United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
CATHY BISSOON, District Judge.
For the reasons that follow, Defendant's Motion to Strike or, in the Alternative, to Dismiss (Doc. 24) will be granted insofar as it seeks dismissal of Plaintiff's Rehabilitation Act claim in Count IV of the Second Amended Complaint. The motion will be denied in all other respects. Defendant's Motion to Dismiss Count IV of the First Amended Complaint (Doc. 21) will be denied as moot.
The parties are well-acquainted with the background facts underlying this employment discrimination litigation. Relevantly, Plaintiff filed her First Amended Complaint ("FAC, " Doc. No. 20) on April 29, 2014, after the Court granted her unopposed motion for leave to file the pleading (Doc. No. 19). Count IV of the FAC asserted a claim under Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§12111-12117, based on the Defendant's alleged failure to provide a reasonable work accommodation for Plaintiff following her diagnosis of post-traumatic stress disorder ("PTSD"). Defendant moved to dismiss Count IV as time-barred, and Plaintiff responded by filing her Second Amended Complaint ("SAC") (Doc. No. 23) on May 30, 2014, without seeking leave of court to do so. Defendant then moved to strike the SAC on the grounds that it was filed in violation of the deadlines established by this Court's Case Management Order (Docket No. 17). Alternatively, Defendant moved to dismiss Plaintiff's ADA claim, as well as her newly-added claim under §504 of the Rehabilitation Act, 29 U.S.C. § 794, both of which are set forth in Count IV of the SAC. Defendant contends the ADA and Rehabilitation Act claims are time-barred and/or otherwise fail to state a cause of action upon which relief can be granted.
As an initial matter, the parties dispute whether Plaintiff's claims in Count IV of the SAC should be analyzed under Rule 15(a) of the Federal Rules of Civil Procedure or under Rule 16(b)(4). In pertinent part, Rule 15(a)(1) permits a party to amend its pleading once "as a matter of course" within 21 days after service of a responsive pleading or after service of a motion asserted under Rule 12(b), (e), or (f), whichever is earlier. See Fed.R.Civ.P. 15(a)(1)(B). "In all other cases, " the Rule permits amendment of a pleading "only with the opposing party's written consent or the court's leave, " which should be "freely give[n]... when justice so requires." Fed.R.Civ.P. 15(a)(2). Under this standard, leave to amend may be denied in the court's discretion on the basis of undue delay, bad faith, dilatory motive, prejudice, or futility. Yoder v. Wells Fargo Bank, N.A., 566 F.Appx. 138, 142 (3d Cir. 2014) ( citing In re Burlington Coat Factory Sec. Litig ., 114 F.3d 1410, 1434 (3d Cir.1997)).
Rule 16(b) is implicated when a motion to amend is filed after the deadline for amendment of pleadings has passed as specified in the court's pretrial scheduling order. See Grill v. Aversa, Civil No. 1:12-CV-120, 2014 WL 198805, at *3 (M.D. Pa. Jan. 15, 2014); Componentone, L.L.C. v. Componentart, Inc., No. 2:05cv1122, 2007 WL 2580635, at *1 (W.D. Pa. Aug. 16, 2007). Subsection (b)(4) specifies that "[a] schedule may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). In accordance with this language, numerous federal courts of appeal have concluded that, "once the pretrial scheduling order's deadline for filing motions to amend the pleadings has passed, a party must, under Rule 16(b), demonstrate good cause' for its failure to comply with the scheduling order before the trial court can consider, under Rule 15(a), the party's motion to amend its pleading." Componentone, L.L.C., 2007 WL 2580635, at *2 (citing various appellate court rulings that have reached this conclusion and predicting that the Third Circuit Court of Appeals would likely come to the same conclusion). See also Chancellor v. Pottsgrove Sch. Dist., 501 F.Supp.2d 695, 701 (E.D. Pa. 2007) (same). "Good cause" for purposes of Rule 16(b)(4) focuses on the diligence of the party seeking modification of the court's scheduling order; it exists when the terms of the case management schedule cannot reasonably be met despite the diligence of the party seeking the extension. Componentone, L.L.C., 2007 WL 2580635, at *2. See also Grill, 2014 WL 198805, at *3(citing Fed.R.Civ.P. 16(b)(4) Advisory Committee Notes (1983 amendments)).
Given these differing standards of review, courts have recognized that "[t]he threshold issue in resolving a motion to amend is the determination of whether the motion is governed by Rule 15 or Rule 16 of the Federal Rules of Civil Procedure." Karlo v. Pittsburgh Glass Works, LLC, Civil Action No. 10-1283, 2011 WL 5170445, at *2 (W.D. Pa. Oct. 31, 2011). See also Cardone Indus., Inc. v. Honeywell Int'l, Inc., Civil Action No. 13-4484, 2014 WL 3389112, at *1 (E.D. Pa. July 11, 2014); Metropolitan Life Ins. Co. v. Depalo, Civil Action No. 13-3092 (KM), 2014 WL 4681094, at *2 (D.N.J. 2014) (citing Karlo, 2011 WL 5170445, at *2).
In this case, no motion to amend is technically pending because Plaintiff filed her SAC without first seeking leave of Court. Plaintiff contends that her SAC was validly filed "as a matter of course" pursuant to Rule 15(a)(1)(B) and that Rule 16(b)(4) is not implicated in this case because the Court's CMO deadline applied only to motions to amend the pleadings, not amendments made as a matter of course. Defendant, on the other hand, contends that the CMO should be interpreted as establishing a May 15, 2014 deadline for any amendment to the pleadings. Defendant argues that the SAC should be stricken because Plaintiff has failed to make the requisite showing of "good cause" for altering this deadline.
Having considered these competing arguments, the Court finds that Rule 16(b)(4) applies to this situation and provides the relevant standard of review. Although the pertinent deadline in the Court's CMO speaks in terms of "motions to amend the pleadings, " Defendant correctly points out that the wording of the CMO must be interpreted more broadly in light of Rule 16(b)(3)(A), which states (in part) that the district court's pretrial scheduling order " must limit the time to join other parties [and] amend the pleadings. " Fed.R.Civ.P. 16(b)(3)(A) (emphasis supplied). See also LCvR 16.1(B)(1)(a) (stating that "the Court shall enter an initial scheduling order that sets forth dates for... the topics identified in Fed.R.Civ.P. 16(b)(3)(A)). There is no distinction in Rule 16(b)(3)(A) between amendments that are made as a matter of course versus amendments that are made with leave of court; rather, the trial court is directed simply to set a deadline for amendment generally and for joinder of parties. This "assures that at some point both the parties and the pleadings will be fixed, by setting a time within which joinder of parties shall be completed and the pleadings amended." Fed.R.Civ.P. 16 Advisory Committee Notes, 1983 amendment (discussing subsection (b)). Defendant also argues, persuasively, that a broader interpretation of the CMO is consistent with the parties' Rule 26(f) report, wherein the parties suggested May 15, 2014 as the date "by which the pleadings shall be amended." (Rule 26(f) Report of the Parties ¶ 9(c), Doc. No. 14.) Here again, no distinction is made in the parties' Rule 26(f) report between amendments made as a matter of course and amendments made by motion, and this is in conformity with the language used in the sample report set forth in the Appendix to Local Rule 16.1A. See Appendix LCvR 16.1A, ¶9(c). Viewed in this context, the CMO's May 15, 2014 deadline is properly construed as establishing a general cut-off date for any type of amendment to the pleadings, whether the amendment is sought "as a matter of course" pursuant to Rule 15(a)(1) or by way of a motion under Rule 15(a)(2).
Accordingly, because Plaintiff's SAC was filed after the May 15, 2014 deadline, Plaintiff was required to establish "good cause" for the belated amendment regardless of whether she was ostensibly proceeding under Rule 15(a)(1). See, e.g., Trim Fit, LLC v. Dickey, 607 F.3d 528, 531 (8th Cir. 2010) (noting that "[t]here is no absolute right to amend [the pleadings] after the deadline for amendment in a scheduling order"); Kassner v. 2 nd Avenue Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007) (holding that amendment of a pleading "as a matter of course" pursuant to Rule 15(a)(1) is subject to the district court's discretion to limit the time for amendment of the pleadings in a Rule 16(b) scheduling order); Wright, Miller & Kane, 6A Fed. Prac. & Proc. Civ. §1522.2 (3d ed. 2010) ("[T]o the extent that other federal rules, such as Rule 15 governing pleading amendments, contain a more lenient standard than good cause, the Rule 16(b) standard controls any decisions to alter a scheduling order for purposes of making pleading amendments and it must be satisfied before determining whether an amendment should be permitted under Rule 15.").
Having concluded that Rule 16(b)(4)'s "good cause" standard applies in this case, the Court finds that Plaintiff has not shown "good cause" for failing to assert her Rehabilitation Act claim prior to the May 15, 2014 deadline. A review of the SAC reveals that Plaintiff's claim under the Rehabilitation Act is premised on the same facts that Plaintiff is alleging in support of her ADA claim. ( See generally SAC ¶¶ 37-60, 83-92.) All of the key facts alleged in support of the Rehabilitation Act claim were known (or available) to Plaintiff as of September 11, 2013, when the case was first commenced, yet Plaintiff never sought to add the Rehabilitation Act claim until she filed her SAC on May 30, 2014. Courts have found that such circumstances give rise to a presumption that good cause is lacking. See, e.g., Cardone Indus., Inc., 2014 WL 3389112, at *2 (stating that a party "is presumptively not diligent if, at the commencement of the lawsuit, the party knows or is in possession of the information that is the basis for that party's later motion to amend"; further stating that this presumption may be rebutted if the party offers "a clear and cognizable explanation why the proposed amendment was not included in the original pleading") (internal quotation marks and citation omitted).
Here, Plaintiff has not stated any reason why her Rehabilitation Act claim could not have been asserted in a timely manner prior to the expiration of this Court's May 15, 2014 deadline for amendment of the pleadings. The elements of a claim under § 504(a) of the Rehabilitation Act are "very similar" to the elements of a Title I ADA claim. See Donahue v. Consolidated Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000). As noted, Plaintiff has essentially offered the same factual allegations in support of both claims. Although a plaintiff asserting a claim under § 504(a) of the Rehabilitation Act also must show that the defendant receives federal funding, see CG v. Pennsylvania Dep't of Educ., 734 F.3d 229, 235 n.10 (3d Cir. 2013), this requirement does not establish grounds for good cause in the instant case. Here, Plaintiff has attempted to satisfy the "public funding" requirement by producing information that she obtained from a government website. Plaintiff did not require any formal discovery to obtain this information, as it was apparently available at all times to any member of the public with internet access. ( See Mersich Decl. ¶¶ 19-20, Docket No. 26-2; id, Ex. D, Docket No. 26-4.) Accordingly, there is no apparent reason why Plaintiff could not have availed herself of this information prior to the Court's May 15, 2014 deadline. Finally, the Court notes that the delay in this case was brought on largely by Plaintiff's efforts at administrative exhaustion; however, those efforts were not a necessary prerequisite to Plaintiff's prosecution of her Rehabilitation Act claim. See Freed v. Consolidated Rail Corp., 201 F.3d 188, 191-94 (3d Cir. 2000) (employee of private recipient of federal funds was not required to exhaust administrative remedies before bringing suit for alleged disability discrimination under § 504(a) of the Rehabilitation Act against a non-federal employer); Burkhart v. Widener Univ., Inc., 70 F.Appx. 52, 53-54 (3d Cir. 2003) (affirming this rule); Kortyna v. Lafayete College, ___ F.Supp. 3d ___, 2014 WL 4682084, at *7 (E.D. Pa. Sept. 19, 2014) (noting that "there appears to be some question" as to whether this rule "applies to a section 504 claim brought along with an ADA claim, " but nevertheless following Freed as precedential). Because Plaintiff has failed to demonstrate good cause for the belated assertion of her Rehabilitation Act claim, no extension of the Court's deadline was warranted, and the claim under the Rehabilitation Act will be dismissed.
On the other hand, the Court finds that Plaintiff has shown sufficient diligence to establish "good cause" for failing to assert the most recent iteration of her ADA claim prior to the May 15, 2014 deadline. Plaintiff originally asserted her ADA claim in her initial complaint (Docket No. 1), which was filed on September 11, 2013. After Defendant challenged the claim for Plaintiff's failure to exhaust her administrative remedies, Plaintiff stipulated to a dismissal of the ADA count without prejudice (Docket No. 9) in order to pursue her remedies before the EEOC. After those remedies were exhausted, Plaintiff sought leave to reassert her ADA claim in Count IV of the FAC (Docket No. 19). Plaintiff states that, before doing so, she supplied defense counsel a copy of the proposed FAC and inquired whether there would be any challenge to her motion for leave to amend her complaint. Counsel indicated that Defendant would not object to the motion for leave to file the FAC, and the Court permitted the filing by Text Order dated April 29, 2014. Two weeks after the FAC was filed, and only two days before the expiration of the time for amending pleadings, Defendant filed its motion to dismiss the FAC on grounds that could have served as a basis for opposing the amendment in the first place. In response to Defendant's motion to dismiss, Plaintiff filed her SAC on May 30, 2014, just fifteen days past the deadline for amending pleadings. The Court finds that, under these circumstances, Plaintiff has demonstrated sufficient diligence in prosecuting her ADA claim such that good cause exists to extend the time for amending that claim.
Even where good cause is shown to exist, however, a district court has discretion to deny a request for leave to amend under Rule 15(a) "if it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith, or dilatory motives, (2) the amendment would be futile,  or (3) the amendment would prejudice the other party." Perlman v. Universal Restoration Systems, Inc ., Civil Action No. 09-4215, 2013 WL 5278211, at *4 (E.D. Pa. Sept. 19, 2013) ( quoting Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2003)). Defendant contends that the ADA claim in Count IV of the SAC should be either stricken or dismissed because the amendment fails to state a timely and actionable claim and/or ...