United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE
motions are before the court.
State of Oklahoma, ex rel. the Board of Regents of
the University of Oklahoma (the University) moves for
dismissal of the first cause of action alleged in the amended
complaint. Doc. no. 21. Plaintiff filed a response brief,
objecting to dismissal. Doc. no. 23. The University filed a
reply brief. Doc. no. 26.
Plaintiff moves for leave to file a second amended complaint.
Doc. no. 22. The University filed a response brief, objecting
to the motion. Doc. no. 24. Plaintiff filed a reply brief.
Doc. no. 25 (entitled as a response to the University's
reasons stated in this order, both motions will be granted.
University's Motion to Dismiss
first cause of action alleges a first amendment retaliation
claim against the University under 42 U.S.C. § 1983.
(The University is the only defendant with respect to this
claim.) The University, as an arm of the State of Oklahoma,
asks the court to dismiss it from this claim based on
eleventh amendment immunity. Because this is an immunity
argument, the University seeks dismissal under Rule 12(b)(1),
Fed. R. Civ. P., for lack of jurisdiction. The University
also asks the court to dismiss it from the first cause of
action under Rule 12(b)(6), Fed. R. Civ. P., arguing that it
is not a “person” within the meaning of §
response brief makes no arguments which contest the
correctness of the University's immunity argument, and
the court finds that plaintiff has effectively conceded that
argument. The motion to dismiss is GRANTED
on that basis. The State of Oklahoma, ex rel. University of
Oklahoma Board of Regents is hereby
DISMISSED without prejudice from the first
cause of action of the amended complaint. Rule 12(b)(1),
Fed.R.Civ.P. Given that result, the court will not address
the University's Rule 12(b)(6) argument.
Plaintiff's Motion to Amend
September 12, 2019, the court entered a scheduling order
which set an October 12, 2019 (October 15, 2019) deadline for
motions to amend. Doc. no. 18, ¶ 2. On November 18,
2019, plaintiff moved for leave to file a second amended
complaint. Because the time for amendments had expired when
plaintiff moved to amend, the standard which governs
plaintiff's motion is established by Rule 16(b)(4),
Fed.R.Civ.P. Husky Ventures, Inc. v. B55 Investments,
Ltd., 911 F.3d 1000, 1019 (10th Cir. 2018).
Rule 16(b)(4) permits amendments only for good cause and with
the judge's consent. Id. In practice, this
standard requires the movant to show the scheduling deadlines
could not be met despite the movant's diligent efforts.
support of her motion, plaintiff acknowledges that the
amended complaint (doc. no. 25, the currently operable
version of the complaint) includes certain errors which she
seeks to rectify by another amendment. Plaintiff explains
that the amended complaint alleged her first amendment claim
against the “Board, its agents, or its officers,
” instead of against Gallogly and Harper personally, as
it should have done. Doc. no. 22, p. 3. Plaintiff states that
she also made an error in the amended complaint when she
removed Gallogly and Harper from the caption. Id.
Plaintiff's proposed second amended complaint would
correct these errors by adding Gallogly and Harper to the
caption as named defendants and by clearly making them
defendants, in their individual capacities, for purposes of
the first amendment claim. Plaintiff argues that these
changes would be consistent with the relevant allegations in
the original version of the complaint (doc. no. 1, p. 15),
which alleged the first amendment claim against Harper and
Gallogly in their individual capacities. In addition to
seeking leave to amend in order to correct her errors,
plaintiff states that if she is not given leave to amend, she
will necessarily file another lawsuit in which she will
re-allege her original claims against Gallogly and Harper in
their individual capacities.
the more rigorous standard of Rule 16(b)(4) applies at this
stage (as opposed to the more liberal standard of Rule 15),
the court will allow the amendment for several reasons.
First, diligence is a focus of Rule 16(b)(4). Here, there has
been no lack of diligence on plaintiff's part. Assuming
plaintiff realized (or could have realized) her errors when
the University filed its motion to dismiss, plaintiff moved
for leave to amend less than three weeks after the motion to
dismiss was filed. Second, the original version of the
complaint included Gallogly and Harper as individual
defendants to the first amendment claim. Thus, although no
claims are stated against these individuals in the current
version of the complaint, Gallogly and Harper are not new to
this action. Third, this action is not set for trial until
the September 8, 2020 docket. Fourth, as a matter of judicial
economy, there is no reason to put the parties (and the
court) through the procedural steps involved in the filing of
another action against Gallogly and Harper, which would be
followed by a transfer of that new action to the undersigned
and a consolidation of that new action with this existing
careful consideration, plaintiffs motion for leave to amend
is GRANTED. Plaintiff may file her proposed
second amended complaint within SEVEN days
of the date of this order. If she does not file a timely and
compliant second amended complaint or obtain an extension of
time within which to do so, the amended complaint (doc. no.
19) will remain the ...