United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER UNITED STATES DISTRICT JUDGE
the court is plaintiff Adam Sanchez's Motion for Leave to
File Amended Complaint (referred to herein as “Motion
to Amend”). (Doc. No. 28.) Sanchez seeks to amend his
Complaint under Rule 15(a)(2) of the Federal Rules of Civil
Procedure to assert new claims for retaliation under the
Uniformed Services Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. § 4311(b), and
conspiracy to interfere with civil rights under 42 U.S.C.
§ 1985(2). Defendant Deloitte Services, LP
(“Deloitte”) opposes the motion. (Doc. No. 30.)
For the reasons set forth herein, the Motion to Amend will be
granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
Sanchez filed the original Complaint initiating this action
on August 7, 2018, asserting a claim for violation of USERRA
and a state law conversion claim. (Doc. No. 1.) He alleges
that he was “at all relevant times” an employee
of defendant Deloitte, having begun his employment in 1999.
Although he does not expressly allege as much in the
Complaint or proposed First Amended Complaint
(“PFAC”), other documentation filed by the
plaintiff in support of his Motion to Amend indicates that he
is no longer employed by Deloitte, having resigned shortly
before filing this lawsuit. (See Doc. No. 29-2
an initial case management conference, the court entered a
Case Management Order on December 5, 2018, establishing,
among other scheduling matters, a May 10, 2019 deadline for
filing motions to amend pleadings. (Doc. No. 15.) Trial was
set for April 7, 2020.
forth in the PFAC attached to the plaintiff's Motion to
Amend, the parties agreed to an early mediation, which was
conducted on February 1, 2019. (Doc. No. 29-1 ¶ 62.)
According to the plaintiff, the gravamen of Sanchez's
claims is that Deloitte discriminated against him in
violation of USERRA by failing to reemploy him in the same
position he had occupied before his employment was
interrupted by his service in the United States Army
Reserves. One of the central points of contention at the
mediation was whether Sanchez was making the same salary as
individuals in the Senior Manager position in which Sanchez
maintains he should have been placed upon his return from
deployment. During the mediation, the plaintiff disclosed
that he was in possession of salary information pertaining to
some Senior Managers, which he claims he obtained legally,
while he was still employed. (Doc. No. 29-1 ¶ 63; Doc.
No. 29, at 2.) He asserts that this information was shared
confidentially only with his counsel, Deloitte, and the
mediator and that it established that the defendant was being
dishonest about Sanchez's comparative salary. (Doc. No.
29-1 ¶ 64; Doc. No. 29, at 2.)
2019, just a month after the expiration of the deadline to
file motions to amend pleadings in this case, Deloitte filed
a lawsuit against Sanchez in Davidson County Chancery Court,
alleging breach of contract and violation of the Tennessee
Personal and Commercial Computer Act of 2003 (“State
Lawsuit”). (Doc. No. 29-1 ¶ 65; Doc. No. 29, at
2.) Deloitte asserts that it learned for the first time
during the mediation in February that the plaintiff had
“improperly accessed and copied confidential
information about other Deloitte employees without
authorization.” (Doc. No. 30, at 1.) Having purportedly
made this discovery, Deloitte filed the State Lawsuit.
Sanchez claims that, rather than “properly defending
the matter in federal court, ” Deloitte retaliated
against him for bringing this USERRA lawsuit by filing the
State Lawsuit. He asserts that the State Lawsuit “lacks
reasonable basis in fact and law.” (Doc. No. 29-1
August 2019, Sanchez filed a motion requesting a second case
management conference, asserting that (1) Deloitte had filed
the State Lawsuit based on facts arising from this lawsuit,
after the deadline for amending pleadings in this case; (2)
Sanchez had filed a motion to dismiss the State
Lawsuit; and (3) since the deadline for pleading
amendments had expired in this case, the plaintiff would be
required to file a third lawsuit unless the Case Management
Order in effect in this case were modified in order to permit
him to amend his Complaint. He therefore sought a second case
management conference and a modification of the previously
established deadlines in order to permit him to file a motion
to amend the complaint. The court granted the motion,
conducted a second case management conference, and granted
the plaintiff leave to file a motion to amend his complaint.
(Doc. Nos. 23-25.) The present motion followed.
PFAC asserts that the filing of the State Lawsuit constitutes
retaliation in violation of USERRA, 38 U.S.C. § 4311(b).
In addition, the PFAC articulates a cause of action for
conspiracy in violation of 42 U.S.C. § 1985(2). In
support of that claim, the PFAC appears to name new
defendants: Howard Byrd and “Unknown John and Jane
Does” are identified as defendants in the case caption
of the PFAC. (Doc. No. 29-1, at 1.) However, they are not
identified as parties under the “Parties” section
of the PFAC, and, although the PFAC contains factual
allegations concerning them, they are not identified as
defendants anywhere in the body of the PFAC. Instead, the
PFAC confusingly refers to Deloitte as the sole
“Defendant.” It alleges that Byrd, Deloitte's
Director of Federal Contracts, met with “unknown John
and Jane Does” after the mediation to “discuss
their personal misgivings about Plaintiff and this
lawsuit” (Doc. No. 29-1 ¶ 66); that Byrd and the
John and Jane Does “discussed and agreed, outside the
scope of any policy or procedure or employment responsibility
required of them, based on their personal desire, to impede,
deter, and hinder [Plaintiff] from showing up in court and
fully prosecuting his original claims in this lawsuit”
(id. ¶ 67); that Byrd and the John and Jane
Does met with other Deloitte employees and persuaded Deloitte
to file the State Lawsuit against the plaintiff, for the
purpose of intimidating the plaintiff and hindering the
pursuit of his claims in this court (id. ¶ 68).
PFAC also differs from the original Complaint in that, while
the latter states only a general claim for violation of
USERRA, “38 USC 4301 et seq.” (Doc. No.
1, at 8), the PFAC sets forth distinct claims for USERRA
discrimination, in violation of 38 U.S.C. § 4311(a), and
failure to reemploy, in violation of 38 U.S.C. §§
4312 and 4313.
does not contest the proposed clarification of the USERRA
claims, but it opposes the Motion to Amend on the ground that
adding the proposed retaliation and conspiracy claims would
be futile, in the sense that neither of the new claims for
relief could withstand a motion to dismiss. (Doc. No. 30.)
Sanchez, with the court's permission, has filed a Reply.
(Doc. No. 33.)
STANDARD OF REVIEW
Rule of Civil Procedure 15(a)(1) provides that a party can
amend its pleading once “as a matter of course”
under limited circumstances. Rule 15(a)(2) applies
“[i]n all other cases, ” and it provides that a
party may amend “only with the opposing party's
written consent or the court's leave.” Such leave
should be freely given “when justice so
requires.” Id. Rule 15(a)(2) “embodies a
‘liberal amendment policy.'” Brown v.
Chapman, 814 F.3d 436, 442-43 (6th Cir. 2016) (citation
determine whether to grant leave under this liberal policy,
courts typically weigh several factors, including
“[u]ndue delay in filing, lack of notice to the
opposing party, bad faith by the moving party, repeated
failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of
amendment.” Wade v. Knoxville Utils. Bd., 259
F.3d 452, 458- 59 (6th Cir. 2001) (citation omitted).
Generally, futility provides an independent basis for
dismissal when any claims sought to be added “could not
survive a motion to dismiss.” Midkiff v. Adams Cty.
Reg'l Water Dist., 409 F.3d 758, 767 (6th Cir.
withstand a motion to dismiss, the complaint must include
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim has facial
plausibility “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Pleadings that offer only “labels and conclusions,
” or a “formulaic recitation of the elements of a
cause of action, ” will not do. Twombly, 550
U.S. at 555.