DANCE v. COMMONWEALTH OF PENNSYLVANIA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

GARY L. DANCE, JR. :

Plaintiff : CIVIL ACTION NO. 3:18-1593

v. : (JUDGE MANNION)

COMMONWEALTH OF :

PENNSYLVANIA, et al.

:

Defendants

:

MEMORANDUM

Presently before the court is the plaintiff Gary L. Dance, Jr.’s (“Dance”)

second motion to supplement his complaint to add newly ripe Title VII

claims.1 (Doc. 63). Based on the following, Dance’s motion will be

GRANTED.

I. BACKGROUND

On December 29, 2017, Dance filed a complaint in the Eastern District

of Pennsylvania (“Eastern District”). (Doc. 1). Dance’s complaint alleges five

1 Although the title of Dance’s motion indicates it is a motion for leave

to file a second amended complaint, it appears that Dance is actually seeking

leave to file a supplemental pleading to add claims that occurred after the

filing of the amended complaint. See Fed.R.Civ.P. 15(d) (“On motion and

reasonable notice, the court may, on just terms, permit a party to serve a

supplemental pleading setting out any transaction, occurrence, or event that

happened after the date of the pleading to be supplemented.”). Therefore,

the court will construe Dance’s motion as a motion for leave to file a

supplemental pleading pursuant to Rule 15(d).

counts all sounding in employment discrimination against defendants the

Commonwealth of Pennsylvania (“Commonwealth”), the Pennsylvania State

Police (“PSP”), and several individuals affiliated with the PSP, (collectively,

“Defendants”). Defendants filed a motion to dismiss and a motion to transfer

venue on April 23, 2018. (Doc. 10). After receiving briefs from the parties,

the Eastern District court held a hearing on June 19, 2018, regarding the

Defendants’ motion to dismiss. (Doc. 17). According to the Eastern District

court, at the hearing, Dance consented to dismiss some of the claims that

Defendants sought to dismiss in their motion. (Doc. 18). Then, on July 9,

2018, the Eastern District court issued a memorandum, (Doc. 18), and order,

(Doc. 19), which dismissed the claims agreed to by the parties and

transferred the case to this court.2

On August 27, 2018, Defendants filed another motion to dismiss, (Doc.

23), which this court granted on February 4, 2019, (Doc. 37). Considering

the statutes of limitation presented by Defendants in their motion to dismiss,

the court dismissed Dance’s claims under 42 U.S.C. §1983 that occurred

prior to December 29, 2015, and the claims under Title VII of the Civil Rights

Act of 1964 that occurred prior to September 15, 2015. Consequently, the

2 Counts I and II were dismissed as to the Commonwealth and the

PSP, and Counts III, IV, and V were dismissed as to all of the individual

defendants. These Counts are discussed in further detail below.

court dismissed three individual defendants, Colonel Marcus Brown,

Lieutenant Colonel George Bivens, and Captain Gregory Bacher, who no

longer had claims against them remaining. The remaining individual

defendants were Colonel Tyree Blocker, Major Edward Hoke, Director

Wendell Morris, Director Michael Witmer, Lieutenant Colonel Lisa Christie,

and Captain David Cain, (collectively, “Individual Defendants”).

Shortly after the court entered its order on February 4, 2019, Dance

obtained new legal counsel and filed a motion for reconsideration, which this

court denied. (Doc. 43; Doc. 56; Doc. 57). Dance also filed a motion for leave

to amend his complaint, (Doc. 50), which essentially sought to clarify the

allegations of the original complaint but did not add any additional claims.

Defendants did not oppose the motion, and the court granted the motion to

amend by order dated May 23, 2019. (Doc. 58).

Count I of the amended complaint alleged violations of Title VII by the

Commonwealth and the PSP. Count II alleged violations of the Pennsylvania

Human Relations Act (“PHRA”) by the Commonwealth and the PSP. Count

III alleged violations of Section 1983 by the Individual Defendants in their

personal capacities. Count IV alleged violations of the Equal Protection

Clause by the Individual Defendants in their personal capacities. Finally,

Count V alleged First Amendment retaliation by Individual Defendants.

Thereafter, Dance filed the present motion for leave to file a

supplemental pleading, (Doc. 63), and a brief in support, (Doc. 64). Dance

seeks to add four additional counts. The proposed Count VI alleges

violations of Title VII by the Commonwealth and the PSP. The proposed

Count VII alleges violations of Section 1983 by individual defendant Major

Hoke in his personal capacity. The proposed Count VIII alleges violations of

the Equal Protection Clause by Major Hoke in his personal capacity. Finally,

proposed Count IX alleges First Amendment retaliation by Major Hoke.

The proposed new Counts all pertain to Defendants’ alleged

discrimination against Dance in February and March 2019, and their alleged

failure to promote Dance from the position of Captain to Major in March 2019.

Dance indicates that the failure to promote him prompted him to file a new

EEOC charge on May 24, 2019, and that he received his right-to-sue letter

on July 3, 2019.

Defendants filed a brief in opposition to Dance’s motion, (Doc. 67), and

Dance filed a reply brief, (Doc. 68). The matter is now ripe for this court’s

review.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 15(d), “[o]n motion and

reasonable notice, the court may, on just terms, permit a party to serve a

supplemental pleading setting out any transaction, occurrence, or event that

happened after the date of the pleading to be supplemented.”

The standard under Rule 15(d) is “essentially the same” as that under

15(a), and leave to supplement should be granted unless it causes undue

delay or undue prejudice. Medeva Pharma Ltd. v. American Home Prods.

Corp., 201 F.R.D. 103, 104 n. 3 (D.Del.2001); see also Abney v. Younker,

No. 1:13-CV-1418, 2016 WL 1559154, at *1-2 (M.D.Pa. Apr. 18, 2016).

Under Rule 15(a), amendments to a pleading prior to trial may only

occur within twenty-one days of service, with the opposing party’s written

consent, or the court’s leave. Fed.R.Civ.P. 15(a)(1)-(2). “The court should

freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Third

Circuit has embraced a liberal approach to granting leave to amend to ensure

that “particular claim[s] will be decided on the merits rather than on

technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 486-87 (3d Cir. 1990).

Nevertheless, the court may deny a motion to amend, or in this case

to supplement a pleading, in the absence of substantial or undue prejudice

because of bad faith or dilatory motives, truly undue or unexplained delay,

repeated failure to cure deficiency by amendments previously allowed, or

futility of amendment. Heyl & Patterson Int’l, Inc., v. F.D. Rich Housing of

V.I., Inc., 663 F.2d 419, 415 (3d Cir. 1981).

III. Discussion

Here, Dance argues that he should be granted leave to supplement

the amended complaint because all pertinent factors weigh in his favor. More

specifically, Dance argues that there has been no undue delay since he filed

the new EEOC charge on May 24, 2019, shortly after the promotions at issue

occurred, received his right-to-sue letter on July 3, 2019, and filed the

present motion on July 19, 2019. Additionally, Dance argues that his motion

is not based on a dilatory motive, given the timing of the events above, and

that it is based in good faith and not futile, since it is based on many of the

same facts and circumstances forming the basis of the original and amended

complaints.

Finally, Dance argues that Defendants would not be unduly prejudiced

since discovery has not yet concluded and that there is no unfair surprise

because the claims Dance seeks to add are “almost perfectly parallel with

prior events already averred in this case.” (Doc. 64, at 11). In fact, Dance

argues, supplementation would be to the advantage of all parties because it

would avoid a separate federal lawsuit against the same defendants, arising

from the same circumstances, and involving overlapping decision makers.

Conversely, Defendants argue that Dance is attempting to group two

separate lawsuits into one. More specifically, Defendants contend that the

original Counts pertain to Dance’s promotion from Lieutenant to Captain,

from February 2012 to February 2018, whereas the new Counts pertain to

“a wholly separate promotion” from Captain to Major in March 2019. (Doc.

67, at 5). Therefore, Defendants argue, because the new claims do not stem

from the same transaction and involve different facts, witnesses, and several

different defendants, it should be filed as a separate claim.3

Here, the court will grant Dance leave to file a supplemental pleading.

Although Defendants argue that the events underlying the new claims

pertain to a different time period than the events alleged in the original and

amended complaints, that is precisely the point of a supplemental pleading.

Where an amended pleading covers matters that occurred at the time the

original pleading was filed, a supplemental pleading covers matters that have

occurred subsequently. See JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE

321-22 (5th ed. 2015). A supplemental pleading can be used, as in the

present case, to add related claims that have newly arisen. See Griffin v.

County School Board of Prince Edward County, 377 U.S. 218, 227 (1964)

(Rule 15(d) “plainly permits supplemental amendments to cover events

3 Defendants assert that to join the two actions would constitute a

misjoinder pursuant Federal Rule of Civil Procedure 21 and DirectTV, Inc. v.

Leto, 467 F.3d 842, 844 (3d Cir. 2006) (Misjoinder “occurs when there is no

common question of law or fact or when . . . the events that give rise to the

plaintiff’s claims against defendants do not stem from the same

transaction.”). However, as Dance points out in his reply brief, (Doc. 68),

misjoinder refers to joinder of parties, and Dance does not seek to add any

additional parties through his second amended complaint.

happening after suit . . . . Such amendments are well within the basic aim of

the rules to make pleadings a means to achieve an orderly and fair

administration of justice.”). Therefore, since Dance seeks to add nearly

identical claims that occurred after the filing of his amended complaint, the

grant of leave to supplement the pleadings is appropriate here, given

Defendants’ failure to demonstrate, or to allege, prejudice, undue delay, or

bad faith. Furthermore, although Defendants argue that the new Counts

involve different parties than the original Counts, Dance has not sought to

add these additional parties, since the new Counts are solely against the

named defendants Major Hoke, the Commonwealth, and the PSP.

Therefore, given the liberal standard the court is to apply to

supplemental pleadings, the absence of undue delay or bad faith by Dance,

and the minimal prejudice to the Defendants, the court will grant Dance’s

motion to supplement, (Doc. 63).

Accordingly, Dance’s motion for leave to file a supplemental pleading,

(Doc. 63), shall be GRANTED. An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: December 2, 2019

18-1593-03