Opinion
Civil No. 02-1902(JAG).
November 30, 2005
MEMORANDUM AND ORDER
On September 23rd, 2005, Magistrate-Judge Camille Velez-Rive issued a Report and Recommendation (RR) to GRANT in part and DENY in part defendant' Motion for Summary Judgment. (Docket No. 131). Specifically, the Magistrate-Judge recommends to deny the Motion as to plaintiff Wanda Vargas-Caban (Vargas-Caban), but to grant it as to co-plaintiffs Arcides Hernandez-Medina (Vargas-Caban's husband), the Hernandez-Vargas conjugal partnership, Arcides Hernandez-Vargas and Ryan Hernandez-Vargas (collectively, "co-plaintiffs"). The RR explains that plaintiffs only claimed jurisdiction pursuant to Title VII of the Civil Rights Act, which provides relief to "employees" and other victims of discrimination, 42 U.S.C. § 2000e(f), but not to relatives of the discriminated individual. Id., at 29.
On September 30th, 2005, co-plaintiffs filed a partial opposition to the RR arguing that "the omission of the supplemental jurisdiction allegation under Section 1367, of Title 28 USCA, to include the state law claims made by plaintiffs Arcides Hernandez, the two minor children and the conjugal partnership is not fatal," since "section 1653 of Title 28 of USCA allows the correction of a complaint to properly allege the jurisdiction of the Court even at the Appellate and Supreme Court level." (Docket No. 132 at 3). Consequently, plaintiffs request leave to amend the Complaint in order to include co-plaintiffs' claims for damages "under the Constitution of the Commonwealth of Puerto Rico regarding human dignity, Article 1802 of the Civil Code of Puerto Rico (31 LPRA 5142) Public Law 100 of 196 [sic] and any other state statute that may grant damages to said plaintiffs." (Docket No. 132, Attch. # 1 at 3).
On November 1st, 2005, the defendant opposed plaintiffs' request for leave to file an amended complaint arguing that: 1) plaintiffs' request violates the Court's Case Management Order; and 2) the proposed amendment would be futile, because co-plaintiffs do not have a cause of action pursuant to either Act No. 100 or the Puerto Rico Constitution. (Docket No. 134). The Court agrees.
Co-plaintiffs essentially ask the Court for leave to add state law causes of action after a Case Management Order ("CMO") has been issued. (Docket No. 31). The Court of Appeals for the First Circuit, as several other courts, has held that Fed.R.Civ.P. 16(b)'s "good cause" standard, rather than Rule 15(a)'s "freely given' standard, governs motions to amend filed after scheduling order deadlines. Steir v. Girl Scouts of America, 383 F.3d 7,12 (1st Cir. 2004); O'Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 154 (1st Cir. 2004). This standard "focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party-opponent." Steir, 383 F.3d at 12. That is, "the Court may extend a scheduling order deadline on a showing of good cause if the deadline cannot reasonably be met despite the diligence of the party seeking the extension." O'Connell, 357 F.3d at 154. As a case progresses, and the issues are joined, the burden on a plaintiff seeking to amend the complaint become more exacting. Steir, 383 F.3d at 12. Where the motion to amend is filed after the opposing party has timely moved for summary judgment, a plaintiff is required to show "substantial and convincing" evidence to justify a belated attempt to amend a complaint. Id.; Resolution Trust Corp. v. Gold, 30 F.3d 251 (1st Cir. 1994).
Hence, the issue is not one under the purview of 28 U.S.C. § 1653, as co-plaintiffs mistakenly aver. Section 1653 allows amendments to the Complaint, in the trial or appellate courts, to properly allege the jurisdiction of the Court. In the present case, the Court has already verified its jurisdiction to entertain the Title VII claims, and co-plaintiffs only purport to add state law causes of action pursuant to supplemental jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379 (1994) (supplemental jurisdiction only exists if there is a case properly before the federal court).
Unlike Rule 15(a)'s "freely given" standard, which focuses mostly on the bad faith of the moving party and the prejudice to the opposing party, see Foman v. Davis, 371 U.S. 178, 182 (1962), Rule 16(b)'s "good cause" standard emphasizes the diligence of the party seeking the amendment. Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998).
In the case at bar, no such diligence was displayed. The original Complaint was filed on June 12th, 2002. On October 21st, 2003, the Court issued a CMO which granted the parties until November 10th, 2003, to amend the pleadings. However, plaintiffs moved to amend the Complaint on September 30th, 2005; that is, more than three years after the filing of the Complaint, and roughly two years after the deadline imposed by the Court in the CMO.
Moreover, the Court notes that on January 14th, 2005, the defendant filed a Motion for Summary Judgment requesting the dismissal of the claims asserted by co-plaintiffs under Title VII. (Docket No. 92). In that Motion, the defendant further alleged that co-plaintiffs failed to plead a cause of action under any state law. Id., at 3. Although plaintiffs filed an opposition to said Motion, (Docket No. 125), they did not oppose defendant's request for dismissal of the co-plaintiffs' claim, or request the amendment of the Complaint to include state law claims. In other words, despite having many opportunities to plead state law causes of action, it is not until the Magistrate-Judge recommended that their claims be dismissed that plaintiffs requested leave to amend the Complaint.
To this, co-plaintiffs simply aver that their failure to invoke state law causes of action was "a bonafide error" that should be treated as a "non fatal omission." (Docket No. 132 at 6). The Court, however, rules that co-plaintiffs' proffered reason is not "good cause" pursuant to Rule 16(b), and does not placate the Court's impression that plaintiffs were not diligently pursuing this litigation. The Court therefore ADOPTS the RR in its entirety and, accordingly, DENIES plaintiffs' "Motion Requesting Permission to Amend the Complaint".
Since the Rule 16(b) analysis is dispositive of the matter at hand, the Court need not entertain defendant's argument that amending the Complaint would be futile in light of co-plaintiffs lack of a cause of action under state law.
IT IS SO ORDERED.