United States District Court, S.D. Indiana, Indianapolis Division
JESSICA A. GIBSON, Plaintiff,
INDIANA STATE PERSONNEL DEPARTMENT, et al., Defendants.
JESSICA A. GIBSON, DAVID C. DICKMEYER, INDIANA ATTORNEY
ELIZABETH MARIE LITTLEJOHN INDIANA ATTORNEY GENERAL
REBECCA L. LOEFFLER, INDIANA ATTORNEY GENERAL
ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO FILE A
THIRD AMENDED COMPLAINT
BAKER, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Jessica Gibson's motion for leave
to file a third amended complaint. [Filing No. 73.] In April
2017, Plaintiff Jessica Gibson filed her initial complaint
[Filing No. 1] alleging discrimination under Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities
Act, the Rehabilitation Act, and the Family Medical Leave
Act. Gibson alleges that she is a qualified Hispanic female
with a history of disability as defined under the ADA.
Defendants filed a motion to dismiss, claiming that Gibson
failed to state a claim upon which relief can be granted.
[Filing No. 10.] In July 2017, Gibson filed her first amended
complaint [Filing No. 18], prompting Defendants to file
another motion to dismiss. [Filing No. 19.] In December 2017,
the Court granted Gibson leave to amend a second time so that
she could “plead additional facts that plausibly
suggest that Individual Defendants . . . received notice of
the charge of discrimination.” [Filing No. 31, at ECF
p. 10.] In February 2018, Gibson filed her second amended
complaint. [Filing No. 47.]
March 2018, Defendants filed a motion for partial dismissal
of Gibson's second complaint, alleging she did not
include the additional facts mentioned above. This motion
still pends. [Filing No. 53.] Notably, the deadline to amend
the pleadings was September 18, 2017-more than nine months
before Gibson's current motion for leave to amend. As
discussed below, the Court finds she did not show good cause
for the delay and denies her motion.
argues that as an unrepresented party, she has made every
effort to cure prior deficiencies. Specifically, she argues
that she is not attempting to cause undue delay, filing in
bad faith, or prejudicing Defendants. Instead, she contends,
her failure to cure prior deficiencies is a result of
significant hardships in her personal life. Defendants argue
that Gibson has not shown good cause for filing a third
Rule of Civil Procedure 15(a)(2) provides that the Court
should freely grant leave to amend the pleadings
“[w]hen justice so requires.” However, Rule
16(b)(4) provides that a party seeking leave to amend the
pleadings after the deadline set in the scheduling order must
show “good cause” for modifying the deadline.
Adams v. City of Indianapolis, 742 F.3d 720, 734
(7th Cir. 2014) (noting “some tension” between
the generous standard in Rule 15 and the good cause
requirement in Rule 16); see also Fed. R. Civ. P.
6(b)(1)(B) (requiring a showing of “good cause”
and “excusable neglect” to extend a deadline after
it expires). A good cause determination “primarily
considers the diligence of the party seeking
amendment.” Trustmark Ins. Co. v. Gen. &
Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir.
lacked diligence in amending the pleadings and does not show
good cause. The deadline for amending the pleadings passed
more than nine months ago. While the personal hardships
Gibson cites limited her time to attend to this matter, a
nine-month delay is excessive. See, e.g.,
Bell v. Tayor, 827 F.3d 699, 706 (7th Cir. 2017)
(opining that plaintiff did not show good cause to amend the
pleadings eight months after the deadline). Moreover, despite
Gibson's status as an unrepresented party, she received
explicit instructions from the Court to “plead
additional facts that plausibly suggest that Individual
Defendants . . . received notice of the charge of
discrimination.” [Filing No. 31, at ECF p. 10.] Gibson
has had prior opportunities to plead those additional facts,
which weighs against granting her motion. Adams, 742
F.3d at 734. Additionally, nothing in Gibson's amendment
suggests that she is seeking to add new defendants or add
at the time Gibson filed her original complaint, she knew
about the information she now seeks to add, but she failed to
include it despite prior opportunities to do so. Doing so now
would prejudice the Defendants for several reasons. First,
Gibson has already been deposed, and any effort to depose her
again would be difficult because of her relocation from
Indiana to California on June 18, 2018. [Filing No. 74-1, at
ECF p. 1]; see Trustmark, 424 F.3d at 546 (affirming
district court decision that plaintiff failed to show good
cause because a nine-month late amendment necessitating more
discovery would prejudice the defendant). Second,
Defendants' motion to dismiss, which has been pending
since March 2018, is fully briefed and awaiting resolution.
Last, the liability discovery deadline has expired.
the Court denies Gibson's motion for leave to amend.
[Filing No. 73.]
 The Court notes that there is some
precedent that uses the excusable neglect standard, but those
cases primarily involve an extension for discovery deadlines.
See, e.g., Brosted v. Unum Life Ins. Co.,
421 F.3d 459, 464 (7th Cir. 2005). In this instance, the
distinction is immaterial since ...