United States District Court, District of Columbia
E. BOASBERG United States District Judge.
se Plaintiff Michael Bullock alleged in his original
Complaint that his employer, Defendant American Security
Programs, Inc., had breached a settlement agreement with him
and his union by failing to help him get a job as a security
guard at one of its worksites. In a prior Memorandum Opinion,
this Court held that such a breach-of-contract claim was
preempted by federal labor law - specifically, the Labor
Management Relations Act - but it permitted Bullock to
proceed under § 301 of that statute. See Bullock v.
Am. Security Program, Inc., 2016 WL 6459556 (D.D.C. Oct.
31, 2016). He now moves to amend his Complaint to add counts
for invasion of privacy, negligent maintenance of personnel
records, and wrongful discharge. As ASP correctly points out
that none of these proposed claims passes muster, the Court
will deny the Motion as futile.
the prior Opinion lays out in detail the history of
Bullock's employment dispute with ASP, only a brief recap
is necessary here. ASP suspended his employment at a Federal
Protective Service worksite because he lacked an active
"suitability determination" or clearance.
Id. at *1. After Plaintiff grieved that suspension
with his Union -the United Government Security Officers of
America International Union - ASP settled the matter by
agreeing to assist him in finding work while his clearance
was pending. Id. at *2. His pleadings implied that,
at some subsequent point, he was terminated and never placed
at any worksite. Id.
thus filed this action; although his Complaint was very
abbreviated, see ECF No. 1-1, he fleshed out the facts in
opposing ASP's first motion to dismiss. See ECF
No. 8. In denying that first motion, the Court initially
determined that Plaintiffs cause of action for breach of
contract was preempted by Section 301 of the LMRA.
Bullock, 2016 WL 6459556, at*3. Concluding that
Bullock had nonetheless stated a plausible right to relief
under that provision, the Court allowed his suit go to
forward, construing it as a § 301 claim. Id. at
*4. After a scheduling conference took place, Bullock brought
the instant Motion seeking to add three more counts to his
Complaint. See ECF No. 19.
first two - invasion of privacy and negligent maintenance of
personnel records -stem from the same additional facts.
Plaintiff alleges that on July 25, 2013, Deshawn Thornton,
the Chief Shop Steward for the Union, wrote to an ASP
executive seeking records relating to Bullock. See
Id. at 2 & Exh. 2. A week later, Thornton
discovered that Plaintiffs "entire personnel file was
left unattended and unsecured on a table located at an ASP
worksite." Id., Exh. 3 (Affidavit of Deshawn
Thornton). "The table is located in a very common area[,
] which is frequently used by other staff members. The table
is also regularly used as a lunch table. Mr. Bullock's
entire personnel file was noticed on this table during
regular business hours." Id. There is no
allegation that anyone actually looked at the contents.
third proposed addition is a count for wrongful termination.
The facts he sets forth in support are not entirely pellucid.
He alleges that the settlement agreement reached after his
grievance "required specific training for anon-FPS site
in Maryland[, ] which plaintiff interviewed for with Mr. Rick
Lewis[, ] an ASP official. After plaintiff completed the
training, the decision-making officials with ASP became
shockingly unavailable. Leaving Plaintiff with no
remedy." Mot. at 3. In addition, "ASP could not
show proof that the necessary paperwork was forwarded to the
government on behalf of plaintiff as they repeatedly
claimed." Id. Bullock indicates that he was
"eager to move forward on [a non-FPS] worksite, "
but that ASP somehow "returned plaintiffs [necessary]
handgun permit to the Maryland state police, " leading
to its revocation. Id. at 4. Bullock alleges that he
"has never received any notification as to the reason
for his termination." Id.
opposes Bullock's proposed amendment on the ground that
none of the three additional counts is hardy enough to
survive a motion to dismiss.
plaintiff may amend his complaint once as a matter of course
within 21 days of serving it or within 21 days of the filing
of a responsive pleading. See Fed.R.Civ.P. 15(a)(1).
Otherwise, he must seek consent from the defendant or leave
from the Court. The latter "should [be] freely give[n] .
. . when justice so requires." Fed.R.Civ.P. 15(a)(2). In
deciding whether to grant leave to file an amended complaint,
courts may consider "undue delay, bad faith or dilatory
motive on the part 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." Foman v.
Davis, 371 U.S. 178, 182 (1962). In this Circuit,
"it is an abuse of discretion to deny leave to amend
unless there is sufficient reason." Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).
Furthermore, under Rule 15, "the non-movant generally
carries the burden in persuading the court to deny leave to
amend." Nwachukwu v. Karl, 222 F.R.D. 208, 211
clear, however, that amendment should not be permitted if it
would be futile. In other words, if the new causes of action
would still be deficient notwithstanding the proposed
amendment, courts need not grant leave. See In re
Interbank Funding Corp. Securities Litigation, 629 F.3d
213, 218 (D.C. Cir. 2010) ("[A] district court may
properly deny a motion to amend if the amended pleading would
not survive a motion to dismiss.") (citing
Foman, 371 U.S. at 182, for proposition that
'"futility of amendment' is permissible
justification for denying Rule 15(a) motion"); James
Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.
1996) ("Courts may deny a motion to amend a complaint as
futile ... if the proposed claim would not survive a motion
to dismiss.") (citations omitted).
opposing amendment here, ASP contends that each count is
fatally infirm, but for different reasons. The Court thus
considers each separately. As it ultimately denies Plaintiff
s Motion, it need not also address Bullock's failure to
comply with Local Civil Rule 15.1, which requires that a
motion to amend "be accompanied by an original of the
proposed pleading as amended."