United States District Court, D. Utah
GUY M. DOMAI, Plaintiff,
AMERICAN EXPRESS, Defendant.
MEMORANDUM DECISION AND ORDER
BENSON, UNITED STATES DISTRICT JUDGE.
the court is the Report and Recommendation issued by United
States Magistrate Judge Evelyn J. Furse on October 31, 2017,
recommending dismissal of this case pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim upon
which the court can grant relief. (Dkt. No. 13.) The parties
were notified of their right to file objections to the Report
and Recommendation within 14 days of service pursuant to 28
U.S.C. § 636 and Fed.R.Civ.P. 72. Plaintiff submitted an
Objection to the Order, as well as additional filings related
to the Objection, on November 3, 2017, November 8, 2017,
November 14, 2017, and January 4, 2018. In those filings,
Plaintiff argued for and submitted a proposed amended
complaint to include new parties and claims. (Dkt. Nos. 14,
16, 17, and 19.)
court has performed a de novo review, including a review of
the record that was before the magistrate judge and the
reasoning set forth in her Report and Recommendation. The
court agrees with the reasoning and assessment of Judge
Furse. All four elements of claim preclusion are met with
respect to Plaintiff's Complaint. (Dkt. No. 3.) The court
must now analyze the effect of Plaintiff's proposed
amendment-submitted in the form of an Objection- on that
Report and Recommendation.
proposed amended complaint, Plaintiff seeks to add five new
parties-Stephen Squeri, the current CEO of American Express;
Kevin Cox, Chief Human Resources Officer of American Express;
Global Servicing Network, the “business unit that
carries the Global Automation Deployment Team which was the
plaintiff's team”; Global Automation Deployment,
for which Plaintiff provides no description; and American
Express Travel Related Services, Inc., the business entity
Plaintiff seems to allege was his actual employer. (Dkt. No.
16, 19.) Plaintiff also seeks to include
“new” claims for: breach of promise under
promissory estoppel; wrongful discharge in violation of
public policy; wrongful discharge from employment in breach
of contract; and termination of at will employment in
violation of public policy.
facts Plaintiff alleges to support the amendment are the same
as those submitted to this court previously in two other
cases: Domai v. American Express, 2:13-cv-567-TS (D.
Utah) (“Domai I”) and Domai v. American
Express, 2:15-cv-542-CW (D.Utah) (“Domai
II”), as well as in the Complaint on file in this
matter. Plaintiff alleges that in May 2011, he called in sick
to work for several days. (Dkt. No. 19 at 7.) Plaintiff then
received a letter from Jeff Shane on May 17, 2017, advising
him that he was a “no show no call” and advising
him to “contact Sedgwick CMS immediately” to
request FMLA leave. (Id.) On May 19, 2011, Plaintiff
submitted a doctor's note to Mr. Shane, requesting that
Plaintiff “be excused until the 22nd of May
2011.” (Id. at 8.) Plaintiff's employment
was terminated on or about May 20, 2011. (Id. at 6.)
All of Plaintiff's claims as currently pled, as well as
the proposed additional claims, stem from the termination of
Plaintiff's employment in May 2011.
filings seek to add new parties and claims. Accordingly, the
court analyzes it as a motion to amend pursuant to Rule 15(a)
of the Federal Rules of Civil Procedure. Frank v. U.S.W.,
Inc., 3 F.3d 1357, 1365 (10th Cir. 1993). Rule 15(a)
provides that leave to amend “shall be freely given
when justice so requires.” Fed.R.Civ.P. 15(a). However,
refusal of leave to amend is “justified upon a showing
of undue delay, undue prejudice to the opposing party, bad
faith or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of
amendment.” Id. Whether leave to amend should
be granted is within the trial court's discretion.
First City Bank, N.A. v. Air Capitol Aircraft Sales,
Inc., 820 F.2d 1127 (10th Cir.1987).
respect to the newly proposed individual defendants, Mr.
Squeri and Mr. Cox, Plaintiff's proposed amended
complaint is futile, because Plaintiff has provided no facts
to support a finding of individual liability against those
proposed defendants under any of the theories proposed by
Plaintiff. Neither individual had any contact with Plaintiff
while he was employed, and neither individual was involved in
any way with Plaintiff's termination. Plaintiff merely
alleges that these individuals were policymakers at American
Express and that those policies were violated with respect to
his termination. Those allegations, even if true, do not
support a finding of individual liability with respect to
those defendants. Accordingly, an amendment to add those
individuals as defendants would be futile.
proposed amendment is also futile with respect to
“Global Servicing Network” and “Global
Automation Deployment” because those
“parties” do not appear to be business entities.
Rather, Plaintiff seems to allege that these are groups
within American Express. As discussed by Judge Furse,
Plaintiff's claims against American Express Corp. have
already been litigated on their merits, and Plaintiff cannot
attempt to circumvent that process by naming subgroups within
that legal entity.
Plaintiff appears to allege that American Express Travel
Related Services, Inc., rather than American Express Corp.,
was his employer and that he should be allowed to amend to
bring claims against that entity. Factually, this claim is
difficult to square with Plaintiff's allegations in Domai
I and Domai II that he was employed by American Express Corp.
and American Express Corp.'s response to those
allegations. However, even disregarding that factual
inconsistency, Plaintiff's proposed amendment would not
be in the interests of justice. See Fed. R. Civ. P.
Tenth Circuit, several factors guide courts in considering
whether to allow amendment of a complaint, including
“whether the amendment will result in undue prejudice,
whether the request was unduly and inexplicably delayed, was
offered in good faith, or that the party had sufficient
opportunity to state a claim and failed.” Las Vegas
Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d
1182, 1185 (10th Cir. 1990). Furthermore, “[i]t is well
settled in this circuit that untimeliness alone is a
sufficient reason to deny leave to amend, especially when the
party filing the motion has no adequate explanation for the
delay.” Frank, 3 F.3d at 1365 (quoting
Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452,
1462 (10th Cir.1991); Las Vegas Ice, 893 F.2d at
1185; First City Bank, 820 F.2d at 1133). And
“[w]here the party seeking amendment knows or should
have known of the facts upon which the proposed amendment is
based but fails to include them in the original complaint,
the motion to amend is subject to denial.” Id.
(quoting Las Vegas Ice, 893 F.2d at 1185).
these factors weigh against allowing Plaintiff's proposed
amended complaint. First, Plaintiff has already litigated two
other cases in this district premised on identical facts
raised in his proposed amended complaint. It is unduly
prejudicial to Plaintiff's employer to litigate multiple
lawsuits, after having received a judgment on the merits with
respect to Plaintiff's termination. Second, Plaintiff
knew or should have known the identity of his employer during
his employment and after its termination, and he failed to
include American Express Travel Related Services, Inc. in any
of his previously filed complaints. Third, in light of
Plaintiff's two previous lawsuits, which were filed in
2013 and 2015, Plaintiff's proposed amendment is unduly
and inexplicably delayed, even taking into consideration
Plaintiff's status as a pro se litigant. Fourth,
Plaintiff has had many opportunities during this lawsuit and
his two previous suits to state a claim upon which relief may
be granted and has failed to do so. Finally, Plaintiff's
proposed amendment is not submitted in good faith-Plaintiff
has named myriad parties in this lawsuit and his previous
two, and has now ...