United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiffs “Motion for
Leave to Amend Plaintiffs First Complaint Dismissing Count
One and Two of Plaintiff s Initial Complaint While Keeping
Count Three and Adding an Additional
Count.” (ECF No. 45) (hereinafter, “motion
for leave to amend the petition”). Defendant St. Louis
County (“County”) opposes the motion. (ECF No.
47). For the reasons stated herein, the Court denies
Plaintiffs motion for leave to amend the petition.
Factual and Procedural Background
originally filed a three-count petition against five
defendants: County, Stenger, Sharon Gardner, Donald Edwards,
and Joyce Theard. Plaintiff sued the four individuals in
their official capacities and sued Defendants Gardner,
Edwards, and Theard in their individual capacities as well.
In the petition, Plaintiff sought monetary relief on the
grounds Defendants: (1) discriminated against him on the
basis of age in violation of the Missouri Human Rights Act
(MHRA); (2) discriminated against him on the basis of
disability in violation of the MHRA; and (3) discriminated
against him on the basis of disability in violation of the
Americans with Disabilities Act (ADA). In support of these
claims, Plaintiff stated that: he previously worked as a
health inspector for St. Louis County; “had a severe
allergy to shellfish”' was over the age of forty
“at all times material hereto”' and, due to
the allergy, suffered a “physical impairment that
substantially limits one or more major life
activities.” Additionally, Plaintiff averred that
Defendants: were aware of his shellfish allergy; refused to
accommodate him; repeatedly assigned him jobs that forced him
into contact with shellfish, causing him to become ill and
require hospitalization; treated him differently than
younger, allergy-free coworkers; and subjected him to
“abusive treatment, ” demotion, and termination.
24, 2017, the Court granted Defendants Gardner's and
Theard's motion to dismiss. (ECF No. 30). The Court also
granted in part the motion to dismiss filed by Defendants
County and Stenger, dismissing with prejudice Plaintiff's
claims for discrimination based on age and disability under
the MHRA. (ECF No. 30). On October 23, 2017, the Court
dismissed with prejudice Plaintiff's ADA claim against
Defendant Stenger, as well as Plaintiff's request for an
award of punitive damages from Defendant County under the
ADA. (ECF No. 36). The sole remaining count in
Plaintiff's petition is his ADA claim against Defendant
to the Court's case management order, the deadline for
amendment of pleadings was September 19, 2017. (ECF No. 32).
Plaintiff's previous counsel filed a motion to withdraw
on February 13, 2018, and his current counsel entered an
appearance on February 23, 2018. (ECF Nos. 41 & 44).
Discovery in this action closed on February 20, 2018. (ECF
No. 32). Plaintiff filed his motion for leave to amend the
petition on March 2, 2018. (ECF No. 45).
motion for leave to amend the petition, Plaintiff seeks to
add a claim of constructive discharge under the MHRA. (ECF
No. 45). In support of his motion, Plaintiff asserts that
“initial discovery review by new counsel has revealed
evidence of constructive discharge under the
[MHRA.]” (ECF No. 45). In response, Defendant
County argues that: (1) amending the petition “at this
late date would prejudice [D]efendant and would disrupt the
Case Management Order in place”; and (2) adding a claim
for constructive discharge would be futile because it is
untimely. (ECF No. 47).
15(a) provides that a “court should freely give leave
[to amend a pleading] when justice so requires.”
Fed.R.Civ.P. 15(a)(2). “Under the liberal amendment
policy of Federal Rule of Civil Procedure 15(a), a district
court's denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad
faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the non-moving party can be
demonstrated.” Roberson v. Hayti Police Dept.,
241 F.3d 992, 995 (8th Cir. 2001) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
when a party seeks to amend a pleading after the deadline in
the applicable case management order, Rule 16(b) requires
“a showing of good cause.” Kmak v. American
Century Cos., Inc., 873 F.3d 1030, 1034 (8th Cir. 2017)
(quoting Williams v. TESCO Servs., Inc., 719 F.3d
968, 977 (8th Cir. 2013)). Good cause requires a change in
circumstance, law, or newly discovered facts. Peterka v.
City of Maplewood, No. 4:14-CV-823 ERW, 2015 WL 2145342,
at *2 (E.D.Mo. May 7, 2015). “The primary measure of
good cause is the movant's diligence.”
Kmak, 873 F.3d at 1034 (quoting Harris v. FedEx
Nat'l LTL, Inc., 760 F.3d 780, 786 (8th Cir. 2014)).
as here, a party seeks leave to amend the pleadings beyond
the case management order deadline, a court first considers
whether good cause exists under Rule 16(b)(4). Nestle
Purina Petcare Co. v. The Blue Buffalo Co., Ltd., No.
4:14-CV-859 RWS, 2016 WL 4272241, at *2 (E.D.Mo. Aug. 12,
2016). If good cause is established, a court will consider
whether amendment is proper under Rule 15(a). Id.
(citing Sherman v. Winco Fireworks, Inc., 532 F.3d
709, 716 (8th Cir. 2008)).
Court's scheduling order established a September 19, 2017
deadline for amending the pleadings. Plaintiff moved for
leave to amend the petition approximately seventeen months
after filing the petition and nearly six months after the
deadline for amending the pleadings. Plaintiff provides no
reason for the delay in bringing a claim for constructive
discharge under the MHRA other than its discovery “by
new counsel.” Plaintiff alleges neither a change in the
law nor discovery of new facts justifying amendment at this
time. See Hartis v. Chicago Title Ins. Co., 694 F.3d
935, 948-49 (8th Cir. 2012). Nor does Plaintiff provide any
reason he could not have alleged the claim earlier. See
Freeman v. Busch, 349 F.3d 582, 589 (8th Cir. 2003)
(finding district court properly denied the motion to amend
complaint where it was filed ten months after the court
entered the scheduling order and seven weeks before the close
of discovery and where plaintiff failed to provide a reason
why punitive damages could not have been alleged earlier).
The Court therefore finds that Plaintiff failed to
demonstrate good cause for amending the petition beyond the
deadline for amendment of pleadings. See, e.g.,
Hartis, 694 F.3d at 948-49; French v. Central
Credit Serv., No. 4:16-CV-1654-RWS, 2017 WL 3105848, at
*2 (E.D.Mo. Sept. 20, 2017).
the Court were to consider the merits of Plaintiff's
motion under Rule 15's more lenient amendment standard,
the motion fails due to futility. See Geier v. Missouri
Ethics Comm'n, 715 F.3d 674, 678 (8th Cir.
2013) (proposed amendment properly denied where it was
futile). A proposed amended complaint is futile if it
“could not withstand a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure[.]”
Cornelia I. Crowell GST Trust v. Possis Med., Inc.,
519 F.3d 778, 782 (8th Cir. 2008).
action filed under the MHRA must be filed ‘no later
than two years after the alleged cause occurred or its
reasonable discovery by the alleged injured
party.'” Noel v. AT&T Corp., 936
F.Supp.2d 1084, 1091 (E.D.Mo. 2013) (quoting Mo. Rev. Stat.
§ 213.111.1). “This statute of limitation is
strictly construed.” Swartzbaugh v. State Farm Ins.
Cos., 924 ...