Onyewuchi v. Gonzalez , 267 F.R.D. 417 ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MORRIS I. ONYEWUCHI, :
:
Plaintiff, : Civil Action No.: 08-0360 (RMU)
:
v. : Re Document No.: 20
:
EMILIO T. GONZALEZ :
Director, U.S. Citizenship and Immigration :
Services, :
:
Defendant. :
MEMORANDUM OPINION
DENYING THE PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE FIRST AMENDED
COMPLAINT AND REOPEN DISCOVERY; GRANTING THE DEFENDANT LEAVE TO
SUPPLEMENT ITS DISPOSITIVE MOTION TO ADDRESS THE DISPARATE
IMPACT CLAIMS RAISED IN THE FIRST AMENDED COMPLAINT
I. INTRODUCTION
This case comes before the court on the plaintiff’s motion for leave to amend the first
amended complaint and to reopen discovery. The pro se plaintiff, an African-American attorney
and naturalized citizen originally from Nigeria, alleges that the U.S. Citizenship and Immigration
Services (“USCIS”) discriminated against him based on his race and national origin when it did
not select him for a position for which he had applied. Two months after the close of discovery,
the plaintiff filed this motion for leave to amend his complaint to add a claim that USCIS’s
employment practices had a disparate impact on foreign-born and African-American applicants.
The plaintiff also requests that the court reopen discovery. The defendant opposes the motion on
the grounds that granting the requested relief at this stage of the proceedings would prejudice the
defendant and that the proposed amendment would be futile.
Because the deadline for amending the pleadings has long since passed, and because the
plaintiff was plainly aware of the information underlying his proposed amended claims well
before filing this motion for leave to amend, the court denies his motion for leave to amend and
his related request to reopen discovery. The court, however, notes that the current operative
complaint sufficiently put the defendant on notice of the disparate impact claims the plaintiff
sought to add through his proposed amended complaint. Accordingly, the court will grant the
defendant an opportunity to supplement its pending dispositive motion to address those claims.
II. FACTUAL & PROCECURAL BACKGROUND 1
The plaintiff joined the Immigration and Naturalization Service (“INS”) as an attorney in
2002. Proposed 2d Am. Compl. ¶ 3. In 2003, the INS was abolished, and its responsibilities
transferred to two agencies within the Department of Homeland Security: U.S. Immigration and
Customs Enforcement (“USICE”) and USCIS. Id. ¶¶ 3-4. The plaintiff was assigned to USICE
in 2003. Id. ¶ 5.
On May 6, 2004, USICS announced a vacancy for an Associate Counsel position in its
Dallas, Texas office, for which the plaintiff immediately applied. Id. ¶¶ 7-9. Approximately two
weeks later, Judith Patterson and Catherine Muhletaler, the two recommending officials for the
position, interviewed the plaintiff via telephone. Id. ¶¶ 10-12, 23. On June 10, 2004, Patterson
e-mailed the plaintiff to notify him that he had not been selected for the position. Id. ¶ 13.
Patterson stated that familiarity with the Dallas area and academic credentials were among the
1
For the purposes of ruling on this motion, the court assumes that the plaintiff's allegations are
true. See Atherton v. D.C. Office of the Mayor, 567 F.3d 673, 681 (D.C. Cir. 2009) (observing
that “[w]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint”) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)).
2
selection criteria used to assess candidates, but did not inform the plaintiff specifically why he
had not been chosen. Id. ¶¶ 14, 20, 32.
On October 20, 2004, the plaintiff filed an Equal Employment Opportunity (“EEO”)
complaint with the USCIS, alleging that it had discriminated against him on the basis of race,
disability2 and national origin by not selecting him for the Associate Counsel position. See
generally Def.’s Opp’n to Pl.’s 2d Mot. to Amend (“Def.’s Opp’n”), Ex. 4. After USCIS denied
the plaintiff’s claim on May 11, 2006, the plaintiff appealed. Proposed 2d Am. Compl. ¶ 40. On
December 4, 2007, the Equal Employment Opportunity Commission (“EEOC”) denied the
appeal and notified the plaintiff of his right to sue. Id.
The plaintiff filed a complaint in this court on February 29, 2008. See generally Compl.
Pursuant to Federal Rule of Civil Procedure 15(a), the plaintiff amended his complaint as a
matter of right on March 7, 2008. See generally 1st Am. Compl. At a status hearing held on
September 9, 2008, the court ordered that the parties submit any motions to further amend the
pleadings by October 8, 2008. See Minute Entry (Sept. 9, 2008). Additionally, the court set a
discovery deadline of January 7, 2009, which was subsequently extended to January 21, 2009.
See id.; Minute Order (Jan. 4, 2009).
Prior to the close of discovery, a dispute arose concerning whether the defendant was
required to produce documents concerning all of the approximately 120 applicants who had
applied for the position. Def.’s Opp’n at 5. Ultimately, the court ordered the defendant to
produce these documents, which were provided to the plaintiff on February 25, 2009. Id. at 6.
On March 6, 2009, the plaintiff filed this motion requesting leave to amend his first
amended complaint. See generally Pl.’s 1st Mot. to Amend. The court denied the motion for
2
The plaintiff has not asserted claims for disability discrimination in this action. See generally
Compl.; 1st Am. Compl.
3
failure to comply with Local Civil Rule 15.1, see Minute Order (Mar. 6, 2009), which provides
that motions to amend or correct pleadings “shall be accompanied by an original of the proposed
pleading as amended,” LCvR 15.1. One week later – a week before dispositive motions were
due and nearly eight weeks after discovery had closed – the plaintiff filed a second motion for
leave to amend the first amended complaint, see Pl.’s 2d Mot. to Amend (“Pl.’s Mot.”), which
the defendant opposed, see generally Def.’s Opp’n. 3
Through this motion for leave to amend, the plaintiff seeks to add claims of disparate
impact to the disparate treatment claims asserted in the first amended complaint. See generally
Pl.’s Mot. Specifically, the plaintiff seeks to add a claim that requiring applicants to have
familiarity with the Dallas area had a discriminatory adverse impact on foreign-born applicants.
Proposed 2d Am. Compl. ¶ 85. The plaintiff also seeks to add a claim that the defendant’s use of
the U.S. News and World Report law school rankings as a criterion in determining applicants’
academic credentials had a disparate impact on graduates of historically black law schools, such
as the plaintiff. Id. ¶ 44. In addition, the plaintiff requests that the court reopen discovery. The
court now turns to the applicable legal standard and the parties’ arguments.
3
On March 23, 2009, while the plaintiff’s second motion for leave to amend was pending, the
defendant filed a motion for judgment on the pleadings or, in the alternative, for summary
judgment on the plaintiff’s first amended complaint. See generally Def.’s Mot. for J. on the
Pleadings or, in the Alternative, for Summ. J. (“Def.’s Mot.”). The court ultimately suspended all
briefing of the defendant’s motion pending resolution of the plaintiff’s motion for leave to amend.
Minute Order (May 5, 2009).
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III. ANALYSIS
A. The Court Denies the Plaintiff’s Motion for Leave to Amend the
First Amended Complaint and Reopen Discovery
1. Legal Standard for a Motion for Leave to Amend the Complaint
Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a
matter of course within twenty-one days of serving it or, if the pleading is one to which a
responsive pleading is required, twenty-one days after service or a responsive pleading or
twenty-one days after service of a motion under Rule 12(b), (e) or (f), whichever is earlier. FED.
R. CIV. P. 15(a). Otherwise, a plaintiff may amend the complaint only by leave of the court or by
written consent of the adverse party. See id. The grant or denial of leave lies in the sound
discretion of the district court. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). The
court must, however, heed Rule 15’s mandate that leave is to be “freely given when justice so
requires.” Id.; see also Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C., 148 F.3d 1080,
1083 (D.C. Cir. 1998). Indeed, “[i]f the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim
on the merits.” Foman, 371 U.S. at 182. Denial of leave to amend therefore constitutes an abuse
of discretion unless the court gives sufficient reason, such as futility of amendment, undue delay,
bad faith, dilatory motive, undue prejudice or repeated failure to cure deficiencies by previous
amendments. Id.; Caribbean Broad. Sys., 148 F.3d at 1083.
Denial of leave to amend based on futility is warranted if the proposed claim would not
survive a motion to dismiss. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.
1996). An amended complaint is futile “if it merely restates the same facts as the original
complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a
legal theory or could not withstand a motion to dismiss.” Robinson v. Detroit News, Inc., 211 F.
5
Supp. 2d 101, 114 (D.D.C. 2002) (citing 3 FED. PRAC. 3d § 15.15[3]); Willoughby v. Potomac
Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996) (affirming the district court’s denial of
leave to amend given the “little chance” that the plaintiff would succeed on his claim).
2. The Plaintiff Was Aware of the Basis of His Proposed Amended Claims
Long Before Filing this Motion
Acknowledging that this motion comes long after the court-imposed deadline for motions
to amend, the plaintiff argues that the defendant failed to disclose the evidence giving rise to his
proposed disparate impact claims until well after that deadline had passed. Pl.’s Mot. ¶ 14.
Specifically, the plaintiff contends that the defendant withheld e-mails sent to rejected applicants
indicating that immigration law experience was a determinative factor in the hiring process. Id. ¶
5. Additionally, the plaintiff asserts that the defendant withheld e-mails indicating that the
interviewer had “a favorable bias towards University of Texas graduates.” Id. ¶ 10. The plaintiff
states that after receiving this additional evidence, he promptly moved for leave to amend his
complaint to add claims of disparate impact. See id. ¶¶ 1-13. The plaintiff contends that any
prejudice the defendant suffers is a result of its failure to disclose information. Id. ¶ 14.
Additionally, the plaintiff maintains that granting leave to amend would not be futile, insisting
that the proposed amended complaint asserts valid claims based on this newly discovered
information. Id. ¶ 15.
The defendant responds that permitting the plaintiff to amend the complaint and reopen
discovery at this stage would result in undue prejudice because the defendant would be required
to assemble and analyze new evidence, engage in further discovery and amend its already-filed
motion to dismiss. Def.’s Opp’n. at 12-13. The defendant also argues that the “new” evidence
on which the plaintiff bases his proposed claim was already known by the plaintiff long before
he filed this motion for leave to amend. Id. at 7-12. Furthermore, the defendant asserts that the
6
plaintiff’s proposed claim is futile because it fails to state a cognizable claim of disparate impact
and because the plaintiff failed to exhaust his administrative remedies with respect to any
disparate impact claim. Id. at 14-17.
A court “may deny a motion for leave to amend if the amendment would result in delay
or undue prejudice to the opposing party, or if a party had sufficient opportunity to state the
amended claims and failed to do so.” Equity Group, Ltd. v. Painewebber Inc., 839 F. Supp. 930,
932 (D.D.C. 1993) (citing Anderson v. USAir, Inc., 818 F.2d 49, 57 (D.C. Cir. 1987);
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987)).
Leave to amend is properly denied when the plaintiff was aware of the information underlying
the proposed amendment long before moving for leave to amend the complaint. See De Saracho
v. Custom Food Mach., Inc., 206 F.3d 874, 878 (9th Cir. 2000) (observing that “[w]here the
party seeking amendment knows or should know of the facts upon which the proposed
amendment is based but fails to include them in the original complaint, the motion to amend may
be denied”) (quoting Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982));
Duggins v. Steak ’N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999) (affirming the district court’s
denial of leave to amend because the discovery deadline had already passed and because the
plaintiff “was obviously aware of the basis of the claim for many months, especially since some
underlying facts were made a part of the complaint”); Anderson, 818 F.2d at 57 (concluding that
the district court did not abuse its discretion in denying a motion for leave to amend the
complaint as the proposed claims were based on facts known to the plaintiff prior to the
completion of discovery); LaPrade v. Abramson, 2006 WL 3469532, at *5 (D.D.C. Nov. 29,
2006) (denying the plaintiff’s motion for leave to amend the complaint as dilatory and unduly
delayed because the plaintiff “knew sufficient facts before the amendment deadline to make the
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claims she now seeks to add”); Yager v. Carey, 910 F. Supp. 704, 731 (D.D.C. 1995)
(concluding that the “plaintiffs [had] been dilatory and . . . unduly delayed their attempt to
amend their complaint because plaintiffs were aware of the facts giving rise to the cause of
action before initially filing the complaint) (citing Sandcrest Outpatient Servs., P.A. v.
Cumberland County Hosp. Sys. Inc., 853 F.2d 1139, 1149 (4th Cir. 1988)); Hollinger-Haye v.
Harrison W./Franki-Denys, 130 F.R.D. 1, 2 (D.D.C. 1990) (denying the plaintiff’s motion for
leave to amend because “the additional counts were based on facts known to the plaintiff prior to
the completion of discovery”).
In this case, it is abundantly clear that the plaintiff was fully aware of the information
underlying his proposed disparate impact claims long before the disclosure of the e-mails on
which he purports to base those claims. Indeed, in his first amended complaint, the plaintiff
alleged that “the use of law school ranking has the effect of excluding all, or a substantial
number of, African-American graduates of Historically Black Colleges and Universities from
employment, because the U.S. News and World Report normally ranks HBCU law schools in the
fourth tier” and that the “unlawful use of ties or familiarity with [Dallas] has the effect of
excluding foreign-born applicants, such as the [p]laintiff, who was born in Nigeria, from
employment.” 1st Am. Compl. ¶ 44(d), (e). The fact that the plaintiff included the information
underlying his proposed disparate impact claims in his first amended complaint undermines his
contention that the proposed claims arose out of information unknown to him until the disclosure
of the defendant’s e-mails in February 2009. 4 Accordingly, the court denies the plaintiff’s
motion for leave to amend and his concomitant request to reopen discovery.
4
Indeed, the plaintiff has failed to explain how the “newly discovered evidence,” comprised of e-
mails in which Patterson stated that immigration law experience was critical for the position and
that she had a favorable bias toward University of Texas Law School graduates, revealed
information giving rise to his disparate impact claims. See generally Pl.’s Mot.
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B. The Court Grants the Defendant Leave to Supplement Its Dispositive
Motion to Address the Disparate Impact Claims Asserted in
the First Amended Complaint
By the same token, the aforementioned allegations in the first amended complaint, which
revealed the plaintiff’s prior awareness of the information underlying his proposed claims,
likewise put the defendant on notice that the plaintiff was asserting disparate impact claims. As
previously noted, in his first amended complaint, the plaintiff clearly alleged that reliance on the
U.S. News & World Report law school rankings had the effect of excluding African-American
graduates of historically black law schools from employment, and that consideration of an
applicant’s ties or familiarity with the Dallas area had the effect of excluding foreign-born
applicants from considerations. Id. ¶ 44(d), (e). In so doing, the plaintiff alleged the existence of
facially neutral employment practices having a disparate impact on protected classes. See
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988) (observing that “disparate
impact” claims concern “facially neutral employment practices that have significant adverse
impact on protected groups”) (emphasis omitted).
The defendant does not squarely address these disparate impact claims in its pending
dispositive motion, see generally Def.’s Mot., presumably because the aforementioned
allegations are subsumed in a single, sprawling count of “National Origin Discrimination,” 1st
Am. Compl. ¶¶ 41-45; see also Gilbert v. Chertoff, 2006 WL 2793169, at *2-3 (D.D.C. Sept. 28,
2006) (concluding that general allegations of unlawful conduct, disparate treatment and
retaliation not stated in separate counts “effectively preclude[d] Defendant from fashioning a
coherent answer to the Complaint”); Klauber v. City of Sarasota, 235 F. Supp. 2d 1263, 1269
(M.D. Fla. 2002) (holding that the complaint did not contain a First Amendment claim, despite
the plaintiff’s argument that the count alleging a Fourteenth Amendment violation encompassed
9
a First Amendment claim, as “[i]t is neither Defendants’, nor this Court’s, duty to play hide-and-
seek with claims that Plaintiff claims might be hidden somewhere within Plaintiff’s complaint”);
5A FED. PRAC. & PROC. § 1324 (observing that “the federal courts consistently have required
separate statements when separate claims are pleaded, notwithstanding the fact that the claims
arose from a single transaction”).
Accordingly, the court will provide the defendant an opportunity to supplement its
pending dispositive motion to address the disparate impact claims raised in the plaintiff’s first
amended complaint. At that time, the court will consider any arguments concerning the absence
of statistical evidence of causation and the plaintiff’s failure to exhaust administrative remedies.
IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiff’s motion to amend the first
amended complaint and reopen discovery and grants the defendant leave to supplement its
pending dispositive motion. An Order consistent with this Memorandum Opinion is separately
and contemporaneously issued this 17th day of March, 2010.
RICARDO M. URBINA
United States District Judge
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