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RESPONSE filed by Barbara Cherry, Michael Evans, Texas Tech University Health Sciences Center (TTUHSC) re: 32 MOTION for Leave to File Amended Complaint (Attachments:

Pickett v. Texas Tech University Health Sciences Center (TTUHSC) et al, No. 5:20-cv-00232-H-BQ (N.D. Tex.) · Dkt. 34 · 2021-09-17 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

Case 5:20-cv-00232-H-BV

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
AMY PICKETT,
Plaintiff,

§
§
§
v.
§
§
TEXAS TECH UNIVERSITY HEALTH
§
SCIENCES CENTER; BARBARA CHERRY, §
individually and in her official capacity as
§
Department Chair of Leadership Studies; and
§
MICHAEL EVANS, individually and in his
§
official capacity as Dean of School of Nursing, §
Defendant.
§

Civil Action No. 5:20-CV-00232-H-BQ

DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION
FOR LEAVE TO FILE AMENDED COMPLAINT OUT OF TIME
TO THE HONORABLE JUDGE JAMES WESLEY HENDRIX:
Defendants Texas Tech University Health Sciences Center, Barbara Cherry, and Michael
Evans respectfully request the Court deny Plaintiff Amy Pickett’s Motion for Leave to File an
Amended Complaint (the Motion) out of time for three reasons. First, the amendment is not timely
under the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (FCR).
Dkt. 28. Second, the amendment does not comply with the FCR’s limitation on amending only as to
the Rehabilitation Act (RA) and Americans with Disabilities Act (ADA) claim based on the October
2, 2018, exam start time. Id. at pp. 42–43. Third, Pickett has not demonstrated good cause for allowing
the amendment because to do so would be futile.
ARGUMENT
I.

The proposed amended complaint is untimely under the Court’s Recommendation.
In the FCR, Pickett was instructed that, if she elected to amend her complaint as to her ADA

or RA failure-to-accommodate claims based on the October 2, 2018 exam, she “do so within the

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fourteen days allotted for objections to [the] recommendation.” Dkt. 28 at p. 43. The FCR was
filed on July 30, 2021, making Plaintiff’s amended pleading due on August 13, 2021. And although
Defendants agreed with Pickett on August 18, 2021, that she could delay filing an amended complaint
if she did so by August 25, 2021, and so long as the amendment complied with the FCR’s limitation
on scope, Dkt. 33 at p. 7, Pickett still filed untimely on August 27, 2021—two weeks later than the
original deadline. The Court should deny the Motion because it is untimely under the FCR.
II.

Pickett has not complied with the recommendation to limit the scope of the
amendment.
The FCR instructed Pickett would be allowed to amend “only as to the . . . failure-to-accommodate

allegations” premised on denial of accommodations in connection with course 5440 and the October
2, 2018, exam start time. Dkt. 28 at pp. 42–43. Pickett’s Proposed Amended Complaint, however,
adds several factual allegations beyond the scope specified in the FCR. Dkt. 32.1 ¶¶ 29, 58–61, 82–84.
For instance, Pickett appears to be adding new factual allegations regarding her reasonable
accommodation claim premised on the alleged denial of deadline extensions from her advisor. Id.
¶ 29. Further, Pickett adds irrelevant material concerning her employment-related issues that is not
related to her ADA and RA claims—it is unclear for what purpose this material is offered, but it
nevertheless fails to comport with the FCR. Id. ¶¶ 58–61. Under the Cause of Action heading for
Pickett’s ADA and RA claims, she includes new allegations of breach of contract, retaliation, and that
she was denied a due process appeal, which would be causes of action separate and apart from her
claims for disability discrimination and failure to accommodate. See id. ¶¶ 82–84. The Court should
deny Pickett leave to file these amendments because they exceed the scope of the instructions included
in the FCR.
III. Permitting the amendment would be futile.
Should the Court consider the Motion despite the foregoing, the Motion should still be denied
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because it does not meet Rule 15(a)(2)’s requirement to show good cause for the amendment. See Fed.
R. Civ. P. 15(a)(2) (“[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.”). But, “[o]f course,
the grant or denial of an opportunity to amend is within the sound discretion of the District Court,”
provided there is a reason for denial. Foman v. Davis, 371 U.S. 178, 182 (1962). Such reasons include
undue delay, bad faith or dilatory motive, previous opportunities to amend, undue prejudice to the
opposing party by virtue of the amendment, or futility of the amendment. Id. Forcing the parties to
go through another round of filing motions to dismiss would be futile in resolving the dispute because
it would not serve judicial economy. If nothing important changes from one iteration of the complaint
to the next, the Court should not accept the new complaint and address the motions pending in the
case meant to move things forward, not those that cause an unjustified delay. See Travis v. City of Grand
Prairie, No. 3:14-cv-3650-P, 2015 WL 13002069, at **6–7 (N.D. Tex. Aug. 6, 2015) (holding that
attempts to “artfully draft around Defendants’ motion to dismiss” were improper and warrant denial
of motion for leave to amend). And that is exactly what happened here. Nothing important changed.
Pickett’s proposed amendments are futile because they do not alter the nature of her claims,
which Defendants assert remain subject to dismissal under Rules 12(b)(1) and 12(b)(6) for the reasons
stated in their Motion to Dismiss, Objections to the FCR, and Response in Opposition to Plaintiff’s
Objections. See Dkts. 11, 12, 29, 31. The Proposed Amended Complaint alleges that Pickett was told
in a voicemail that she could not have any further changes to her exam schedule, which had already
been postponed once before. Dkt. 32.1 ¶¶ 50–51. But this information was already before the Court
in Plaintiff’s Original Complaint, where she mentions the voicemail and states she was not allowed
further postponement past 10:30AM. Dkt. 1 ¶ 48–50. Similarly, the addition of material concerning
her appeal of her academic dismissal was also already before the Court. Compare Dkt. 1 ¶ 87 with Dkt.
32.1 ¶ 84. Thus, Pickett’s revisions in the amended complaint add nothing new to the issues before
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the Court, further delay for the purposes of reasserting the same claims would be futile, and the Court
should find there is no good cause to permit the amendment. See Travis, 2015 WL 13002069, at **6–
7.
CONCLUSION
Defendants respectfully pray the Court deny Pickett’s Motion for Leave to File an Amended
Complaint out of time and otherwise find that the Motion does not support a finding of good cause
necessary to permit the filing of the Proposed Amended Complaint.

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Dated: September 17, 2021

Filed 09/17/21

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Respectfully submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
GRANT DORFMAN
Deputy First Assistant Attorney General
SHAWN COWLES
Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT
Chief - General Litigation Division
/s/ Cory A. Scanlon
CORY A. SCANLON
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone (512) 463-2120
Facsimile: (512) 320-0667
cory.scanlon@oag.texas.gov
COUNSEL FOR DEFENDANTS

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CERTIFICATE OF SERVICE
I hereby certify that on September 17, 2021, a true and correct copy of the foregoing document
was served via Certified Mail, Return Receipt Requested and email as follows:
Amy Pickett
PO Box 543
Buffalo Gap, Texas 79508
apickett1010@yahoo.com
(682) 258-4558
/s/ Cory A. Scanlon
CORY A. SCANLON
Assistant Attorney General

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