United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge
Willie Underwood, III, M.D. (“Plaintiff”) brings
this action to remedy alleged racial discrimination and
retaliation by his employer, Roswell Park Cancer Institute
(“Roswell Park”), and his supervisor, James
Mohler, M.D. (“Dr. Mohler”). Presently before the
Court is Plaintiff's motion for leave to file a Second
Amended Complaint pursuant to Rule 15(a)(2). ECF No. 39.
Plaintiff also asks for partial reconsideration of this
Court's previous decision, see ECF No. 26, which
dismissed certain claims from Plaintiff's First Amended
Complaint. The Court assumes the parties' familiarity
with that decision and with the basic facts of this case. For
the reasons stated below, Plaintiff's motion for leave to
amend is granted and Plaintiff's motion for
reconsideration is denied as moot.
Background and Procedural History
originally commenced this action on July 28, 2015 with a
complaint drafted by attorney Catherine Creighton. ECF No. 1.
Roswell Park and Dr. Mohler each filed motions to dismiss.
ECF Nos. 7, 8.
November 18, 2015, Plaintiff-this time through attorney Paul
Boylan, Esq.-filed an amended complaint as of right under
Rule 15(a)(1)(B). ECF No. 10. Again, on January 8, 2016,
Roswell Park and Dr. Mohler each filed motions to dismiss.
ECF Nos. 15, 16. This time, Plaintiff responded to the
motions to dismiss. ECF Nos. 22, 23. Roswell Park and Dr.
Mohler each filed reply briefs. ECF Nos. 24, 25.
responses to the motions to dismiss, Plaintiff appeared to
concede that some of his claims were not viable while also
hinting at a “Second Amended Complaint” that did
not exist. For example, in response to Dr. Mohler's
argument that individuals are not liable under Title VII,
Plaintiff stated that he “does not seek to hold Mohler
personally or individually liable . . . Plaintiff's
proposed Second Amended Complaint resolves this issue.”
ECF No. 22, at 2. With respect to the § 1983 claim
against Dr. Mohler in his official capacity, Plaintiff
conceded that “the official capacity claims against
Defendant Mohler are unnecessary. Plaintiff, with this
Court's permission, will file a Second Amended Complaint
to reflect such changes.” Id. at 18.
Defendants also argued that under the Supreme Court's
decision in Jett v. Dallas Independent School
District, 491 U.S. 701, 735 (1989), Plaintiff was barred
from asserting an independent claim for relief under §
1981 because Roswell Park is a state actor. Plaintiff first
responded by noting that it was unclear whether Jett
had been statutorily overruled, but then stated that
“out of an abundance of caution and with the permission
of this Court, Plaintiff will address this issue in his
proposed Second Amended Complaint by re-pleading the Section
1981 claims against Defendant Mohler, consistent with the
holding in Jett, through Section 1983.”
Id. at 20. Finally, with respect to Defendants'
arguments that the Health Care Quality Improvement Act
(“HCQIA”) does not provide a private right of
action and that claims against Does 1-50 should be dismissed,
Plaintiff merely stated that “Plaintiff's proposed
Second Amended Complaint makes the above point moot.”
Id. at 29. Plaintiff made similar statements in his
response to Roswell Park's motion to dismiss.
See ECF No. 23.
January 13, 2017, this Court issued a Decision and Order
granting in part and denying in part Defendants' motions
to dismiss. ECF No. 26. Due to the fact that Plaintiff had
not filed a Second Amended Complaint or moved for leave to
amend his First Amended Complaint, the Court interpreted
Plaintiff's statements as an indication that he had
withdrawn some of his claims. For example, the Court
dismissed Plaintiff's § 1981 claim because
“Dr. Underwood no longer wishes to pursue an
independent claim for relief under § 1981.”
Id. at 29. Similarly, the Court dismissed
Plaintiff's claim for punitive damages against Roswell
Park because “Dr. Underwood does not contest that
Roswell Park should be treated as a municipality.”
Id. at 40. The Court also dismissed the breach of
contract claim in Plaintiff's First Amended Complaint
because that claim was based on Roswell Park's bylaws and
hospital bylaws generally do not give rise to contractual
obligations under New York law. Id. at 38-39.
February 10, 2017, attorney Jeanne Christensen of Wigdor LLP
filed a notice of appearance on behalf of Plaintiff. ECF No.
34. On March 3, 2017, Plaintiff filed a motion for leave to
file a Second Amended Complaint and for partial
reconsideration of this Court's Decision and Order. ECF
No. 39. Roswell Park and Dr. Mohler each filed briefs in
opposition to Plaintiff's motion. See ECF Nos.
Proposed Second Amended Complaint
proposed Second Amended Complaint is more concise and
organized than his First Amended Complaint. In the Second
Amended Complaint, Plaintiff no longer includes frivolous
claims against Dr. Mohler in his official capacity, claims
under the HCQIA, or claims against “Does 1-50.”
See ECF No. 41-1.
Second Amended Complaint also attempts to cure certain
deficiencies in the First Amended Complaint. For example,
instead of asserting a breach of contract claim premised on
Roswell Park bylaws, Plaintiff asserts a breach of contract
claim based on the actual employment contracts that Plaintiff
signed in 2008, 2011, and 2012. See ECF No. 41-1, at
60-61. Plaintiff attached these contracts to the Second
Amended Complaint. See ECF No. 41-1, Exs. A, B, C.
Second Amended Complaint, Plaintiff also re-asserts claims
under § 1981 and again seeks punitive damages.
See ECF No. 41-1. However, unlike in his First
Amended Complaint, Plaintiff now argues that Roswell Park is
not a state actor. Plaintiff includes detailed
factual allegations to support his position that Roswell Park
should be considered a private entity for the purposes of
liability under § 1981 and immunity from punitive
damages. Id. at ¶¶ 27-39.
Plaintiff's Second Amended Complaint includes a separate
aiding and abetting claim under the New York State Human
Rights Law (“NYSHRL”) against Dr. Mohler.
Id. at 54.
Motion for Leave to Amend
Rule 15(a)(1), a party may amend its pleading once as a
matter of course under certain circumstances. In all other
situations, Rule 15(a)(2) provides that “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.” (emphasis
the decision whether to grant leave to amend is within the
discretion of the district court, refusal to grant leave must
be based on a valid ground.” Ronzani v. Sanofi
S.A., 899 F.2d 195, 198 (2d Cir. 1990). In Foman ...