The opinion of the court was delivered by: HARRIS
On October 10, 1997, the Court of Appeals issued a per curiam order which affirmed in part and reversed in part this Court's dismissal of plaintiff's action.
The Court of Appeals remanded Counts I and II for further proceedings. Count I alleges that defendant, plaintiff's employer, died against her in violation of the Rehabilitation Act and the Americans with Disabilities Act either because of her record of disabilities or its misperception that she was unable to work due to a disability. Count II alleges that defendant discriminated against her on the basis of her sex and race in violation of Title VII.
Currently before the Court are defendant's "Motion To Amend Statement in Prior Reply and To Renew a Motion for Summary Judgment Based on a 90-Day Statute of Limitations" ("motion to amend and renew"), plaintiff's opposition, and defendant's reply. Defendant moves the Court to: (1) permit defendant to amend the statement in its July 12, 1996, reply to plaintiff's opposition to defendant's motion for summary judgment regarding the timeliness of plaintiff's filing of suit; (2) renew its May 24, 1996, motion for summary judgment on the ground that plaintiff's action is time-barred because she failed to file her complaint within the 90-day statute of limitations set forth in 42 U.S. § 2000e-5(f)(1); and (3) grant summary judgment for defendant on that ground.
Plaintiff contends that defendant's motion should be denied because (1) defendant affirmatively waived the defense that the complaint was not timely filed, and (2) defendant has presented no evidence supporting its contention that plaintiff's complaint was not filed within the 90-day period of limitation. Defendant counters that it expressly asserted a statute of limitations defense in its answer and that its subsequent withdrawal of that defense was based upon a misstatement that was made in plaintiff's opposition to defendant's motion for summary judgment and its own consequent miscalculation of the time period. Defendant argues that, should amendment be permitted, plaintiff's own representations support the conclusion that she failed to file her action within the 90-day period of limitation.
The Court grants defendant's motion to amend its reply and to renew its motion for summary judgment. The Court also grants defendant's renewed motion for summary judgment on the ground that plaintiff's suit is time-barred.
I. Amendment and Renewal of Defendant's Summary Judgment Pleadings
The Court first addresses plaintiff's contention that amendment of defendant's reply to plaintiff's opposition to defendant's summary judgment motion should not be permitted because defendant had waived the 90-day statute of limitations argument prior to the filing of its reply. Plaintiff contends that defendant failed to assert this defense in its answer to the complaint and thus waived it at that early stage of the case. Plaintiff bases this contention on defendant's admission in its answer that the Court has jurisdiction over the action pursuant to Section 81 of the WMATA Compact and its statement that it was without knowledge or information sufficient to form a belief as to the truth of plaintiff's allegation that her administrative remedies had been exhausted. Defendant contends that its answer raised any applicable statute of limitations as its twelfth defense. Defendant also notes that the statute of limitations defense was specifically supported by defendant's denial of plaintiff's assertion that plaintiff's suit was filed within 90 days of plaintiff's receipt of the EEOC's right-to-sue letter. The Court concludes that defendant sufficiently pleaded a statute of limitations defense in its answer to avoid waiver of the argument that plaintiff's action is time-barred.
Accordingly, the Court turns to the question of whether defendant's subsequent concession of this defense in its reply to plaintiff's opposition to defendant's motion for Summary judgment may now be withdrawn. Defendant contends that it conceded that plaintiff had filed her action within the required 90-day on the basis of plaintiff's assertion in her opposition to the motion to dismiss that February 3, 1995 (the date on which the complaint was filed) was the 90th day after November 4, 1994 (the date on which plaintiff asserted in her affidavit that she had received the EEOC's right-to-sue letter). When recalculating the number of days between November 4, 1994, and February 3, 1995, after receiving plaintiff's opposition to defendant's motion for summary judgment, defense counsel miscalculated the number of days and reached the same conclusion as plaintiff. Both parties now recognize that February 3, 1995, was actually the 91st day after November 4, 1994.
Because the 90-day statute of limitations defense was withdrawn by defendant in its reply, this Court did not consider it in its opinion dismissing plaintiff's action. The Court of Appeals declined to address the issue, stating that "on appeal, WMATA seeks for the first time to withdraw [the concession of the 90-day statute of limitations defense] . . . but the time for noticing such an error has passed." Simpkins v. WMATA, 1997 U.S. App. LEXIS 34629, 1997 WL 702349, *6 (D.C. Cir. 1997) (unpublished). Although the Court of Appeals rejected defendant's motion for rehearing regarding the application of the 90-day statute of limitations, Judge Williams noted that the Court of Appeals' decision "did not address, one way or the other, whether the District Court may or may not, on motion, grant leave for WMATA to amend the statement in its reply to the opposition for summary judgment regarding the timeliness with which plaintiff filed this action in light of the 90-day limitations period." (Nov. 26, 1997, Order denying rehearing.) This Court concludes that the Court of Appeals refused to consider this issue merely because it was raised for the first time on appeal, but did not reject the argument on the merits.
Federal Rule of Civil Procedure 15(a) permits a defendant to move for leave to amend its pleading and provides that such "leave shall be freely given when justice requires." See Harris v. Secretary, U.S. Dept. of Veterans Affairs, 326 U.S. App. D.C. 362, 126 F.3d 339, 341 (D.C. Cir. 1997). This Court, exercising the discretion conferred upon it by Rule 15(a), must "determine the propriety of amendment on a case by case basis using a generous standard." Id.; see also Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). Leave to amend should be granted "'in the absence of any apparent or declared reason -- such as undue delay, bad faith, dilatory motive on the party of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Atchinson v. District of Columbia, 315 U.S. App. D.C. 318, 73 F.3d 418, 425-26 (D.C. Cir. 1996) (quoting Foman, 371 U.S. at 182).
Defendant argues that leave for such an amendment should be given because its withdrawal of the 90-day statute of limitations defense was prompted by its reliance on a misstatement of fact by plaintiff and no prejudice would be caused plaintiff by an amendment of the reply. Plaintiff contends that defendant "intentionally relinquished or abandoned [its] affirmative defense" regarding the 90-day statute of limitations and, thus, "no cure is available under Rule 15." Harris, 326 U.S. App. D.C. 362, 126 F.3d 339 at 343; n.2 Plaintiff also contends she would be unfairly prejudiced by the dismissal of this action after three years Of prosecution on the ground that it was untimely filed by one day. See Gordon v. National Youth Work Alliance, 218 U.S. App. D.C. 337, 675 F.2d 356, 359 (D.C. Cir. 1982) (stating that the 90-day statute of limitations is subject to the doctrine of equitable tolling).
The Court concludes that justice requires that the Court permit defendant to amend its reply to plaintiff's opposition to defendant's motion for summary judgment. Because defendant's withdrawal of its statute of limitations defense was based upon an apparently inadvertent misstatement of fact by plaintiff and defendant's consequent miscalculation of the limitations period, the Court does not consider defendant's prior withdrawal of the defense to have constituted an intentional waiver barring amendment. See Harris, 126 F.3d at 343, n.2.
Furthermore, the Court concludes that the amendment of the reply would not unduly prejudice plaintiff. Plaintiff appears to contend that she would be prejudiced in two ways: (1) by the undue delay caused by the amendment, and (2) by the fact that the reinstatement of the defense might result in the dismissal of her case. Although leave to amend may be denied on the basis of undue delay, "consideration of whether delay is undue . . . should generally take into account the actions of other parties and the possibility of any resulting prejudice." Atchinson, 73 F.3d at 426 (citing Sinclair v. Kleindienst, 207 U.S. App. D.C. 155, 645 F.2d 1080 1085 (D.C. Cir 1981) and Hayes v. New England Millwork Distribs., Inc. 602 F.2d 15, 19 (1st Cir. 1979) (noting that "courts may not deny an amendment solely because of delay and without consideration of the prejudice to the opposing party.")). As discussed above, plaintiff's initial error in calculation contributed at least in part to defendant's subsequent miscalculation and defendant's current need for an amendment. Furthermore, plaintiff has asserted no prejudice -- such as the unavailability of evidence -- resulting from the delay in defendant's assertion of the statute of limitations defense other than the fact that such amendment might result in the dismissal of her action. Common sense dictates that the fact that the proffered defense might be successful does not constitute cognizable prejudice under Rule 15(a) since one of the grounds for denying amendment is futility -- that the amendment would have no practical effect. Atchinson, 73 F.3d at 425. The Court concludes that the grant of defendant's motion to amend would not result in undue prejudice to plaintiff. Accordingly, the Court grants defendant's motion for leave to amend its reply to plaintiff's opposition to defendant's motion for summary judgment and to renew its July 12, 1996, motion for summary judgment on the ground that plaintiff's action is barred by the 90-day statute of limitations. See Fed. R. Civ. P 15(a); Harris, 126 F.3d at 341.
II. Defendant's Motion for Summary ...