BAEC Bulletin | November/December 2022 | 43
and then dismissed the breach of contract claim as “facially meritless.” First Amendment Right to Free Speech In Searle v. Red Creek Central School District, 21-cv-6086- FPG (Aug. 18, 2022)—an action under the First and Fourteenth Amendments of the United States Constitution—plaintiff sued the school district and its superintendent where his two children were enrolled after receiving a notice directing that he not contact any faculty or staff or come on school grounds without written permission of the superintendent for the remainder of the school year. This restriction followed numerous emails from plaintiff replete with abusive and inappropriate language and requests to terminate school staff that had become increasingly strident to the point of being harassing in the view of defendants. Plaintiff contended that the notice was sent for the purpose of inhibiting and punishing him for his constitutionally-protected right of free speech, without any rational basis, and solely to treat plaintiff differently than other similarly-situated parents. The Court noted that, to state a claim for retaliation under the First Amendment, plaintiff must plausibly allege i) an interest protected by the First Amendment, ii) conduct by defendants motivated by the exercise of that right, and iii) that defendants effectively chilled the exercise of that right or caused some other concrete harm. The Court concluded that the complaint did not plausibly allege that his First Amendment right to free speech had been “chilled” because it contained no allegation that plaintiff had indeed changed his behavior after receiving the notice nor that he had requested access to the District facilities and was subsequently denied. For similar reasons his claim for selective enforcement under the Fourteenth Amendment also was futile, because plaintiff did not plausibly allege that the supposed differential treatment was based on an impermissible consideration (such as race or religion), and failed to identify any similarly-situated individuals who supposedly were treated differently or how the District’s conduct was irrational or motivated by animus. Accordingly, defendants’ motion to dismiss was granted. Employment Discrimination In Martin v. SS Columba-Brigid Catholic Church, et al., 21-cv-491-GWC (Aug. 11, 2022), plaintiff, a choir director at defendant’s church, brought an action for employment discrimination alleging that she was wrongfully terminated on the basis of her race. The Court granted defendants’ motions to dismiss the federal claims because they were barred by the so-called ministerial exception. The ministerial exception bars employment discrimination claims brought by ministers against religious groups that employ them, to ensure that the authority to select and control who will administer to the faithful - - a matter strictly ecclesiastical - - is the church’s alone. An affirmative defense as opposed to a jurisdictional bar, the ministerial exception is not limited to the head of a religious congregation, and there is no rigid formula for deciding when an employee qualifies as a minister. On the basis of numerous facts alleged in the complaint, including that the pastor was plaintiff’s supervisor and that she arranged music for mass, the Court concluded that plaintiff performed duties with a “significant religious dimension,” and that her leadership of the choir formed an “integral part” of the Catholic tradition. Concluding that, if the Court attempted to resolve this dispute, it would impermissibly entangle itself with religious doctrine, the Court concluded that the ministerial exception barred plaintiff’s federal employment discrimination claims.
Leave to Amend In Thomas v. Conagra Foods, Inc., et al., 20-cv-6239-EAW-MJP (Aug. 26, 2022)—an action for products liability—plaintiff alleged in her complaint she was injured from the combustion of a specific brand of cooking spray can. During discovery, plaintiff informed defendants that she had not preserved the subject can and that the product may have been labeled differently than alleged. During the deposition, plaintiff testified that she recalled that the cooking spray can was indeed labeled differently than alleged in the complaint and that she had not told anyone that the cooking spray can was branded as alleged in the complaint. Well after the deadline to do so had passed, plaintiff moved for leave to amend the complaint to allege the new brand, and the Court denied the motion. According to the Court, two rules guided its analysis of the untimely motion for leave to amend: Rule 15(a)(2) provides that, after the time for leave to amend as of right has expired, a party may amend its pleading only with the consent of its opponent or Court leave, which should freely be given; and, Rule 16(b)(4) provides that a “schedule may be modified only for good cause and with the Judge’s consent.” In applying these two rules, the Court noted that the standards Rule 16(b) must be met first and cannot be short circuited by an appeal to those of Rule 15(a). In denying the motion, the Court concluded that plaintiff possessed knowledge supporting the amended pleading prior to the expiration of the deadline and had ample opportunity either to investigate and determine the cooking spray can brand, to note the ambiguity, or to seek an extension of the deadline to amend. Plaintiff therefore had not been diligent, and the good cause for her delay in bringing the motion, as required by Rule 16(b), was lacking. Discovery Extensions In Gentner v. Navient Solutions, Inc., 20-cv-747-LJV-JJM (Aug. 12, 2022)—an action brought under the Telephone Consumer Protection Act of 1991—the Court provides another reminder that a party seeking an extension of a discovery deadline under Rule 16 must proceed with diligence and establish good cause, and those requirements will be strictly enforced by the Court. Here, less than one week before the discovery deadline, defendant moved to stay the proceedings to await a looming decision from a pending United States Supreme Court appeal. In a text order setting a briefing schedule for the stay motion, the Court noted that, “[u]nless ordered otherwise, the deadlines of the [CMO] . . . remain in effect.” With defendant’s consent, plaintiff then moved, on the final day for discovery under the CMO, to extend the fact discovery deadline, and argued that, when she earlier had granted defendant a 30-day extension to respond to her discovery requests, she relied on defendant to request a corresponding extension of the CMO deadlines. The Court concluded that plaintiff had proceeded at her own risk, her reliance did not merit sufficient good cause, and she also had not been diligent because she failed to bring her motion to extend the discovery deadline herself until the last minute. Noting that, “if the courts do not take seriously their own scheduling orders who will?”, the Court denied the motion. “if the courts do not take seriously their own scheduling orders who will?”
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