Simpson v. Xerox Educ. Servs., LLC
| Decision Date | 22 October 2020 |
| Docket Number | CIVIL ACTION NO. 3:17-CV-76-RGJ-CHL |
| Parties | ROSE M. SIMPSON, Plaintiff, v. XEROX EDUCATION SERVICES, LLC, et al., Defendants. |
| Court | U.S. District Court — Western District of Kentucky |
On March 3, 2020, the Court issued a Memorandum Opinion and Order (DN 84) denying the Motions to Amend (DNs 63, 71) filed by pro se Plaintiff Rose M. Simpson ("Simpson"). Thereafter, Simpson contacted both the undersigned's Case Manager and the Clerk's Office claiming that documents she brought to the Clerk's office for filing were not properly filed in the record and/or were not attached to the correct motion filed in the record. Specifically, she claimed that the exhibits to her August 8, 2019, Motion for Leave to File a Redacted Version of Document (DN 70) and her Motion to Amend her Complaint (DN 71) were mixed up. Simpson also claimed that other documents she intended to file were missing from the record. The Court set a call to discuss Simpson's concerns. (DN 85.)
During the call, Simpson claimed the record was still missing: (1) a federal direct consolidation loan verification certificate; (2) an express pay pay-by-phone authorization report; (3) a client audit review report; and (4) an August 16, 2015, Experian credit report, and that the Borrower History and Activity Report was attached to the wrong motion. (DN 86.) In light of Simpson's claim, the Court indicated that it would reconsider its prior opinion and ordered Simpson to file in the record the above-mentioned four documents. (Id.) The Court specified that Simpson was not to submit any additional argument regarding these documents, merely the documents themselves. (Id.) The Court also permitted Defendants, Conduent Education Services, LLC f/k/a Xerox Education Services, LLC, d/b/a ACS Education Services and Conduent, Inc. ("Defendants"), to file a response as to the impact of these additional documents on Simpson's prior motions to amend (DNs 63, 71) and the reasoning of the Court's prior ruling (DN 84). Defendants were not to reargue prior points but were instructed to limit their responses to the new documents. (Id.) Finally, the Court permitted Simpson to file a reply regarding only any issues raised in Defendants' response. (Id.) Simpson has now filed her supplemental documents (DN 87), and Defendants filed a response (DN 91).1 Simpson then filed a reply (DN 91).2
The Court will now reconsider its prior March 3, 2020, Memorandum Opinion and Order (DN 84) in light of the new documents submitted by Simpson. The Court possesses the inherent authority to reconsider its interlocutory orders at any time. See, e.g., Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991); Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 118 F. App'x 942, 945-46 (6th Cir. 2004). The Court incorporates its prior March 3, 2020, Memorandum Opinion and Order (DN 84) as if set forth fully herein.
For the reasons set forth below, Simpson's Motion to Amend Complaint & Request for Additional Assistance (DNs 63, 71) is DENIED.
The Sixth Circuit has held that in considering a request to amend a complaint past the deadline set for amending pleadings, "a plaintiff first must show good cause under Rule 16(b) for failure earlier to seek leave to amend before a court will consider whether amendment is proper under Rule 15(a)." Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003).
In evaluating whether a party has shown "good cause" within the meaning of Fed. R. Civ. P. 16(b), the primary consideration is "the moving party's diligence in attempting to meet the case management order's requirements." Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001)); see also Fed. R. Civ. P. 16(b) advisory committee's note to 1983 amendments ("[T]he court may modify the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the party seeking the extension."). Additionally, a court must consider whether modification of the scheduling order will prejudice the opposing party. Leary, 349 F.3d at 906.
As to whether the amendment is proper, Fed. R. Civ. P. 15 provides that "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). However, a Court may appropriately deny leave to amend based on "undue delay, bad faith or 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, futility of amendment, etc."3 Foman v. Davis, 371 U.S. 178, 182 (1962).
The Court previously found that Simpson has not shown good cause for seeking leave to amend past the March 1, 2019 deadline established in DN 54. (DN 84.) As the Court previously noted, this would be Simpson's third amended complaint and the fourth complaint overall. Each of the three prior complaints was followed by a motion to dismiss requiring briefing by the Parties and a decision by the Court. "[A]lthough courts 'must give a party a fair chance to present claims and defenses, [the court] must also protect a busy district court [from being] imposed upon by the presentation of theories seriatim.'" Anderson v. Kentucky One Health, Inc., No. 3:17-cv-359-TBR, 2017 WL 6347966, at *2 (W.D. Ky. Dec. 12, 2017) (quoting Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1025 (5th Cir. 1981)). Simpson has had ample previous opportunities to amend her Complaint and has not supported her claim that her current allegations are based on new evidence.
And even if Simpson had shown good cause, Defendants would be significantly prejudiced by the allowance of yet another amended complaint. Fact discovery has concluded and would have to be reopened if Simpson added new allegations to her complaint. (DN 84, at PageID # 1244.) This case is ready to proceed to a settlement conference and dispositive motions, both of which would likely be further postponed in the case of an amendment. (Id.)
None of the documents included in Simpson's supplemental filing (DN 87-1) alters these conclusions. None of them offers new evidence, and none offers information that was not already available before the March 1, 2019, deadline.
First, the federal direct consolidation loan verification certificate simply confirms the position that Defendants have taken since the start of this case: that Simpson consolidated her loans in 2005 rather than paying them off. Simpson knew that to be Defendants' position and said so in her complaint all the way back in February of 2017: "ACS stated that I consolidated my loans again in 2005 and again 6 months later in 2006." (DN 1, at PageID # 5.) Thus, if Simpson suspected that Defendants were engaged in fraudulent behavior (i.e., claiming that she merely consolidated her loans as opposed to paying them off) in 2017, there is no reason for her to have waited until after the March 1, 2019 deadline—over two years after filing her initial complaint—to include such a claim. "A plaintiff does not establish 'good cause' to modify a case schedule to extend the deadline to amend the pleadings where she was aware of the facts underlying the proposed amendment to her pleading but failed, without explanation, to move to amend the complaint before the deadline." Ross v. Am. Red Cross, 567 F. App'x 296, 306 (6th Cir. 2014).
Second, the express pay pay-by-phone authorization report contains no new information that could support a claim. The report shows that Simpson made loan payments on June 20, 2005 and July 18, 2005. (DN 87-1, at PageID # 1398.) But that same information was readily available to Simpson in the Borrower History and Activity Report she received in the 2015 VA lawsuit. (DN 74-5, at PageID # 785.) Thus, to the extent that information does support a claim, it is a claim that Simpson knew of in 2015. Simpson should therefore have included that claim in her initial 2017 complaint or could have sought leave to amend well before the March 1, 2019, deadline.
Third, the client audit review report suffers the same fatal flaw as the pay-by-phone authorization form discussed above. The client audit review report shows loan disbursement and repayment amounts and other activities from 2002 through 2017. (DN 87-1, at PageID # 1399-1405.) But most of the information contained in that report, including the June and July 2005 loan payments, were also reflected in the Borrower History and Activity Report that Simpson received in the 2015 VA lawsuit. (DN 74-5, at PageID # 771-790.) Thus, any information that Simpson has now to support a new claim is again information she possessed in 2015 and should therefore have been included in her initial 2017 complaint or been the basis of an earlier motion for leave to amend.
Fourth, the 2015 Experian credit report states that it was "prepared for Rose M Simpson." (DN 87-1, at PageID # 1406.) The report was generated on August 16, 2015. (Id.) Thus, the credit report was in Simpson's possession before filing her initial 2017 complaint. (DN 87-1, at PageID # 1406.) Therefore, it does not constitute new evidence.
Fifth, Simpson also included Unemployment Deferment Request forms in her supplemental filing. (DN 87-1, at PageID # 1409-1413.) Notwithstanding that the Court's order limited Simpson to filing the four documents discussed above, these forms do not constitute new evidence. Simpson had access to these documents—indeed, she signed and dated them herself—on February 10, 2011, August 24, 2011, September 9, 2011, and April 10, 2012. (Id.) Simpson cannot claim that documents she possessed in 2011 and 2012 somehow constitute "new" evidence nearly a decade later.
Finally, the Borrower History and Activity Report (DN 70-2), which the Court indicated in its prior opinion that Simpson did not submit and which the Court has now had the opportunity to review, further...
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