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Daniel v. Heartland Employment Services LLC

United States District Court, E.D. Michigan, Southern Division

December 20, 2016

Diamond L. Daniel, Plaintiff,
v.
Heartland Employment Services, LLC., Defendant.

          Patricia T. Morris United States Magistrate Judge.

          OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT [17]

          Hon. Gershwin A. Drain United States District Court Judge.

         I. Introduction

         This is a whistleblower action. Plaintiff brings this claim against her former employer and alleges that she was unlawfully terminated after she reported a suspected violation of Michigan law. This action was originally brought in the Circuit Court for Macomb County, then removed based on diversity. Pending before the Court is the Plaintiff's Motion for Leave to Amend Complaint [17]. For the reasons stated below, the Court will GRANT Plaintiff's Motion.

         II. Procedural History

         Diamond Daniel (hereinafter “Plaintiff”) filed this action on March 14, 2016. Dkt. No. 1-2, p. 2 (Pg. ID 11). On April 5, 2016, the Defendant timely removed this case to federal court and filed its answer to the Complaint. Dkt. No. 1. On July 12, 2016, the Court issued an amended scheduling order. Dkt. No. 9. Pursuant to that scheduling order, discovery was due by December 15, 2016, the motion cut-off was set for January 17, 2017. Id. A jury trial is currently set for June 20, 2017. Id.

         On November 30, 2016, the Plaintiff filed a Motion for Leave to Amend her Complaint. Dkt. No. 17. Concurrence was denied. Id., p. 2 (Pg. ID 85). Plaintiff seeks leave to amend her Complaint to “raise an unpleaded issue” and to “clarify the extent of her whistle-blowing activities.” Id.

         This is a non-dispositive motion, therefore a response must have been filed within 14 days of service of the motion. See LR 7.1(e)(2)(B). Plaintiff served the Defendants on December 1, 2016. Dkt. No. 18. Therefore, Defendants had until December 15, 2016 to file their Response to the Plaintiff's motion. As of December 19, 2016, the Defendants have not filed a Response.

         III. Discussion

         “A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15. “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Id.

         In this case, the Plaintiff is outside the window for amending the Complaint as a matter of course. Because the opposing party does not consent, Plaintiff requires the Court's leave.

         “[D]istrict courts have discretion to permit or deny amendment after a defendant files an answer to a plaintiffs complaint” United States ex rel. Harper v. Muskingum Watershed Conservancy Dist., No. 15-4406, 2016 WL 6832974, at *7 (6th Cir. Nov. 21, 2016). “Despite [Rule 15's] liberal amendment policy, denial may be appropriate when there is ‘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' ” Brown v. Chapman, 814 F.3d 436, 443 (6th Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

         In the absence of a Response from the Defendant, the Court compared the original Complaint to the proposed Complaint. The Plaintiff made the following changes to the original Complaint:

• Amending the Defendant's name to reflect the real party in interest. See Dkt. No. 17-1, ...

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