The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SUZETTE GRILLOT, )
)
Plaintiff, )
)
-vs- )
) Case No. CIV-19-0241-F
STATE OF OKLAOMA ex rel. )
UNIVERSITY OF OKLAHOMA )
BOARD OF REGENTS, et al., )
)
Defendants. )
ORDER
Two motions are before the court.
1. The State of Oklahoma, ex rel. the Board of Regents of the University of
Oklahoma (the University) moves for dismissal of the first cause of action alleged
in the amended complaint. Doc. no. 21. Plaintiff filed a response brief, objecting
to dismissal. Doc. no. 23. The University filed a reply brief. Doc. no. 26.
2. Plaintiff moves for leave to file a second amended complaint. Doc. no.
22. The University filed a response brief, objecting to the motion. Doc. no. 24.
Plaintiff filed a reply brief. Doc. no. 25 (entitled as a response to the University’s
objection).
For the reasons stated in this order, both motions will be granted.
1. University’s Motion to Dismiss
The first cause of action alleges a first amendment retaliation claim against
the University under 42 U.S.C. § 1983. (The University is the only defendant with
respect to this claim.) The University, as an arm of the State of Oklahoma, asks
the court to dismiss it from this claim based on eleventh amendment immunity.
Because this is an immunity argument, the University seeks dismissal under Rule
12(b)(1), Fed. R. Civ. P., for lack of jurisdiction. The University also asks the court
to dismiss it from the first cause of action under Rule 12(b)(6), Fed. R. Civ. P.,
arguing that it is not a “person” within the meaning of § 1983.
Plaintiff’s response brief makes no arguments which contest the correctness
of the University’s immunity argument, and the court finds that plaintiff has
effectively conceded that argument. The motion to dismiss is GRANTED on that
basis. The State of Oklahoma, ex rel. University of Oklahoma Board of Regents is
hereby DISMISSED without prejudice from the first cause of action of the
amended complaint.1 Rule 12(b)(1), Fed. R. Civ. P. Given that result, the court
will not address the University’s Rule 12(b)(6) argument.
2. Plaintiff’s Motion to Amend
On September 12, 2019, the court entered a scheduling order which set an
October 12, 2019 (October 15, 20192) deadline for motions to amend. Doc. no. 18,
¶ 2. On November 18, 2019, plaintiff moved for leave to file a second amended
complaint. Because the time for amendments had expired when plaintiff moved to
amend, the standard which governs plaintiff’s motion is established by Rule
16(b)(4), Fed. R. Civ. P. Husky Ventures, Inc. v. B55 Investments, Ltd., 911 F.3d
1000, 1019 (10th Cir. 2018). Rule 16(b)(4) permits amendments only for good
1 Because eleventh amendment immunity is jurisdictional, dismissal is without prejudice. Colby
v. Herrick, 849 F.3d 1273, 1278 (10th Cir. 2017).
2The deadline established at the status and scheduling conference was October 12, 2019. Doc.
no. 18, ¶ 2. That date was the Saturday before a federal holiday on the upcoming Monday,
making motions for leave to amend due on Tuesday, October 15, 2019.
cause and with the judge’s consent. Id. In practice, this standard requires the
movant to show the scheduling deadlines could not be met despite the movant’s
diligent efforts. Id.
In support of her motion, plaintiff acknowledges that the amended complaint
(doc. no. 25, the currently operable version of the complaint) includes certain errors
which she seeks to rectify by another amendment. Plaintiff explains that the
amended complaint alleged her first amendment claim against the “Board, its
agents, or its officers,” instead of against Gallogly and Harper personally, as it
should have done. Doc. no. 22, p. 3. Plaintiff states that she also made an error in
the amended complaint when she removed Gallogly and Harper from the caption.
Id. Plaintiff’s proposed second amended complaint would correct these errors by
adding Gallogly and Harper to the caption as named defendants and by clearly
making them defendants, in their individual capacities, for purposes of the first
amendment claim. Plaintiff argues that these changes would be consistent with the
relevant allegations in the original version of the complaint (doc. no. 1, p. 15),
which alleged the first amendment claim against Harper and Gallogly in their
individual capacities. In addition to seeking leave to amend in order to correct her
errors, plaintiff states that if she is not given leave to amend, she will necessarily
file another lawsuit in which she will re-allege her original claims against Gallogly
and Harper in their individual capacities.
Although the more rigorous standard of Rule 16(b)(4) applies at this stage
(as opposed to the more liberal standard of Rule 15), the court will allow the
amendment for several reasons. First, diligence is a focus of Rule 16(b)(4). Here,
there has been no lack of diligence on plaintiff’s part. Assuming plaintiff realized
(or could have realized) her errors when the University filed its motion to dismiss,
plaintiff moved for leave to amend less than three weeks after the motion to dismiss
was filed. Second, the original version of the complaint included Gallogly and
Harper as individual defendants to the first amendment claim. Thus, although no
claims are stated against these individuals in the current version of the complaint,
Gallogly and Harper are not new to this action. Third, this action is not set for trial
until the September 8, 2020 docket. Fourth, as a matter of judicial economy, there
is no reason to put the parties (and the court) through the procedural steps involved
in the filing of another action against Gallogly and Harper, which would be
followed by a transfer of that new action to the undersigned and a consolidation of
that new action with this existing action.
After careful consideration, plaintiff's motion for leave to amend is
GRANTED. Plaintiff may file her proposed second amended complaint within
SEVEN days of the date of this order. If she does not file a timely and compliant
second amended complaint or obtain an extension of time within which to do so,
the amended complaint (doc. no. 19) will remain the operable pleading (albeit
without the first cause of action, which is dismissed in part one of this order).
IT IS SO ORDERED this 18" day of December, 2019.
UNITED STATES DISTRICT JUDGE
19-0241p003.docx