United States District Court, S.D. Texas, Houston Division
LARRY SHEDRACK AFORIGHO, Plaintiff.
TAPE PRODUCTS COMPANY TPC, Defendant.
M. EDISON UNITED STATES MAGISTRATE JUDGE
before me is Plaintiff's Motion for Leave to File an
Amended Complaint (“Motion to Amend”).
See Dkt. 10. This case presents a unique factual
scenario and intriguing legal questions that might pop up on
a law school exam, testing a student's knowledge of
federal civil procedure. Initially, I must weigh in on
whether the Motion to Amend has been timely filed. If it has
been timely filed, I must then determine whether the Texas
relation-back or federal relation-back rule applies to the
facts of this case. In the event I conclude that the federal
rule applies, I must then decide whether Federal Rule of
Civil Procedure 15(c) (“Rule 15(c)”) permits a
plaintiff to file amended claims that relate back to an
original pleading that asserted only time-barred claims. I am
confident that most law professors would find the procedural
posture of this case and the legal issues at play
fascinating. At the same time, I am also quite certain that
most law students, even the most serious candidates, would be
left scratching their heads to figure out the proper result.
carefully reviewing the legal briefing, analyzing the
relevant case law, and hearing oral argument, the Motion to
Amend is GRANTED for the reasons discussed
Larry Aforigho (“Aforigho”) worked as the Houston
territorial sales manager for Defendant Tape Products Company
(“Tape”) from October 2010 until he was
terminated in October 2016. On January 27, 2017, Aforigho
dual-filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and
Texas Workforce Commission, claiming that he was terminated
because of his race (African-American) and national origin
(Nigerian). He received his right to sue letter from the EEOC
on December 14, 2018.
filed this lawsuit on March 12, 2019-88 days after he
received his right to sue letter-in the 125th Judicial
District Court of Harris County, Texas, alleging claims of
intentional infliction of emotional distress and
discrimination under the Texas Commission on Human Rights Act
(“TCHRA”). See Tex. Labor Code §
21.001 et seq. Aforigho did not assert a Title VII
cause of action in state court.
removed the case to federal court in May 2019 on diversity
grounds. Shortly after removing the case, Tape filed a Motion
for Summary Judgment. In that motion, Tape argues that the
case should be dismissed because Aforigho's state law
claims are time-barred. Tape advances several independent
reasons why Aforigho's state law claims are time-barred.
First, Aforigho did not file and serve his TCHRA claim within
60 days of receiving his right to sue letter as required by
state law. Second, Aforigho did not institute his TCHRA cause
of action within two years of filing his administrative
complaint as required by state law. Finally, Tape contends
that Aforigho's intentional infliction of emotional
distress claim fails because it was not brought within the
applicable two-year statute of limitations. In response to
the summary judgment motion, Aforigho did not contest the
underlying merits of Tape's arguments. Instead, Aforigho
simply sought to file a proposed First Amended Complaint,
dropping all state law claims and adding a Title VII cause of
action. By the time Aforigho requested to add a Title VII
claim, more than 90 days had elapsed since he received the
EEOC's right to sue letter. This is important because,
under federal law, Title VII claims must be filed within 90
days from the employee's receipt of the EEOC right to sue
letter. See 42 U.S.C. § 2000e-5(f)(1).
opposes Aforigho's attempt to file an amended complaint,
arguing that it would be futile to allow Aforigho to amend
his complaint because his Title VII claim is untimely. Tape
maintains that Aforigho's Title VII claim cannot, under
Rule 15(c), relate back to the originally filed state court
action because the state law claims asserted in the Original
Petition were time-barred when the lawsuit was filed. In
response, Aforigho argues that his Title VII claim, although
filed after the statutory 90-day period, is not time-barred
because it relates back to the date of his Original Petition
in state court under Rule 15(c). Since the Original Petition
was filed within 90 days of receipt of the right to sue
letter (88 days to be exact), Aforigho maintains his Title
VII claim is timely-even though it relates back to the
admittedly untimely state court action.
Federal Rules of Civil Procedure permit liberal amendment of
pleadings. Rule 15(a) provides that “a party may amend
its pleading with . . . the court's leave” and that
“[t]he court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Although a district
court should generally give a plaintiff at least one chance
to amend under Rule 15(a), it is within the sound discretion
of the district court to deny a motion to amend when
amendment would be futile. See Legate v. Livingston,
822 F.3d 207, 211 (5th Cir. 2016) (While “the language
of [Rule 15(a)] evinces a bias in favor of granting leave to
amend, . . . a district court need not grant a futile motion
to amend.”) (internal quotation marks and citations
omitted). A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal. See Stripling v.
Jordan Prod. Co., 234 F.3d 863, 872-73 (5th Cir. 2000).
The Fifth Circuit has expressly held that a district court
does not abuse its discretion in denying leave to amend where
the new claims a plaintiff seeks to assert are barred by the
statute of limitations. See Winzer v. Kaufman Cty.,
916 F.3d 464, 471 (5th Cir. 2019).
my ruling turns on whether Texas state law or federal law
applies to the relation-back issue, it is critical to
describe how the relation-back doctrine differs under state
and federal law.
15(c) of the Federal Rules of Civil Procedure governs the
amendment of pleadings in federal court. It provides that
“[a]n amendment to a pleading relates back to the date
of the original pleading when . . . the amendment asserts a
claim or defense that arose out of the conduct, transaction,
or occurrence set out-or attempted to be set out- in the
original pleading.” Fed.R.Civ.P. 15(c)(1)(B). This
standard is met if the original and amended complaints allege
the same “general conduct” and “general
wrong.” Durand v. Hanover Ins. Grp., Inc., 806
F.3d. 367, 375 (6th Cir. 2015) (internal quotation marks and
citation omitted). Thus, by allowing a plaintiff to relate
back his amended pleading to the date of the original
pleading, the amended pleading becomes “timely even
though it was filed outside an applicable statute of
limitations [period].” Krupski v. Costa Crociere S.
p. A., 560 U.S. 538, 541 (2010). “The rationale of
the rule is that, once litigation involving a particular
transaction has been instituted, the parties should not be
protected by the statute of limitations from later asserted
claims that arose out of the same conduct set forth in the
original pleadings.” Flores v. Cameron Cty.,
92 F.3d 258, 272- 73 (5th Cir. 1996) (quotation marks,
brackets, and citation omitted). See also FDIC v.
Conner, 20 F.3d 1376, 1385 (5th Cir. 1994) (“The
theory that animates this rule is that once litigation
involving particular conduct or a given transaction or
occurrence has been instituted, the parties are not entitled
to the protection of the statute of limitations against the
later assertion by amendment of defenses or claims that arise
out of the same conduct, transaction, or occurrence as set
forth in the original pleading.”) (internal quotation
marks and citation omitted). “If a plaintiff seeks to
correct a technical difficulty, state a new legal theory of
relief, or amplify the facts alleged in a prior complaint,
then relation back is allowed.” Flores, 92
F.3d at 273 (quoting Conner, 20 F.3d at 1386)
(brackets omitted). “Notice is the critical element
involved in Rule 15(c) determinations.” Id.
(quoting Williams v. United States, 405 F.2d 234,
236 (5th Cir. 1968)). See also Norfolk Cty. Ret. Sys. v.
Cmty. Health Sys., Inc., 877 F.3d. 687, 694 (6th Cir.
2017) (“[I]f the original complaint puts a defendant on
notice of the plaintiff's general claim, then new
allegations that merely build on that claim should come as no
wording of the Texas relation-back statute is notably
different from its federal counterpart. It provides that a
claim asserted in an amended petition relates back to the
original petition “[i]f a filed pleading relates to a
cause of action . . . that is not subject to a plea of
limitation when the pleading is filed.” Tex. Civ.
Prac. & Rem. Code § 16.068 (emphasis added). This
“not subject to a plea of limitation when the pleading
is filed” language ...