UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) EDWARD RICHARDSON, ) ) Civil Action No. 14-1673 (RMC) Plaintiff, ) ) v. ) ) JANET L. YELLEN, CHAIR, FEDERAL ) RESERVE BOARD OF GOVERNORS OF ) THE FEDERAL RESERVE SYSTEM, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

Edward Richardson has filed suit pro se against his former employer for a variety

of constitutional torts, common-law torts, and statutory violations that he alleges occurred during

his employment. Having previously amended his original complaint once, Mr. Richardson now

moves to amend his complaint again, although the Court’s deadline to do so has long passed. Mr.

Richardson argues that he should be permitted to amend his complaint because he has learned

new information that supports new claims, while Defendants argue that Mr. Richardson has not

shown good cause to amend, as required by Rule 16 of the Federal Rules of Civil Procedure.

Because Mr. Richardson has established neither that he acted diligently to amend his complaint

nor that the proposed amendment would not prejudice Defendants, the Court finds that Mr.

Richardson has not shown good cause. Accordingly, the Court will deny Mr. Richardson’s

motion without prejudice.

I. BACKGROUND

Because the question at bar is limited to whether Mr. Richardson may again

amend his complaint, only a summary of the facts relevant to the motion to amend, and not a

1 summary of the entire case, is necessary here. Mr. Richardson, a pro se plaintiff, complains that

his former employer, the Federal Reserve Board of Governors, and its chair, Janet Yellen

(Defendant or the Board) committed against him a variety of torts and statutory violations while

Mr. Richardson was employed as a law enforcement officer with the Board.

On June 4, 2010, the Board sent Mr. Richardson a letter informing him of his

termination and detailing the reasons, which included “misconduct or negligence in prior

employment.” Letter to Edward Richardson [Dkt. 60-1]. The letter provided a brief description

of the conduct alleged, which according to the letter was brought to light during a background

investigation upon which Mr. Richardson’s employment was conditioned. Id.

Mr. Richardson filed his initial complaint in this action on October 8, 2014, and

subsequently amended his complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure

on March 20, 2015. See Compl. [Dkt. 1]; Am. Compl. [Dkt. 8]. As the litigation progressed, this

Court issued a scheduling order on June 30, 2016 providing, among other deadlines, that

“Plaintiff may amend its pleadings no later than July 15, 2016.” Scheduling Order [Dkt. 48]. The

Court also directed that “[t]his schedule shall not be modified, even where all parties consent,

except upon motion demonstrating good cause and an order from the Court.” Id. (citing Fed. R.

Civ. P. 16(b); LCvR 16.4 (governing the Court’s issuance of scheduling orders)).

The parties progressed to discovery, with an initial deadline of October 28, 2016.

See Scheduling Order at 2. Discovery was extended twice, see 11/2/2016 Order [Dkt. 63];

11/15/2016 Minute Order; and 3/30/2017 Order [Dkt. 105]. Discovery concluded on May 5,

2017. See 5/8/2017 Joint Status Report [Dkt. 110].

According to Mr. Richardson, at some point during discovery he obtained new

information about three other employees: Shandra Love, Darren Harris, and Rocco Christoff.

2 Specifically, Mr. Richardson now asserts that he obtained new information establishing that

these three former coworkers had all “possessed unfavorable employment backgrounds prior to

employment with the Board,” about which they allegedly lied to the Board. Pl.’s Mot. Leave

Am. Compl. [Dkt. 107] at 2 (Mot.); Pl.’s Reply Support Mot. Leave Am. Compl. [Dkt. 116] at 2

(Reply). Messrs. Harris and Christoff are white, Ms. Love is a woman, and Mr. Richardson is an

African-American man. See Ex. A, Mot. [Dkt. 107-1] at ¶¶ 180-81. Mr. Richardson contends that

he did not learn of this information until “[d]uring the discovery period,” Mot. at 2, when he says

he was able to review documents including background questionnaires that brought to light

“disciplinary actions in employment prior to [the three other employees’] employment with the

Board.” Reply at 2. Mr. Richardson does not provide the date or dates on which he received the

background questionnaires.

However, on November 22, 2016, Mr. Richardson filed a Notice of Subpoena, in

which he discussed various details from Mr. Christoff’s and Ms. Love’s employment histories

(such as disciplinary actions), as well as Mr. Harris’s “prior arrest record.” Motion to Subpoena

[Dkt. 69] at 1-2, 3 (Notice of Subpoena). The Board claims that Mr. Richardson obtained this

information from “public documents and other information not obtained from the Board.” Opp’n

Pl.’s Mot. Leave Am. Compl. [Dkt. 111] at 3 (Opp’n).

On May 3, 2017, Mr. Richardson moved to amend his First Amended Complaint

pursuant to Rule 15(a)(2). See Mot.; see also Fed. R. Civ. P. 15(a)(2) (providing that “[t]he court

should freely give leave” to amend a complaint other than as a matter of course “when justice so

requires”). Defendants opposed, arguing that Rule 16(b), which requires “good cause” to amend

if a scheduling order deadline has passed, governs instead. See Opp’n. Mr. Richardson replied.

See Reply. The motion is ripe for review.

3 II. LEGAL STANDARD

Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that “[t]he court

should freely give leave” to amend a complaint other than as a matter of course “when justice so

requires.” Under this standard, a court may deny a motion to amend if it finds “undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, [or] undue prejudice to the opposing party.” Foman v. Davis,

(1962).

However, as this Court has noted before, when a plaintiff “seeks leave to amend

which deviates from a court-ordered deadline, the more stringent good cause standard imposed

by Federal Rule of Civil Procedure 16(b) applies.” In re Papst Licensing GmbH & Co. KG Litig.,

(2011); see also Lurie v. Mid-Atl. Permanente Med. Grp., P.C.,

(D.D.C. 2008) (“To hold otherwise would allow Rule 16’s standards to be ‘short

circuited’ by those of Rule 15 and would allow for parties to disregard scheduling orders, which

would ‘undermine the court’s ability to control its docket, disrupt the agreed-upon course of the

litigation, and reward the indolent and the cavalier.’”) (quoting Leary v. Daeschner,

(6th Cir. 2003)). Under Rule 16(b), a court may enter a scheduling order that limits the

time to amend the pleadings and that such schedule may be modified only for good cause and

with the judge’s consent. To show good cause, the moving party must show both diligence and a

lack of prejudice to the opposing parties. See Papst,

.

III. ANALYSIS

In his motion for leave to amend, Mr. Richardson cites Rule 15(a)(2), under

which the Court’s leave to amend a complaint should be “freely given.” See Mot. at 1; Fed. R.

Civ. P. 15(a)(2). Because the Court’s Scheduling Order set a deadline of July 15, 2016 for any

amendments to Mr. Richardson’s pleadings, the Rule 16(b) “good cause” standard applies

4 instead. See Papst,

. Therefore, the Court must determine whether Mr.

Richardson has shown diligence and there is no prejudice to Defendants. See id.1 It finds that

neither has been shown and the motion to amend must be denied. Because this conclusion is

based primarily on a lack of evidence, and because Mr. Richardson is acting pro se and

misperceived the relevant Rule of Civil Procedure and standard, as discussed below, the

dismissal will be without prejudice.

A. Diligence

The determination of whether Mr. Richardson has shown good cause to amend his

complaint turns on whether he has established that he acted with adequate diligence. See, e.g., A

Love of Food I, LLC v. Maoz Vegetarian USA, Inc.,

(D.D.C. 2013) (“The

primary factor in determining whether good cause exists is the diligence of the party.”). Thus,

“the Court’s inquiry must focus on the reasons the [moving party] has given for his delay instead

of the substance of the proposed amendment.” Headfirst Baseball LLC v. Ellwood,

, 154 (D.D.C. 2016) (quoting Lurie,

).

Mr. Richardson seeks to amend his complaint because he learned information

during discovery that supports new Title VII claims. See Mot. at 2. Mr. Richardson asserts that

Ms. Love, Mr. Christoff, and Mr. Harris “possessed unfavorable employment backgrounds prior

to employment with the Board,” specifically that they had all departed previous jobs under

“unfavorable circumstances,” about which they allegedly lied to the Board. Id. at 2, 34-35; Reply

1 Although Mr. Richardson’s motion for leave to amend argued under the Rule 15 standard, he had the opportunity to respond to Defendants’ arguments, including their threshold argument that Rule 16 governs, in his Reply. Mr. Richardson’s Reply continues to claim that Rule 15 applies to his proposed new claims, and also suggests that Rule 18, governing joinder of claims, governs his motion. See Reply at 1. He does not squarely refute the Board’s argument that Rule 16 applies, and the Court finds that it undoubtedly does, and that Mr. Richardson had sufficient opportunity to establish good cause in his Reply.

5 at 2. Mr. Richardson contends that he was recommended for termination based on analogous

conduct, while his white and female coworkers were not, and that the discrepancy supports an

inference of discrimination on the basis of race and sex. See Reply at 2. Thus he argues that he

should be entitled to amend his complaint to add new claims that were brought to light by this

new evidence. See Mot. at 2.

Defendants counter that Mr. Richardson was not diligent in investigating these

facts earlier, or in amending his complaint without delay. They argue that he could have obtained

the relevant information earlier, and point to references to the other employees’ employment

histories in Mr. Richardson’s own Notice of Subpoena, “in which he discusses various public

documents and other information not obtained from the Board.” Opp’n at 3. Defendants also

argue that Mr. Richardson has known since 2010 that the Board terminated his employment “in

part because of his prior employment problems,” so that he was in a position for several years to

investigate whether other employees had similar issues. Id. According to this argument,

Defendants contend, Mr. Richardson could have learned of other employees’ backgrounds and

compared them to his own long before filing his motion to amend, and before discovery. See id.

If Mr. Richardson could not have known material information until shortly before

moving to amend his complaint, he would present a compelling argument that he had acted with

diligence. See, e.g., A Love of Food,

(suggesting that “a change in law or

newly discovered evidence” could establish good cause under Rule 16). However, having

reviewed the parties’ pleadings and exhibits on this question, the Court agrees with Defendants

that Mr. Richardson could have raised this issue earlier but failed to do so. To wit, Mr.

Richardson’s Notice of Subpoena, filed with the Court more than five months before Mr.

Richardson’s motion for leave to amend, describes disciplinary actions and other issues related to

6 prior employment of both Ms. Love and Mr. Christoff, as well as Mr. Harris’s “prior arrest

record.” See Notice of Subpoena at 1-2, 3. Mr. Richardson could have used such information to

investigate whether there was additional evidence to support the Title VII claims he now seeks to

add.

As the moving party, Mr. Richardson bears the burden of establishing that he

acted with diligence. The Court finds that he has not supplied sufficient information to support

good cause. Notably, he claims that the other employees’ “background questionnaires and

background investigation results” were not available to him until discovery, but he does not

provide sufficient information to establish that he acted with diligence, such as the date that he

received the information, or why the information was essential to his ability to bring the new

claims. Reply at 2. Without additional evidence that Mr. Richardson acted diligently, in the face

of the Board’s persuasive arguments that he did not, the Court does not find good cause to allow

Mr. Richardson to amend his complaint so long after the deadline established in the Scheduling

Order.

B. Prejudice

Separate from, and in addition to, establishing diligence, good cause under Rule

16 requires that the opposing party will not be prejudiced by an amendment to the pleadings.

Even where the moving party has acted diligently, a motion to amend can fail if the other party

will suffer prejudice. See, e.g., Wallace v. AlliedBarton Sec. Serv., LLC,

(D.D.C. 2015) (denying a motion for leave to file an amended complaint under Rule 16 where,

although the moving party had acted promptly and diligently, the court found that the other party

would suffer prejudice).

Mr. Richardson argues that permitting him to add new claims to his complaint

7 would not require an extension of discovery or prejudice Defendants. First, Mr. Richardson

asserts that he has “only made minor alterations,” but the argument fails. Mot. at 2. By his own

description he seeks to add new claims of sex- and race-based discrimination under a new legal

basis, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Mot. at 2. Mr.

Richardson argues that the Board already “engaged in discovery on Plaintiff’s new claims,”

because Mr. Richardson was asked “about his new claims” during his deposition on May 4,

2017. Reply at 3. Defendants counter that Mr. Richardson was deposed the day after he had filed

his motion for leave to amend and the day before the close of discovery, i.e., May 5, 2017. In the

Court’s estimation, one day is not sufficient time to engage in discovery of information related to

new claims. The Board would be prejudiced if it were denied the opportunity to “obtain

information and testimony” on the proposed new claims. Opp’n at 4.2

Mr. Richardson further argues that Defendants would not suffer prejudice

because the Board should have disclosed the relevant facts in its Rule 26 initial disclosure. See

Reply at 3. Without more evidence, the Court cannot agree. Mr. Richardson has not provided

sufficient information to demonstrate that the Board failed to provide him with evidence to

which he was entitled. Moreover, as discussed above, Mr. Richardson’s prior filings in this

action strongly suggest that he already possessed information relevant to his proposed new

claims. The Court finds that Mr. Richardson has failed to establish that the Board would not

suffer prejudice if the proposed Second Amended Complaint were filed.

2 The Board has asked the Court, if it grants the motion, to require Mr. Richardson to produce documents, answer interrogatories, and sit for a supplemental deposition to address the new claims. See Opp’n at 4.

8 IV. CONCLUSION

For the foregoing reasons, Mr. Richardson’s Motion for Leave to Amend

Complaint [Dkt. 107] will be denied without prejudice. A memorializing Order accompanies this

Opinion.

Date: January 26, 2018 /s/ ROSEMARY M. COLLYER United States District Judge

9