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Sanchez v. Deloitte Services, LP

United States District Court, M.D. Tennessee, Nashville Division

October 28, 2019

ADAM SANCHEZ, Plaintiff,



         Before 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.


         Adam 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 ¶ 2.)

         After 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.

         As set 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.)

         In June 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 ¶ 100.)

         In 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;[1] 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.

         The 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).

         The 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.

         Deloitte 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.)


         Federal 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 omitted).

         To 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. 2005).

         To 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.


         A. USERRA ...

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