United States District Court, D. Columbia.
For KENNETH E. BARNES, SR., Plaintiff: James J. Fournier, LEAD ATTORNEY, LAW OFFICE OF JAMES FOURNIER, Washington, DC.
For DISTRICT OF COLUMBIA, Defendant: Steven J. Anderson, OFFICE OF ATTORNEY GENERAL FOR DC, Washington, DC.
BERYL A. HOWELL, United States District Judge.
The plaintiff, Kenneth Barnes, commenced this action in the Superior Court for the District of Columbia (" D.C. Superior Court" ), against his former employer, the District of Columbia, claiming that the defendant's Department of Youth Rehabilitation Services (" DYRS" ) engaged in conduct that violated Title VII of the Civil Rights Act of 1964 (" Title VII" ), as amended, 42 U.S.C. § § 2000e et seq. , the Americans With Disabilities Act (" ADA" ), 42 U.S.C. § § 1201 et seq. , and other local statutory and common laws. See generally Compl., ECF No. 1-2. Following removal to this Court, the defendant moved to dismiss, and the plaintiff moved to amend, the complaint. See Def.'s Mot. Partially Dismiss Pl.'s Compl. & Partial Summ. J. (" Def.'s Mot. Dismiss" ), ECF No. 4; Pl.'s Consol. Mot. Leave File Am. Compl. & Remand Action (" Pl.'s Mot." ), ECF No. 5. The plaintiff also seeks remand of the case to D.C. Superior Court, if the requested leave to amend is granted. Pl.'s Mot. at 2. For the reasons set out below, the plaintiff's motion to amend and remand is granted and his federal claims are dismissed with prejudice.
According to the complaint, the plaintiff worked as a Program Support Specialist at DYRS from January 2012 until " the loss of his job," on an unspecified date. Compl. ¶ ¶ 9, 75. 95, 105. He initiated this suit alleging in seven claims that the DYRS failed to accommodate his disability ( i.e., legal blindness) in violation of the ADA, Compl. ¶ ¶ 66 --76 (" Count I" ), and the District of Columbia Human Rights Act of 1977 (" DCHRA" ), D.C. Code § § 2-1401.01 et seq. , Compl. ¶ ¶ 86-96 (" Count III" ); discriminated against him on account of his disability, in violation of the ADA, Compl. ¶ ¶ 77-85 (" Count II" ), and the DCHRA, Compl. ¶ ¶ 97-106 (" Count IV" ); created a hostile work environment in violation of Title VII, Compl. ¶ ¶ 107-110 (" Count V" ); retaliated against him for protesting DYRS' failure to accommodate him in violation of Title VII, Compl. ¶ ¶ 111-117 (" Count VI" ); and retaliated against him for making disclosures about DYRS' operations, in violation of the District of Columbia Whistleblower Protection Act, D.C. Code § § 1-615.51 et seq. , Compl. ¶ ¶ 118-124 (" Count VII" ).
Following removal of this case to this Court, pursuant to 28 U.S.C. § 1331, the defendant moved to dismiss all seven counts of the plaintiff's complaint or, alternatively, for partial summary judgment on Counts I--III and VI--VII. See Def.'s Mot. Dismiss at 12. The plaintiff submitted no opposition to the defendant's motion but, instead, fifty-one days after the filing of the defendant's motion to dismiss and over a month after the deadline for filing any opposition, moved for leave to amend his complaint to remove all causes of action arising under federal law and to remand the remaining claims arising under local statutory or common law to D.C. Superior Court. See Pl.'s Mot. In response, the defendant has consented to the plaintiff's
motion to amend the complaint and remand the suit on the condition that the plaintiff's federal claims are dismissed with prejudice. Def.'s Opp'n Pl.'s Mot. Leave File Am. Compl. & Remand (" Def.'s Opp'n" ) at 2, ECF No. 6. The plaintiff opposes this condition. Pl.'s Reply Br. Supp. Pl.'s Mot. Leave File Am. Compl. & Remand Action (" Pl.'s Reply" ) at 1, ECF No. 7; Pl.'s Suppl. Br. Further Supp. Pl.'s Consol. Mot. Leave File Amend. Compl. & Remand Action (" Pl.'s Suppl. Br." ) at 1, ECF No. 8.
In light of the dispute between the parties as to whether the federal claims should be dismissed with prejudice, particularly in the context of the plaintiff's failure to file any timely opposition to the defendant's motion to dismiss, the Court directed the plaintiff to show cause why the defendant's motion to dismiss should not be granted as conceded, and why the plaintiff's motion to amend the complaint should not be granted on the condition that the withdrawn federal claims are dismissed with prejudice. See May 6, 2014 Minute Order. The plaintiff filed a timely response to the Court's Minute Order urging that the Court " can and should" resolve the plaintiff's motion to amend before resolving the defendant's motion to dismiss despite the untimely filing of the motion to amend. Pl.'s Resp. Order Show Cause (" Pl.'s Resp. OTSC" ) at 3, ECF No. 9. The plaintiff further indicated that although he " does not anticipate bringing his federal claims a second time before the District of Columbia Superior Court," he nevertheless " should not be foreclosed from re-alleging federal violations should discovery warrant." Id.
The defendant's pending motion to dismiss, with prejudice, the federal claims and the plaintiff's pending consolidated motions to amend the complaint and remand the action are now ripe for resolution.
II. LEGAL STANDARD FOR AMENDMENT TO COMPLAINT
Federal Rule of Civil Procedure 15 provides that " [a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15(a)(1). " In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave," which " [t]he court should freely give  when justice so requires." Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (" Rule 15(a) declares that leave to amend 'shall be freely given when justice so requires.'" ); Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003, 321 U.S. App.D.C. 385 (D.C. Cir. 1996), cert. denied, 520 U.S. 1197, 117 S.Ct. 1553, 137 L.Ed.2d 701 (1997) (holding that " leave to amend should be freely given unless there is a good reason, such as futility, to the contrary" ); Norris v. Salazar, 885 F.Supp.2d 402, 414 (D.D.C. 2012), aff'd, No. 12-5288, 2013 WL 1733645 (D.C. Cir. Apr. 10, 2013).
A complaint is a pleading to which a responsive pleading is required. Fed.R.Civ.P. 7(a)(2). Thus, under Rule 15(a)(1)(B), the plaintiff has an absolute right to amend the complaint at any time from the moment the complaint is filed until 21 days after the earlier of the filing of a responsive pleading or a motion under Rule 12(b), (e), or (f). Villery v. District of Columbia, 277 F.R.D. ...