Graded papers available outside my office.
Median: 27.14
Mean: 27
High: 40
Sample answer after the jump.
Plaintiff’s Motion for Leave to Amend to file a Third Amended Complaint (“TAC”) is DENIED.
A party may amend with written consent of all parties or with leave of court. FRCP 15(a)(2). A court “should freely give leave when justice so requires.” FRCP 15(a)(2). Justice so requires unless any of the six considerations identified in Foman v. Davis is present—undue delay, bad faith, dilatory motive, undue prejudice, repeated failure to cure, or futility of amendment.
Defendants offer two bases for denying leave: futility of amendment because the claim is untimely and undue delay.
Futility of Amendment
An amendment that states a claim for relief is futile if the claim in the amended pleading would not survive a 12(b) motion. The court applies to the motion for leave the analysis it would on a motion to dismiss the amended complaint. An amended pleading may be futile if it was filed after the statute of limitations has expired.
The Title VII claims in the TAC were filed outside the required limitations period. Plaintiffs must file Title VII claims within 90 days of receiving a right-to-sue letter from the Equal Employment Opportunity Commission. (Title VII § 5). Plaintiffs received that letter with respect to United Airlines on December 20, 2024. (TAC ¶ 31). They had until March 20, 2025 to file those claims against United. They did not seek leave to amend to add the Title VII claims until August 26, 2025, almost five months after the deadline.
Relation back overcomes the statute of limitations, and thus futility, by treating the claims in the amended pleading as if they were included in the prior, timely pleading. FRCP 15(c) speaks of relating back to the “original” pleading, but the focus is on the timely controlling to-be-amended pleading. The Second Amended Complaint (“SAC”) controls. Plaintiffs filed the SAC on February 28, 2025, within 90 days of receiving the EEOC letter; the Title VII claims against United would have been timely if in the SAC.
The question becomes whether the Title VII claims in the TAC relate back to the SAC. FRCP 15(c)(1)(C) controls where an amended pleading "changes the party; FRCP 15(c)(1)(B) controls where an amended pleading adds new claims against an existing party. The TAC adds new claims (Title VII) against an existing party (United). The amendment thus relates back where it asserts a claim arising out of the conduct, transaction, or occurrence set out in the prior pleading. FRCP 15(c)(1)(B). This looks to the real-world events giving rise to the claims in the amendment compared with those in the prior pleading.
The plaintiffs’ claims against United in the proposed TAC arise out of the same real-world events as the FCRA claims against United in the SAC (and all prior pleadings)—United requiring plaintiffs to take the COVID-19 vaccine, denying plaintiffs’ religiously based requests for accommodations without explanation, and imposing adverse employment consequences for their failure to take the vaccine. The legal theories have changed—prior pleadings asserted claims under the Florida Civil Rights Act rather than Title VII. But the real-world events remain the same—adverse employment action because they acted on their religious beliefs respecting vaccines.
The Title VII claims in the TAC are timely, as they relate back to the SAC.
Undue Delay
Undue delay encompasses two concerns. The first considers whether a party unduly delayed seeking leave and seeking to add new material (such as new claims), which turns on the reasons the party attempts to add material in the amendment rather than in prior pleadings. The second considers the effect of the amendment on the process—whether allowing amendment will cause unduly delay to the litigation.
Allowing these claims will not unduly delay proceedings. Although this civil action has been pending since late 2023, the case remains at the pleading stage, as plaintiffs struggle to assert viable claims. If the court grants leave to amend, these would be the sole claims against the sole defendant in the action and discovery would not yet have begun.
Nor has substantial time passed in including these claims. Engstrom and Shaw received their right-to-sue letter as to United in December 2024. Plaintiffs filed the original Complaint and Amended Complaint (“FAC”) prior to December 2024; they therefore could not have included Title VII claims against United in those pleadings. They could have (but did not) plead the Title VII claim in the SAC in February 2025. But only six months have passed between that first opportunity to include them and the instant motion.
But the movant must explain the delay and justify failing to plead the claim earlier. Plaintiffs’ motion states that the SAC pursued claims against United under the FCRA rather than Title VII because the latter has no cap on compensatory damages, offering an opportunity for greater recovery. (Morion ¶ 1).
While a permissible choice, it does not justify waiting an extra six months once the Title VII claims became available. Plaintiffs did forego some less-advantageous claims in prior pleadings. The SAC included a state tort claim against United, even though, like Title VII, state tort law caps compensatory damages. (IIED § 1). Moreover, the FCRA offers one less advantage than Title VII—plaintiffs can recover attorney’s fees under the latter (Title VII § 4) but not the former. (IIED § 2). Yet plaintiffs pursued the FCRA despite that disadvantage.
More importantly, plaintiffs did not face a bilateral choice—they could have included the Title VII claim alongside the FRCA claims, at least in the SAC. Plaintiffs pursue ordinary legal strategy by seeking to recover on all claims against an opposing party, FRCP 18(a); even where one claim is stronger than the other, the common strategy is to pursue both claims. In fact, plaintiffs followed that course in this action with respect to former party ALPA. The FAC and SAC asserted religious-discrimination claims against ALPA under both FCRA and Title VII; the relative advantage of the FCRA over Title VII did not deter the plaintiffs from including both claims against ALPA. It therefore cannot justify not including both claims against United in the SAC or in waiting six months to attempt to plead the Title VII claims against United.
