United States District Court, N.D. Texas, Dallas Division
to U.S. Magistrate Judge
MEMORANDUM OPINION AND ORDER
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
the Court is the Motion for Leave to File Plaintiff's
Amended Complaint with Consent of Federal Government
Deftendants [sic] et al., filed October 11, 2019 (doc.
43). Based on the relevant filings and applicable law, the
motion is GRANTED.
2, 2019, the pro se plaintiff filed this action
against the defendants, alleging that they conspired to
withhold his monthly disability benefits. (See doc.
3.) A scheduling order was entered on September 11, 2019,
which provided that “[a]ll motions for leave to amend
pleadings must be filed no later than February 7,
2019.” (doc. 38 at 1.) After some
defendants moved to dismiss the complaint, the plaintiff
filed an amended complaint without the defendants'
consent and without seeking leave of court, and it was
stricken. (See docs. 41, 42.) The plaintiff now
seeks leave to file an amended complaint. (See doc.
43.) The defendants oppose amendment on grounds of undue
delay and futility. (See docs. 52, 53, 54.)
15(a) of the Federal Rules of Civil Procedure permits a party
to amend his pleading once as a matter of course within 21
days after serving it, or if a responsive pleading is
required, with 21 days of receiving the responsive pleading
or a motion under Rule 12(b), (e), or (f). Rule 15(a) evinces
a bias in favor of amendment and requires that leave be
granted “freely.” Chitimacha Tribe of La. v.
Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir.
1982). A court's discretion to grant leave is severely
limited by the bias of Rule 15(a) favoring amendment.
Dussouy v. Gulf Coast Investment Corp., 660 F.2d
594, 598 (5th Cir. 1981). Leave to amend should not be denied
unless there is a substantial reason to do so.
Jacobsen v. Osbourne, 133 F.3d 315, 318 (5th Cir.
1998). There is a substantial reason to deny leave if the
proposed amendment would cause undue delay or prejudice to
the non-movant, if it is motivated by bad faith or dilatory
motives, if there have been repeated failures to cure
deficiencies with prior amendment, or if the amendment is
futile. Foman v. Davis, 371 U.S. 178, 182 (1962);
see also Martin's Herend Imports, Inc. v. Diamond
& Gem Trading, 195 F.3d 765, 770 (5th Cir. 1999);
Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.
defendants contend that the plaintiff's motion should be
denied based on undue delay because he missed the deadlines
for amendment as a matter of right established by the federal
rules and the order to respond to the defendants' motions
to dismiss. (See doc. 52 at 2-4; doc. 53 at 1-4;
doc. 54 at 6-8.)
litigant's failure to assert a claim as soon as he could
have is properly a factor to be considered in deciding
whether to grant leave to amend. Merely because a claim was
not presented as promptly as possible, however, does not vest
the district court with authority to punish the
litigant.” Carson v. Polley, 689 F.2d 562, 584
(5th Cir. 1982). Delay alone is an insufficient basis to deny
leave to amend, and delay must be “undue,
i.e., it must prejudice the nonmoving party or impos[e]
unwarranted burdens on the court.” In re Enron
Corp. Securities, Derivative & ERISA Litigation, 610
F.Supp.2d 600, 653 (S.D.Tex. 2009)(emphasis in
original)(quoting Mayeaux v. Louisiana Health Service and
Indemnity Co., 376 F.3d 420, 427 (5th Cir. 2004)). When
a court considers a motion for leave to add a new theory to
the complaint, “[a]s a general rule, the risk of
substantial prejudice increases with the passage of
time.” Home Depot U.S.A., Inc. v. Nat'l Fire
Ins. Co. of Hartford, No. 3:06-CV-0073-D, 2007 WL
2592353, at *2 (N.D. Tex. Sept. 10, 2007) (citation omitted).
The Fifth Circuit recognizes that “even under the more
liberal Rule 15 standard [a court] ‘more carefully
scrutinize[s] a party's attempt to raise new theories of
recovery by amendment when the opposing party has filed a
motion for summary judgment.'” Squyres v. Heico
Cos., LLC, 782 F.3d 224, 239 (5th Cir. 2015) (citation
because the plaintiff sought leave to file a first amended
complaint by the deadline, the motion is presumed timely.
See Smallwood v. Bank of Am., No. 3:11-CV-1283-D,
2011 WL 4941044, at *1 (N.D. Tex. Oct. 17, 2011) (explaining
that “there is a presumption of timeliness” if
the motion for leave is filed by the court-ordered deadline);
see also Mary Kay, Inc. v. Dunlap, 3:12-CV-29-D,
2012 WL 3283475, at *2 (N.D. Tex. Aug. 13, 2012) (finding
that argument of undue delay “lacks force” where
amendment was sought by court-ordered deadline). The
defendants have not shown that permitting the amendment will
cause undue delay or prejudice under these circumstances,
especially since there are almost two months left until the
discovery deadline elapses. See Carson, 689 F.2d at
583-585 (finding the district court abused its discretion in
denying leave to amend complaint to add an additional claim
where there was no pretrial order or conference, there was no
evidence in the record to suggest the plaintiff acted in bad
faith in not previously including the claim, and there was no
evidence of prejudice to the defendants if the claim was
allowed to be made); compare On Asset Intelligence, Inc.
v. Freight weight International (USA), Inc., No.
3:11-CV-3148-G, 2012 WL 5409660, at *2 (N.D.Tex. Nov. 6,
2012) (finding the “usual case in which ‘undue
delay' supports a court's denial of leave to amend is
where a party waits until the eve of trial to assert a new
claim); Daves v. Payless Cashway, Inc., 661 F.2d
1022, 1025 (5th Cir. 1981) (finding an unexplained delay in
seeking to amend complaint on the day of trial coupled with
the fact that the amended complaint presented a theory of
recovery far removed from the original, justified denial of
leave to amend even though there was no showing of bad
faith). This FLSA collective action is still at an early
stage, and when the facts in this case are “carefully
scrutinized, ” nothing in the record suggests an undue
delay or a dilatory motive by the plaintiff, or undue
prejudice to the defendants.
defendants also argue that the plaintiff's motion for
leave to amend should be denied based on the futility of the
proposed amendment because he has failed to state a claim
against them. (See doc. 52 at 5-8; doc. 54 at 8-12.)
context of Rule 15(a), the Fifth Circuit has interpreted
futility to mean that “the amended complaint would fail
to state a claim upon which relief could be granted, ”
so courts must apply the same standard as under Rule
12(b)(6). Stripling v. Jordan Prod. Co., 234 F.3d
863, 873 (5th Cir. 2000). Leave to amend does not need to be
granted when the amended complaint would not defeat a motion
to dismiss. See Id. The issue of futility, however,
is better addressed “in the context of a Rule 12(b)(6)
or Rule 56 motion, where the procedural safeguards are
surer.” Smallwood, 2011 WL 4941044 at *1;
see also McDade v. Wells Fargo Bank, N.A., No.
H-10-3733, 2011 WL 4860023 at *4 (S.D. Tex. Oct. 13, 2011)
(explaining that in the context of a motion for leave,
futility means that “the amended complaint would fail
to state a claim upon which relief could be granted”)
(quoting Stripling, 234 F.3d at 873). This
Court's “almost unvarying practice when futility is
raised [in response to a motion for leave to amend] is to
address the merits of the claim or defense in the context of
a Rule 12(b)(6) or Rule 56 motion . . . where the procedural
safeguards are surer.” Poly-America, Inc. v.
Serrott Int'l Inc., No. 3:00-CV-1457-D, 2002 WL
206454, at *4-5 (N.D. Tex. Feb. 7, 2002) (citation omitted).