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Wilson v. Merrillville Community School Corp.

United States District Court, N.D. Indiana, Hammond Division

March 23, 2018

ANNETTE WILSON, Plaintiff,
v.
MERRILLVILLE COMMUNITY SCHOOL CORPORATION, Defendant.

          OPINION AND ORDER

          JOHN E. MARTIN MAGISTRATE JUDGE

         This matter is before the Court on a Motion for Leave to Amend Complaint [DE 20], filed by Plaintiff on January 9, 2018. Defendant filed a response on January 17, 2018, and on January 24, 2018, Plaintiff filed a reply.

         I. Background

         On August 8, 2017, Plaintiff filed her initial Complaint, including claims for employment discrimination pursuant to the Americans with Disabilities Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act. On November 17, 2017, Defendant filed a motion for partial judgment on the pleadings. Plaintiff has not responded to that motion, and the deadline to do so expired on January 2, 2018. Similarly, the deadline for filing a motion for leave to amend pleadings was to be filed on or before January 5, 2018. Plaintiff filed the instant Motion on January 9, 2018, seeking to eliminate or modify some of the counts challenged in the motion for judgment on the pleadings. Plaintiff did not request an extension of the deadlines, but argues that her failure to timely file the instant Motion was due to a calendaring error. The Court does not find that Plaintiff's failure to file a timely - or any - request for extension was due to excusable neglect. See Fed. R. Civ. P. (6)(b)(1) (“When an act may or must be done within a specified time, the court may, for good cause, extend the time . . . before the original time or its extension expires[] or on motion made after the time has expired if the party failed to act because of excusable neglect.”). However, in the interests of efficiency, and noting that the motion is fully briefed, the Court will address the merits of Plaintiff's motion.

         II. Analysis

         Plaintiff seeks to remove several counts from here Complaint and to amend Counts IV and V, both of which were challenged by Defendant in its motion for judgment on the pleadings. Defendant argues that the proposed amendments are futile so the request should be denied.

         Federal Rule of Civil Procedure 15(a) provides that, when a party seeks leave to amend a pleading, the “court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Thus, if the underlying facts or circumstances relied upon by a plaintiff are potentially a proper subject of relief, the party should be afforded an opportunity to test the claim on the merits. Foman v. Davis, 371 U.S. 178, 182 (1962). The decision whether to grant or deny a motion to amend lies within the sound discretion of the district court. Campbell v. Ingersoll Milling Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990). However, leave to amend is “inappropriate where there is undue delay, bad faith, 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, or futility of the amendment.” Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir. 1991) (citing Foman, 371 U.S. at 183). An amendment is “futile” if it would not withstand a motion to dismiss or motion for summary j udgment. Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 974 (7th Cir. 2001); see also Sound of Music Co. v. 3M, 477 F.3d 910, 923 (7th Cir. 2007).

         I. Count IV

         First, Defendant argues that Plaintiff's Count IV for constructive discharge is insufficient because Plaintiff failed to comply with the notice requirements of the Indiana Tort Claims Act (ITCA), Ind. Code § 34-13-3-1 et seq. The ITCA bars claims against a political subdivision, including a school corporation, unless a notice is filed with “(1) the governing body of that political subdivision; and (2) the Indiana political subdivision risk management commission . . . within one hundred eighty (180) days after the loss occurs.” Ind. Code § 34-13-3-8(a); Meury v. Eagle-Union Cmty. Sch. Corp., 714 N.E.2d 233, 241 (Ind.Ct.App. 1999) (“Claims against school corporations and their employees are subject to the Indiana Tort Claims Act (ITCA) notice of claims provisions.”) (listing cases). The notice must inform the municipality of the person's intent to make a claim and contain information sufficient to reasonably afford the political subdivision an opportunity to promptly investigate, determine liability, and prepare a defense to the claim. Irwin Mortgage Corp. v. Marion Cnty Treasurer, 827 N.E.2d 34, 36 (Ind.Ct.App. 2005).

         Plaintiff's claim for constructive discharge sounds in tort, see, e.g., Harris v. Brewer, 49 N.E.3d 632, 640 (Ind.Ct.App. 2015), so she was required to comply with the ITCA notice requirements. Plaintiff's proposed amended complaint contains no mention of a notice of claims, but that does not necessarily mean that Plaintiff's claim fails; non-compliance with the tort claim notice requirement “has been excused in certain cases based on the theories of substantial compliance, waiver, and estoppel.” Daugherty v. Dearborn Cnty, 827 N.E.2d 34, 36 (Ind.Ct.App. 2005). Defendant has raised the issue, so the burden shifts to Plaintiff to demonstrate that she has complied or that her non-compliance is excusable. See, e.g., Weaver v. Elkhart Cmty. Sch. Corp., ___N.E. 3d ___, No. 20A03-1707-PL-1702, 2018 WL 844943, at *3 (Ind.Ct.App. Feb. 14, 2018). That determination will be made in the context of the pending motion for judgment on the pleadings, rather than on a motion to amend complaint. Accordingly, Plaintiff's proposed amendment is not futile as to this claim, and the amendment will be permitted.

         II. Count V

         Defendant also argues that Plaintiff's proposed Count V fails to state a claim for liability of the school for a constitutional violation under 42 U.S.C. § 1983 or for violation of due process based on an alleged liberty interest in her reputation.

         “[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government is responsible under § 1983.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). To establish the liability of a municipality for the constitutional deprivation, a plaintiff must demonstrate: “(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the final force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority.” Lewis v. City of Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (quoting Phelan v. Cook County, 463 F.3d 773, 789 (7th Cir. 2006)). “In order to state a § 1983 claim against a municipality, the complaint must allege that an official policy or custom not only caused the constitutional violation, but was ‘the moving force' behind it.” Estate of Sims v. County of Bureau, 506 F.3d 509, 514 (7th Cir. 2007) (citing City of Canton, 489 U.S. at 389; Arlotta v. Bradley Center, 349 F.3d 517, 521-22 (7th Cir. 2003); Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002)). “Boilerplate allegations of a municipal policy, entirely lacking in any factual support that a city policy does exist, are insufficient” to survive a motion to dismiss. Sivard v. Pulaski County, 17 F.3d 185, 188 (7th Cir. Ind. 1994) (citing Rodgers v. Lincoln Towing Serv., Inc., 771 F.2d 194, 202 (7th Cir. 1985)).

         In this case, Plaintiff alleges that Defendant had policies, practices, and customs of “treating Plaintiff differently” and “terminating Plaintiff.” There is no allegation of actual municipal policy or practice that caused any constitutional injury to Plaintiff. ...


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