UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA ...

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

NOMIKI N. VORGIAS,

)

Plaintiff,

)

)

v.

)

)

MEMORIAL HEALTH SYSTEM, INC. )

d/b/a MEDPOINT EXPRESS CLINICS )

and CHRIS ENDRES,

)

Defendants.

)

CAUSE NO.: 2:12-CV-218-RLM-PRC

OPINION AND ORDER

This matter is before the Court on a Motion for Leave of Court to File Amended Complaint

[DE 12], filed by Plaintiff Nomiki N. Vorgias on August 15, 2012.

PROCEDURAL BACKGROUND

In the original six-count Complaint, filed May 30, 2012, and brought against Memorial

Health System, Inc. d/b/a Medpoint Express Clinics ("Memorial") and Chris Endres, Plaintiff alleges

three claims under the Family and Medical Leave Act ("FMLA") (Counts I-III) as well as claims

under Indiana common law for tortious wrongful discharge, tortious interference with an

employment contract, and promissory estoppel (Counts IV-VI).

On July 16, 2012, Defendants filed a Motion to Dismiss Plaintiff's Complaint in its entirety

for a failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure

12(b)(6). The deadline for Plaintiff to file a response to that motion was August 2, 2012, and

Plaintiff never filed a response.

However, on August 15, 2012, Plaintiff filed the instant Motion for Leave of Court to File

Amended Complaint. Defendants filed a response on August 24, 2012. On September 7, 2012,

Plaintiff filed a reply brief, and on October 3, 2012, Defendants filed a sur-reply, with leave of Court. ANALYSIS

In the instant motion, Plaintiff seeks leave of Court to amend her Complaint to supplant her claims initially under the FMLA with claims brought instead under the Americans With Disabilities Act ("ADA"). The proposed Amended Complaint attached to the motion does not include the FMLA claims originally pled in Counts I-III of the Complaint but instead brings new Counts I and II under the ADA. Plaintiff also restates the Indiana common law claims pled in the original Complaint as Counts IV-VI as Counts III-V in the Amended Complaint.

As an initial matter, Defendants are correct that Plaintiff's reply brief is untimely. Defendants' response was filed on August 24, 2012. Under Northern District of Indiana Local Rule 7-1, Plaintiff had seven days to file a reply. That seven days in addition to the extra three days granted under Federal Rule of Civil Procedure 6(d) and the fact that the third day, September 3, 2012, was a federal holiday, made Plaintiff's reply due on September 4, 2012. Plaintiff did not file a reply under September 7, 2012. However, in this instance in the interests of justice, the Court declines to strike the reply brief as requested by Defendants.

Federal Rule of Civil Procedure 15 governs amendments to pleadings and provides, in part: (1) Amending as a Matter of Course. 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. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

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Fed. R. Civ. P. 15(a). Here, because the time for Plaintiff to amend her pleading as a matter of course has expired, Plaintiff seeks leave of Court to file the amendment. The United States Supreme Court explained the term "freely give" as follows:

In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of a 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 the amendment, etc.-the leave sought should, as the rules require be freely given. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010). The standard for futility is the same standard of legal sufficiency that applies under Federal Rule of Civil Procedure 12(b)(6). See Townsel v. DISH Network LLC, 668 F.3d 967, 969 (7th Cir. 2012); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997). The decision whether to grant or deny a motion to amend lies within the sound discretion of the district court. See Campbell v. Ingersoll Milling Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990). The Court considers each prosed amended count in turn.

A. Counts I and II ? ADA Claims Acknowledging that she has failed to state a claim for which relief can be granted in Counts I-III of the original Complaint brought under the FMLA, Plaintiff's proposed Amended Complaint seeks to replace those original counts with amended Counts I and II brought instead under the ADA. In response, Defendants argue that the ADA claims in proposed amended Counts I and II are time barred because the ADA claims were not alleged until more than 90 days after Plaintiff received her right to sue letter. Plaintiff replies that the ADA claims relate back under Federal Rule of Civil Procedure 15(c). In the sur-response, Defendants argue that the ADA claims do not relate back to the FMLA claims in the original Complaint.

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Federal Rule of Civil Procedure 15(c) provides that an "[a]mendment to a pleading relates back to the date of the original pleading when[] (A) the law that provides the applicable statute of limitations allows relation back [or] (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out?or attempted to be set out?in the original pleading . . . ." Fed. R. Civ. P. 15(c)(A)-(B). Generally, "relation back is permitted . . . where an amended complaint asserts a new claim on the basis of the same core of facts, but involving a different substantive legal theory than that advanced in the original pleading." Bularz v. Prudential Ins. Co. of Am., 93 F.3d 372, 379 (7th Cir. 1996). As a result, the "new substantive claim . . . relates back to the date of the original pleading, provided the new claim stems from the same `conduct, transaction, or occurrence' as was alleged in the original complaint . . . [;] there is no additional requirement that the claim be based on an identical theory of recovery." Id.

Plaintiff filed her Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on October 12, 2011. The EEOC dismissed Plaintiff's Charge and issued her a right-to-sue letter on March 7, 2012. Under the ADA, a plaintiff must file suit within 90 days of receiving the right-to-sue letter. Houston v. Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir. 1999) (citing 42 U.S.C. ? 2000e-5(f)(1)). Plaintiff filed her original Complaint on May 30, 2012, which was within the 90-day filing period. However, the original Complaint alleged federal claims under the FMLA but not the ADA. Defendants argue that, because Plaintiff's motion to amend the complaint to add ADA claims was not filed until August 15, 2012, which is more than 150 days after the EEOC sent Plaintiff the right-to-sue letter, Plaintiff's ADA claims are time-barred, and, thus, the amended complaint would be futile.

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In her reply brief, Plaintiff argues that her ADA claims relate back to the filing of the original Complaint, which was within the 90-day filing period, because her proposed ADA claim, which would otherwise be time barred, stems from the same "conduct, transaction, or occurrence" alleged in support of the FMLA claims in the original Complaint. Plaintiff states generally that she "asserts no new facts or attempts to alter the nature of the suit against the Defendants." Pl. Reply, p. 8. In their sur-reply, Defendants disagree, arguing that the facts alleged in support of the FMLA claim in the original Complaint are not the same facts alleged in support of the ADA claim in the proposed Amended Complaint.

A comparison of the original Complaint and the proposed Amended Complaint show that the paragraphs under the heading "Facts" are essentially identical. This includes the following allegations.

Prior to accepting the employment offer from Memorial, Plaintiff had "taken some time off due to treatment of an aggressive cancer," Compl. ? 13; Am. Compl. ? 12. At the time of her hire, the cancer was in remission but she was "taking prescription narcotic pain medication to treat her persisting pain symptoms." Compl. ? 14; Am. Compl. ? 13. Plaintiff's health condition and medications were openly discussed during her interview and the hiring process with Human Resources, Occupational Health, and her Nurse Manager, Laura. Compl. ? 15; Am. Compl. ? 14. Plaintiff indicated on her application paperwork that she was taking prescription pain medication. Compl. ? 16; Am. Compl. ? 15. Chris Endres, the Director of MedPoint Express Clinics for Memorial, "assured [Plaintiff], that so long as she was capable of performing her job functions, her medication and ongoing treatment will not be an issue." Compl. ? 17; Am. Compl. ? 16. Plaintiff

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