August 30, 2019 Practice Points

Develop the Theory Up Front: Proposed Amendment Fails to Defeat Summary Judgment

Departure from the original theory of the case carries risks.

By Joseph V. Schaeffer

A party opposing summary judgment under Rule 56 generally has three options: (1) identify a genuine issue of material fact from the discovery record, (2) develop a genuine issue of material fact in affidavit, or (3) submit an affidavit that additional time or discovery is needed to develop genuine issues of material fact. Fed. R. Civ. P. 56. Far less common is the method that the plaintiffs attempted in Simpson v. Temple University, Civil Action No. 18-2272, 2019 WL 3496206 (E.D. Pa. Aug. 1, 2019).

Simpson had sued Temple for allegedly firing her after she sought leave under the Family Medical Leave Act (FMLA).  Discovery revealed, however, that Temple had decided to fire Simpson—and had started the paperwork to do so—before she had even submitted her FMLA request. Temple accordingly moved for summary judgment.

Rather than respond to the substance of Temple’s summary-judgment motion, Simpson moved for leave to amend her complaint. Her proposed amended complaint had two key differences from the original. First, it alleged that Simpson’s supervisor had acknowledged knowing of her FMLA request before terminating her. And second, it added a new cause of action for pretextual termination. Temple opposed the amendment.

The court evaluated the request under the traditional Rule 15 framework where leave shall be freely given except where there is undue delay, prejudice, bad faith, or futility. The court found undue delay because Simpson offered no justification for changing her theory of the case—after substantial discovery and a summary-judgment motion—other than the need to “correct a pleading error.” The court found prejudice because the parties had engaged in 10 months of discovery based on “a different and contradictory set of facts.” And the court found bad faith because, similar to a “sham affidavit,” Simpson raised new allegations in the proposed amendment that contradicted those developed in discovery. The court did not address futility.

Summarizing Simpson’s motion as an effort to “amend her complaint in a manner that is flatly contradicted by the record, [and] offering no explanation apart from counsel’s suggestion that he made an error in pleading the case,” the court denied the proposed amendment—with the likely result that Temple’s motion for summary judgment will be granted. Simpson v. Temple University thus highlights the risk of using amendments to defeat summary judgment, particularly when they represent an unexplained departure from the plaintiff’s original theory of the case.

Joseph V. Schaeffer is with Spilman Thomas & Battle, PLLC in Pittsburgh, Pennsylvania.


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