint. At the same time the court dismissed some of the Plaintiffs' claims, the court denied Plaintiffs' request for leave to amend primarily because their motion was not accompanied by a proposed second amended complaint and they did not explain whether the proposed amendment added additional causes of action or modified existing ones. (See Jan. 30, 2004 Order (Dkt. # 58).) In the January 30, 2004 Order, the court granted Plaintiffs permission to file, if they chose, another motion for leave to amend. Plaintiffs responded by filing the motion being considered now.
Plaintiffs have not presented any new evidence or factual allegations. They have not provided a reason in their briefs for waiting until now to advance such a theory. Moreover, it looks as if they are trying to cure the defects identified by the Defendants in their briefs and the court in its January 30, 2004 Order.
A busy district court need not allow itself to be imposed upon by the presentation of theories seriatim. Liberality in amendment is important to assure a party a fair opportunity to present his claims and defenses, but "equal attention should be given to the proposition that there must be an end finally to a particular litigation." [Citation omitted] . . . Much of the value of summary judgment procedure in the cases for which it is appropriate . . . would be dissipated if a party were free to rely on one theory in an attempt to defeat a motion for summary judgment and then, should that theory prove unsound, come back along thereafter and fight on the basis of some other theory.Pallottino, 31 F.3d at 1027 (quoting Freeman v. Continental Gin Co., 381 F.2d 459, 469-70 (5th Cir. 1967)).
Plaintiffs' request to add the proposed RICO claim to their Second Amended Complaint is DENIED.
Plaintiffs* Request to Amend Employment Discrimination Claims, Eliminate State Whistle Blower Claims, and Drop Certain Defendants From the Suit
The remaining amendments proposed in Plaintiffs' Motion for Leave are not opposed by the Wackenhut Defendants. Plaintiffs' remaining requests are appropriate. Accordingly, the court GRANTS their Motion for Leave with respect to the aforementioned proposed changes.
ORDER
For the reasons set forth above, Plaintiffs' Motion for Leave to File Second Amended Complaint is GRANTED IN PART and DENIED IN PART. Specifically:1. The court denies Plaintiffs' request for leave to file a Second Amended Complaint containing the proposed RICO claim.
2. The court grants Plaintiffs' request for leave to file a Second Amended Complaint with respect to restatement of the employment discrimination claims, elimination of the state whistle blower claims, and removal of certain Defendants from the suit, as set forth in the proposed Second Amended Complaint,
IT IS SO ORDERED.