United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
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.
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.
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.
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.
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).
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.
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.
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)).
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.