United States District Court, W.D. Pennsylvania
KELLY J. VAY, Plaintiff,
ROBERT HUSTON, Administrator, Laboratory Director of the Medical Examiner of Allegheny County, in his individual capacity; STEPHEN PILARSKI, former Administrator of the Office of the Medical Examiner of Allegheny County and currently Deputy Manager of Allegheny County, in his individual capacity; MICHAEL BAKER, former Manager of Morgue Operations, in his individual capacity; and MICHAEL CHICHWAK, Manager of Investigations, in his individual capacity, Defendants.
NORA BARRY FISCHER, District Judge.
Pending before the Court are Plaintiff's Motion for Leave to File Third Amended Complaint, (Docket No. 96), and Defendants' Motion to Strike Immaterial, Impertinent, and Scandalous Matter, (Docket No. 93). Plaintiff's Motion seeks Leave of Court to file a Third Amended Complaint, incorporating First Amendment counts that were previously not brought. (Docket No. 96). Defendants' Motion, (Docket No. 93), requesting that the Court strike paragraphs 8-16 of "Plaintiff's Motion to Quash/Modify Subpoena to Jen Sullivan; Alternatively, Plaintiff's Motion for Protective Order Pursuant to Rules 26(c), 32(5)(A) & 45(c)(1), " (Docket No. 91), argues that those paragraphs are immaterial, impertinent, and/or scandalous, (Docket No. 93).
II. LEAVE TO AMEND COMPLAINT
A party seeking leave to amend the pleadings after the deadline set by the Court's Case Management Order must satisfy the requirements of Rule 16(b)(4) of the Federal Rules of Civil Procedure. See Walker v. Centocor Ortho Biotech, Inc., 558 Fed.App'x 216, 221-22 (3d Cir. 2014) (citing Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010). A Case Management Order "may be modified only for good cause and with the judge's consent." FED.R.CIV.P. 16(b)(4). Good cause requires a demonstration of due diligence. Race Tires Am., Inc., 614 F.3d at 84. "Many courts have recognized that [w]here... the party knows or is in possession of the information that forms the basis of the later motion to amend at the outset of the litigation, the party is presumptively not diligent.'" Graham v. Progressive Direct Ins. Co., 271 F.R.D. 112, 119 (W.D. Pa. Sep. 15, 2015) (Fischer, J.) (quoting Price v. Trans Union, LLC, 737 F.Supp.2d 276, 280 (E.D. Pa. 2010)).
Only once the moving party demonstrates good cause under Rule 16(b)(4) can the Court consider its Motion to Amend under Rule 15's standard. Cf. Walker, 558 Fed.App'x at 221-22 (citing Race Tires Am., Inc., 614 F.3d at 84). "[A] party may amend its pleading only with the opposing party's written consent or the court's leave." FED.R.CIV.P. 15(a)(2). "The court should freely give leave when justice so requires." Id. "[M]otions to amend pleadings should be liberally granted." Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (citations omitted). "Leave to amend must generally be granted unless equitable considerations render it otherwise unjust." Arthur v. Maersk, Inc., 434 F.3d 196, 200 (3d Cir. 2006) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). "Among the factors that may justify denial of leave to amend are undue delay, bad faith, and futility." Id. (citing Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993)). "It is well-settled that prejudice to the non-moving party is the touchstone for the denial of [leave to file] an amendment." Cornell & Co. v. Occupational Safety and Health Review Com'n, 573 F.2d 820, 823 (3d Cir. 1978) (citations omitted). "As to prejudice, the Court of Appeals has considered whether allowing an amendment would result in additional discovery, cost, and preparation to defend against new facts or new theories." Graham, 271 F.R.D. at 123 (citing Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001)). "Given the liberal standard under Rule 15(a), the burden is on the party opposing the amendment to show prejudice, bad faith, undue delay, or futility.'" Id. (citing Chancellor v. Pottsgrove Sch. Dist., 501 F.Supp.2d 695, 700 (E.D. Pa. 2007)). The test under Rule 15(a) "is in the disjunctive, meaning that if [Defendants] meet [their] burden to prove any one of these elements, the [amendment] should not be permitted." Id.
i. Rule 16
Generally, Plaintiff's main argument in support of her Motion to Amend is that uncovering new information during the course of discovery in this matter allows her to bring a First Amendment claim that she was otherwise unable to previously support. (Docket No. 96 passim ). Defendants counter that all information necessary to support a prima facie First Amendment claim was in Plaintiff's possession as of August 2013, and was known by her attorney by June 2014, when he first filed this case. (Docket No. 121 at 5-6).
Plaintiff's purported First Amendment claim arises out of a letter (hereinafter "the Letter, " located at Docket No. 151-1) she was allegedly involved in writing and sending to Defendant Rich Fitzgerald, County Executive, as well as the Pittsburgh Tribune Review newspaper. (Docket No. 96 at ¶ 12). The Letter was referenced in an article published by the Tribune (hereinafter "the Article, " reproduced in whole in an email at Docket No. 96-2) on August 3, 2013, and generally complains that the County Medical Examiner's Office was failing to conduct autopsies in "cases that meet the criteria for a forensic autopsy." (Docket Nos. 96-2, 151-1). The Letter was signed "The Forensic Investigators of the Allegheny County Medical Examiner's Office, " and is dated August 1, 2013. (Docket No. 151-1).
Plaintiff's Counsel claims that he "was first made aware of" the Article on February 26, 2015, at the deposition of Allison Bixby,  when it was used as an exhibit by Defense Counsel. (Docket No. 96 at ¶ 11). However, Plaintiff's Counsel had a duty to investigate the factual underpinnings of his client's claims. See FED.R.CIV.P. 11. Given the temporal proximity of the writing of the Letter, the publication of the Article, and Plaintiff's suspension, stemming from an altercation regarding the Article and Letter, the existence of the Letter clearly would have been apparent after a reasonable interview with Ms. Vay. Additionally, it is good practice to utilize publicly accessible sources of information ( e.g., newspapers, Internet searches, Freedom of Information Act requests, etc.) to investigate a client's claims. In fact, the Court routinely utilized such sources in private practice and continues to do so.
Further, the Letter, the Article, and a "Report of Incident, " (Docket No. 121-2), discussing the events surrounding Plaintiff's August 2013 suspension were produced in Defendants' initial disclosures on November 25, 2014. (Docket Nos. 96 at 3 n.2, 121 at 6 n.2). Despite same, Plaintiff's Counsel claims that he remained unaware of the Article and the Letter because "it was buried' amidst thousands of other documents until it was marked as  Exhibit I in the Allison Bixby Deposition." (Docket No. 96 at 3 n.2). Plaintiff's Counsel's apparent failure to review disclosures clearly does not demonstrate the diligence necessary to find good cause as counsel has a duty to diligently review discovery. See Race Tires Am., Inc., 614 F.3d at 84-85 (affirming denial of Motion for Leave to Amend Complaint when movant complained, inter alia, that "key facts" were hidden within "hundreds of thousands of late-produced documents").
Plaintiff also argues that he was first made aware "that Allegheny County Manager William McKain had a meeting within a day or two of the August 3, 2013 article with Dr. Williams, Stephen Pilarski, Robert Huston and other regarding [the Article], " during the April 21, 2015 deposition of Robert Huston. (Docket No. 96 at ¶ 15). Plaintiff contends that this revelation is crucial as it supports the second element of her proposed First Amendment claim ( i.e., that the speech at issue - the Letter - was a substantial or motivating factor in Plaintiff's suspension). (Docket No. 149 at 8). However, in her own deposition, taken on March 26, 2015, Plaintiff stated that she was aware that Baker ...