Moore v. City of Paducah

• Decision Date: 16 May 1986
• Docket Number: No. 84-5649,84-5649
• Citation: 790 F.2d 557
• Parties: 40 Empl. Prac. Dec. P 36,177, 4 Fed.R.Serv.3d 1199 Paul MOORE, Plaintiff-Appellant, v. CITY OF PADUCAH; Mayor John Penrod; Joe Viterisi, Harold Ford, Robert Coleman, and Joe Flynn, Commissioners; Robert E. Green, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 557

790 F.2d 557

40 Empl. Prac. Dec. P 36,177, 4 Fed.R.Serv.3d 1199

Paul MOORE, Plaintiff-Appellant, v. CITY OF PADUCAH; Mayor John Penrod; Joe Viterisi, Harold Ford, Robert Coleman, and Joe Flynn Commissioners; Robert E. Green Defendants-Appellees.

No. 84-5649.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 27, 1986.

Decided May 16, 1986.

James W. Owens (argued), Paducah, Ky., for plaintiff-appellant.

James W. Utter (argued), Paducah, Ky., for City of Paducah.

James W. Funk, Kimmell, Funk & Cummings, Vincennes, Ind., W. David Denton, Denton & Keuler, Paducah, Ky., for defendants-appellees.

Before JONES and WELLFORD, Circuit Judges, and GILMORE, District Judge. ^*

PER CURIAM.

Appellant, Paul Moore, filed suit on August 4, 1981, against the City of Paducah, its mayor, city commissioners, and a private individual, Robert Green. The suit was based upon 42 U.S.C. Sec. 1985 ¹ and alleged that Green conspired with the others to have Moore discharged from his position as director and chief inspector of Paducah's Department of Building Construction and Code Enforcement so that Green, a developer, could evade compliance of local building codes. On September 14, 1981, the City filed a motion to dismiss the complaint claiming that Moore failed to set out a claim under Sec. 1985, because Moore, a white male, was not a member of a class against which the appellees had discriminated. Green filed a similar motion to dismiss on September 21, 1981.

On September 28, 1981, Moore sought an extension of time to respond to these motions on the ground that the "extension is necessary for plaintiff's counsel to thoroughly research the issues in Defendant's memorandum...." The district court granted Moore's motion.

In the meantime, Moore filed a related action in state court, and the district judge stayed the federal proceedings pending the outcome of state court litigation. After successfully completing his state action, Moore moved to lift the stay on December 14, 1982. The appellees, defendants in the state court suit, objected because they intended to appeal the adverse state court decision. The district court declined to lift the stay pending appeal to the Kentucky appellate court.

No further significant federal proceedings occurred until June 1983, when Moore filed his second amended complaint to sue the mayor and city commissioners individually. This motion to amend was granted on June 23, 1983. ² Moore filed no responsive pleadings addressing appellees' September 1981 motions to dismiss.

On December 5, 1983, a pretrial conference was held, and the district court entered an order allowing the parties forty-five days within which to submit briefs discussing their respective positions. Appellees filed their briefs, but Moore submitted a motion to file still another amended complaint ³ whereby he would substitute a Sec. 1983 for the Sec. 1985 claim.

On February 28, 1984, the district court entered a memorandum and order denying Moore's motion to amend and found no excusable basis for Moore's delay in recognizing that Sec. 1983 was the proper basis to claim wrongful action under the color of law. The trial judge then dismissed the Sec. 1985 claim as a matter of law.

Subsequently, Moore sought reconsideration of the district court's decision pursuant to Fed.R.Civ.P. 59, and appellees filed responses. On June 22, 1984, the district court reaffirmed its decision, setting forth a more precise basis for denying Moore's motion to amend the complaint. Moore now appeals.

Federal Rule Civil Procedure 15(a) provides that leave to amend a pleading should be "freely given when justice so requires." Furthermore, the thrust of Rule 15 is to reinforce the principle that cases "should be tried on their merits rather than the technicalities of pleadings." Tefft v. Seward, 689 F.2d 637, 639 (6th Cir.1982). The decision as to whether justice requires the amendment is committed to the district court's sound discretion. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Cranberg v. Consumers Union of U.S., Inc., 756 F.2d 382, 392 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985). Abuse of discretion occurs when a district court fails to state the basis for its denial or fails to consider the competing interests of the parties and likelihood of prejudice to the opponent. See, e.g., Foman, 371 U.S. at 182, 83 S.Ct. at 230. Here the district judge gave his reasons and weighed the prejudice to appellees in respect to his ruling.

In denying Moore's motion to amend the complaint, the district judge reasoned that Moore's delay in amending his complaint to substitute the Sec. 1983 action was unjustified because Moore's counsel knew, or clearly should have known, from the time appellees filed the motion to dismiss in 1981 that the stated Sec. 1985 claim was improper. Moore, however, persisted in this error after the federal action was reactivated in 1983. Since Moore gave no justifiable reason for the delay, the district court found that he had not met his burden of showing why the motion for a third proposed amendment should be granted. Focusing upon the prejudice inquiry, the district court acknowledged that the proposed amendment would only result in "relatively light" prejudice, adding:

In this light the question becomes whether an unjustified delay permits denying leave to amend, even though allowance of the amendment would result in little prejudice to the opposing party. The court concludes that the delay in this case does justify denying leave to amend. While a consideration of prejudice is required, a finding of prejudice is not an absolute requirement for denying leave to amend. See Hayes, 602 F.2d at 19. Thus, a court may decide a motion for leave to amend based upon the reason, or lack of a reason, for the delay.

The district court cited several cases upon which he relied in holding essentially that undue delay alone may be sufficient reason to deny a motion to amend a complaint when the movant fails to justify the delay.

Appellant contends that unjustified delay alone is not a sound basis upon which a district court can refuse to grant leave to amend. For a compilation of appellant's authority, see generally Annot., 4 A.L.R.Fed. 123-173 (1970 & Supp.1985); 6 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 1488 at 435-445 (1971 & Supp.1985).

We must decide under these facts whether unjustified delay alone may be the basis for denial of relief even after a consideration of prejudice to the opponent reveals little prejudice. The district court cited numerous cases in support. However, many of these cases do not permit refusals to allow amendments solely for undue delay. In Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15 (1st Cir.1979), the First Circuit prefaced its holding While courts may not deny an amendment solely because of delay and without consideration of the prejudice to the opposing party, see Mercantile Trust Company National Association v. Inland Marine Products, 542 F.2d 1010, 1012 (8th Cir.1976); Farkas v. Texas Instruments, Inc., supra, 429 F.2d at 851 [ (1st Cir.1970) ]; 3 J. Moore, Federal Practice, p 15.08(4) at 15-102, it is clear that "undue delay" can be a basis for denial (citing Foman v. Davis, 371 U.S. at 182 .

Hayes, 602 F.2d at 19. However, the Hayes court did consider both the delay, which it referred to as considerable, and the prejudice to the opposing party, which it found to be "not insignificant." Id. at 20. The court also referred to the fact that discovery had already been completed and that the amended charge was "not contemplated by the original complaint." Id. at 20. We believe, moreover, the Hayes court found the prejudice involved to be, in effect, significant. The Hayes court cited in support, Professor Moore's treatise, which states: "delay alone, regardless of its length is not enough to bar it [amendment] if the other party is not prejudiced." 3 Moore's Federal Practice, p 15.08 at 15.76 (citing many cases, including Lloyd v. United Liquors Corp., 203 F.2d 789 (6th Cir.1953)). Here, in contrast, the district judge described the prejudice as "little" or "relatively light" and found that the proposed amendment did not materially change the substance of the original complaint.

The district court's reliance upon Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir.1973), is also misplaced because there it was held that "the court must weigh the cause shown for the delay against the resulting prejudice to the opposing party." Id. at 873. The Head court relied primarily upon Nevels v. Ford Motor Co., 439 F.2d 251 (5th Cir.1971), in which the Fifth Circuit held that an amendment offered by defendant raising a new issue on the eve of trial was obviously so prejudicial to the plaintiff that it was held no abuse of discretion to deny the amendment. ⁴ Gibson v. Kroger Co., 506 F.2d 647 (7th Cir.1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1975), also relied upon the district court, is inapposite. The plaintiff in Gibson filed no motion to amend in district court when his original Title VII complaint was determined to be time barred; he raised the question of possible jurisdiction under 42 U.S.C. Sec. 1981 for the first time on appeal and this effort was fruitless. Nor do we find the district court's citation to Goss v. Revlon, Inc., 548 F.2d 405 (2d Cir.1976), cert. denied, 434 U.S. 968, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977), as appropriate authority for denying an amendment in this case. The Goss court's mention that denial of plaintiff's motion to amend would not be an abuse of discretion was entirely dicta because the original complaint was held to be time barred, and the case was in any event remanded to the district court "for a determination of appellant's ...