IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KYLE BROWN, : Case No. 4:14-cv-0410

:

Plaintiff, :

: (Judge Brann)

v. :

:

AMERICAN SINTERED :

TECHONOLOGIES, : 

:

Defendant. :

MEMORANDUM

March 3, 2015

Before the Court is the Defendant’s Motion for Reconsideration of the

Court’s Order granting the Plaintiff’s Motion for Leave to File a Second Amended

Complaint. The Court retains jurisdiction over this case pursuant to 28 U.S.C. §

1331. For the reasons that follow, the Defendant’s Motion is granted in part and

denied in part. The Plaintiff is granted leave to file his amended complaint.

I. BACKGROUND

On March 3, 2014, Plaintiff Kyle Brown filed a complaint against American

Sintered Technologies alleging discrimination and retaliation in violation of the

Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. See Pl.’s Compl.,

Mar. 5, 2014, ECF No. 1. Plaintiff then filed an amended complaint on May 30,

2014, adding a third count that alleged the Defendant violated the Pennsylvania

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Human Relations Act, 43 Pa. Cons. Stat. § 955(a). See Pl.’s Am. Compl., May 30,

2014, ECF No. 12. The Plaintiff claims that, after he had surgery on December 14,

2012 to remove a tumor in his foot and his physician requested that Defendant

allow him medical leave until April 15, 2013, Defendant refused to accommodate

the request and instead fired him on April 2, 2013, in violation of these laws. 

Defendant filed an Answer on June 13, 2014, denying many of Plaintiff’s

allegations and asserting affirmative defenses. See Def.’s Ans., June 13, 2014,

ECF No. 13. The Parties submitted a Case Management Plan to the Court on July

10, 2014, which fixed the deadline to amend pleadings as August 11, 2014. The

Court held its initial case management conference telephonically with the parties

on July 17, 2014, and issued the required scheduling order that was largely

commensurate with the plan established by the Parties. See Ct. Order, Jul. 17,

2014, ECF No. 20. 

On November 7, 2014, Plaintiff filed a Motion for Leave to file a second

amended complaint. In the motion, Plaintiff states that during discovery he learned

that the Defendant also failed to comply with requirements of the Family and

Medical Leave Act, 29 U.S.C. § 2601, and sought to file the new complaint

including those claims. See Pl.’s Mot. Leave File, Nov. 7, 2014, ECF No. 26. In a

moment of oversight, the Court granted the Plaintiff’s motion before the Parties

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finished briefing the issues. Defendant then filed a motion for reconsideration of

the Court’s Order granting leave to file, alleging a number of procedural and

substantive grounds for denying Plaintiff’s request. See Def.’s Mot

Reconsideration, Nov. 20, 2014, ECF No. 30. The Court now turns to those

arguments.

II. DISCUSSION

A. Motion for Reconsideration

“The purpose of a motion for reconsideration is to correct manifest errors of

law or fact or to present newly discovered evidence.” Harsco v. Zlotnicki, 779

F.2d 906, 909 (3d Cir. 1985). A court should grant a motion for reconsideration if

the party seeking reconsideration shows: “(1) an intervening change in the

controlling law; (2) the availability of new evidence that was not available when

the court granted the motion for summary judgment; or (3) the need to correct a

clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café ex

rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

In this case, the Defendant’s motion is warranted because the Court made a

clear error in granting the Plaintiff’s motion for leave before the briefing schedule

expired and the Parties had a chance to present their positions. Accordingly, the

Court proceeds to the merits of the Defendant’s arguments against granting the

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Plaintiff leave to file a second amended complaint.

B. Plaintiff May File Amended Complaint

The Defendant makes four arguments against the Court’s granting leave for

Brown to file his amended complaint. The first argument is procedural: Defendant

alleges Brown’s Motion for Leave to file the amended complaint did not contain a

supporting brief and should therefore be deemed withdrawn in accordance with

local procedural rules. The next three arguments are substantive: the Defendant

alleges that leave to amend should be denied because Brown lacks good cause, the

Defendant would be prejudiced, and amendment is futile. The Court addresses

these arguments seriatim.

1. Plaintiff’s Supporting Brief Filed Within Fourteen Days

Defendant’s first argument opposing Plaintiff’s filing of a second amended

complaint is that the Court granted leave to file an amended complaint prior to the

Plaintiff filing a brief in support of his motion. United States District Court for the

Middle District of Pennsylvania Local Rule 7.5 states: “[w]ithin fourteen (14) days

after the filing of any motion, the party filing the motion shall file a brief in support

of the motion. . . . If a supporting brief is not filed within the time provided in this

rule the motion shall be deemed to be withdrawn.” Local Rule 7.5.

In this case, the Plaintiff filed a Motion for Leave to File a Second Amended

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Complaint on November 7, 2014. See Pl.’s Mot. Leave File Second Am. Compl.,

Nov. 7, 2014, ECF No. 26. The Plaintiff also filed a brief in support of that motion

on November 21, 2014, the day after Defendant filed its Motion for

Reconsideration. See Pl.’s Br. Supp., Nov. 21, 2014, ECF No. 32. Plaintiff’s

November 21 filing of the brief in support is within the fourteen day period since

filing the motion on November 7, as required by Local Rule 7.5. See Local Rule

7.5; see also FED. R. CIV. P. 6(a). Accordingly, the Defendant’s argument on these

grounds is unpersuasive. 

2. Plaintiff Has Good Cause to Amend

The Defendant further argues that Plaintiff should be denied leave to amend

his complaint on substantive grounds, because he cannot meet the requisite

standards to amend pleadings under Rule 15(a) or to amend a scheduling order

under Rule 16(b). Federal Rule of Civil Procedure 15 allows a party to amend its

pleading as of right within twenty-one days after serving it, or twenty-one days

after a defendant serves a responsive pleading or Rule 12 motion. Fed. R. Civ. P.

15(a)(1). After that period has expired, “a party may amend its pleading only with

the opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). 

Brown requires leave of Court because the Defendant does not consent to his

amendment. 

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In this case, however, Plaintiff’s motion implicates an elevated standard

under Rule 16 as well as Rule 15's standard, because allowing an amended

pleading would alter the Court’s litigation schedule. “Rule 16 gives the district

courts wide latitude to manage discovery and other pretrial matters, and to set

deadlines for amending pleadings . . . .” Eichorn v. AT&T Corp., 484 F.3d 644,

650 (3d Cir. 2007). Rule 16(b) also provides that “[a] schedule may be modified

only for good cause and with the judge’s consent.” FED. R. CIV. P. 16(b)(4). This

“good cause” language recurs throughout the Federal Rules, and implicates a more

stringent standard than Rule 15. See, e.g., Venetec Inter., Inc. v. Nexus Med.,

LLC, 541 F. Supp. 2d 612, 618 (D. Del. 2008) (“Unlike Rule 15(a), the good cause

standard under Rule 16(b) hinges on diligence of the movant and not on prejudice

to the non-moving party.”). Because the Rule 16(b)(4) “good cause” standard is

more stringent than Rule 15(a)’s standard to amend the pleadings, the Court first

examines whether the Plaintiff presents good cause to file the amended complaint. 

See Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir.

2010).

The particular circumstances constituting “good cause” to justify a

modification of a scheduling order necessarily vary with each case. CHARLES

ALAN WRIGHT, ARTHUR R. MILLER, ET AL., 6A FED. PRAC. & PROC. CIV. § 1522.2

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(2014 3d ed.). The United States Court of Appeals for the Third Circuit has

indicated, however, that a movant’s “due diligence” is an essential to establish

good cause. Race Tires Am., 614 F.3d at 84. As one court elaborated, “[t]he good

cause element requires the movant to demonstrate that, despite diligence, the

proposed claims could not have been reasonably sought in a timely manner.” 

Ventec Inter., Inc., 541 F. Supp. 2d at 618.

In this case, the Plaintiff argues that he has good cause to amend his

complaint to add a claim under the FMLA because, during discovery, he uncovered

previously unknown facts that support this claim. In a recent deposition of

Defendant’s General Manager, Carrie Saline, Brown allegedly discovered that

Defendant discharged him, among other reasons, because of leave protected by the

FMLA in violation of 29 U.S.C. § 2615(a)(2). 

Brown argues this new information allows him to plead a claim previously

unavailable. To recover under the pertinent sections of the FMLA, a plaintiff must

demonstrate that (1) the employer interfered with, restrained, or denied the

plaintiff’s exercise of FMLA rights; and (2) the plaintiff was prejudiced by the

violation. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002); see

also 29 U.S.C. § 2617; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135,

146–47 (3d Cir. 2004). While Brown possessed facts to support the first element

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of this claim from the beginning of the litigation, he argues that Saline’s deposition

furnished the first facts to support the prejudice element, thus presenting good

cause to amend.

The Defendant alleges that Brown was aware of his FMLA rights since the

events in question, and that this knowledge defeats Brown’s ability to show good

cause to amend his complaint now when he could have included this claim from

the onset of litigation. Although Brown may have been previously aware that the

Defendant failed to adequately communicate Brown’s FMLA rights to him (a fact

which remains disputed), an employer’s violation of the technical provisions of the

FMLA does not give rise to a claim without a demonstration that the plaintiff

suffered prejudice. See Ragsdale, 535 U.S. at 89. Brown asserts that he only

learned that Defendant considered his FMLA leave as a negative factor in

eliminating his position during Saline’s deposition on November 5, 2014. Brown

then filed the motion for leave to file the amended complaint two days later on

November 7, 2014. 

Before this deposition, Brown possessed no facts to allege plausibly that he

suffered prejudice as a result of FMLA violations. After the deposition, Brown

possessed those facts, and filed his motion almost immediately. Accordingly, the

Plaintiff asserts the late discovery of plausible facts supporting this claim and the

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Plaintiffs own diligence in filing their motion shortly after discovery satisfy the

good cause standard. See, e.g., Cloud Farm Assocs. v. Volkswagen Group of Am.

Inc., 2012 WL 3069390, *5 (D. Del. Jul. 27, 2012) (concluding that plaintiff

demonstrated good cause to amend when it did not have sufficient factual

information to allege the new claims until after deposing the defendants’ corporate

representatives). The Court agrees that Brown demonstrates good cause to amend

his complaint.

3. Defendant Is Not Unduly Prejudiced by Amendment

Brown also satisfies the Rule 15(a) standard because the Defendant would

not be prejudiced by the Court granting leave to amend. When construing a

motion for leave to file an amended complaint, “[t]he court should freely give

leave when justice so requires.” FED. R. CIV. P. 15(a)(2); see also Foman v. Davis,

371 U.S. 178, 182 (1962). “Among the factors that may justify denial of leave to

amend are undue delay, bad faith, and futility.” Arthur v. Maersk, Inc., 434 F.3d

196, 204 (3d Cir. 2006). The most dispositive factor in the inquiry, however, is

whether the non-movant would be prejudiced. Arthur v. Maersk, Inc., 434 F.3d

196, 204 (3d Cir. 2006). To establish prejudice, a defendant “‘must show that it

was unfairly disadvantaged or deprived of the opportunity to present facts or

evidence which it would have offered had the . . . amendments been timely.’” 

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Hawkins v. West Penn Allegheny Health Sys., No. CIV.A. 13-1334, 2014 WL

5803112, *8 (W.D. Pa. Nov. 7, 2014) (quoting Bechtel v. Robinson, 886 F.2d 644,

652 (3d Cir. 1989)). 

Defendant asserts that it would be unfairly prejudiced by the amended

complaint because it already deposed Brown without broaching the topic of FMLA

claims. While the Court recognizes this is a nominal additional litigation expense

for the Defendant, this does not rise to the level of prejudice to outweigh the

Court’s duty to freely give leave to amend in the interest of justice. See Fed. R.

Civ. P. 15(a)(2). Discovery is ongoing in this case, and Brown may be deposed

again based on these issues. Moreover, all documentary evidence regarding the

allegations raised in Brown’s second amended complaint were in Defendant’s

possession since Brown’s document production at the onset of discovery and could

have been discussed at the first deposition. 

Nor will the Defendant be deprived of the opportunity to gather and present

facts and evidence with the filing of Brown’s second amended complaint. See

Hawkins, 2014 WL 5803112, at *8. Accordingly, Defendant does not suffer

prejudice sufficient to overcome the lenient amendment rules in federal

court—rules aimed at effectuating the form of justice, however imperfect our

human pursuit of that ideal may be. 

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4. Amendment Is Not Futile

The final ground of Defendant’s challenge is that amendment would be

futile. “In determining whether a claim would be futile the district court applies

the same standard of legal sufficiency as applies under Federal Rule of Civil

Procedure 12(b)(6).” Travelers Indem. Co. v. Dammann & Co., Inc., 594 F.3d

238, 243 (3d Cir. 2010) (internal quotations and citation omitted). Thus, dismissal

is appropriate “if, reading the complaint in the light most favorable to the plaintiff,

and accepting all factual allegations as true, no relief could be granted under any

‘reasonable reading of the complaint.’” Hawkins v. West Penn Allegheny Health

Sys., 2014 WL 583112, *4 n.4 (W.D. Pa. Nov. 7, 2014) (quoting Phillips v. Cnty.

of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). Brown asserts two claims under

the FMLA, namely Interference and Retaliation. The Court analyzes them in turn.

a. FMLA Interference Claim Not Futile

Brown’s first FMLA claim is for interference with protected rights. The

statute states that “[i]t shall be unlawful for an employer to interfere with, restrain,

or deny the exercise of or the attempt to exercise, any right provided under this

subchapter.” 29 U.S.C. § 2615(a)(1).1

 Specifically, an employer’s failure to

1

 The full text of this portion of the statute concerning “Prohibited acts” reads: 

(a) Interference with rights

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provide notice of FMLA rights or notice that leave was designated as FMLA leave

may constitute an interference claim. See 29 C.F.R. §§ 825.300(e), 825.301(e). To

establish interference claims, plaintiffs must show an “impairment of their rights

and resulting prejudice.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,

90 (2002). 

(1) Exercise of rights

It shall be unlawful for any employer to interfere with, restrain, or deny

the exercise of or the attempt to exercise, any right provided under this

subchapter.

(2) Discrimination

It shall be unlawful for any employer to discharge or in any other manner

discriminate against any individual for opposing any practice made

unlawful by this subchapter.

(b) Interference with proceedings or inquiries

It shall be unlawful for any person to discharge or in any other manner

discriminate against any individual because such individual–

(1) has filed any charge, or has instituted or caused to be instituted any

proceeding, under or related to this subchapter;

(2) has given, or is about to give, any information in connection with any

inquiry or proceeding relating to any right provided under this subchapter;

or

(3) has testified, or is about to testify, in any inquiry or proceeding relating

to any right provided under this subchapter.

29 U.S.C. § 2615.

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Brown claims that the Defendant failed to provide him with the required

notice of his FMLA rights, so that he could structure his leave in a manner that

comported with the statute. The FMLA requires employers to provide employees

with both general and individual notice of their FMLA rights. Lupyan v.

Corinthian Colleges Inc., 761 F.3d 314, 318 (3d. Cir. 2014). Employers must give

employees general notice by posting FMLA rights information on its premises and

distributing a publication that includes the employer’s FMLA policies. Id. (citing

29 U.S.C. § 2619(a); 29 C.F.R. § 825.300). Employers must give employees

individualized notice of their FMLA rights as well, as the United States Court of

Appeals for the Third Circuit articulated:

[O]nce an employer is on notice that an employee is taking FMLAqualifying leave, the employer must: (1) within five business days

notify the employee of his or her eligibility to take FMLA leave, 29

C.F.R. § 825.300(b); (2) notify the employee in writing whether the

leave will be designated as FMLA leave, 29 C.F.R. § 825.300(d)(1);

(3) provide written notice detailing the employee’s obligations under

the FMLA and explaining any consequences for failing to meet those

obligations, § 825.300(c)(1); and (4) notify the employee of the

specific amount of leave that will be counted against the employee’s

FMLA leave entitlement, § 825.300(d)(6).

Lupyan, 761 F.3d at 318.

In this case, Brown was hospitalized around December 14, 2012 to remove a

tumor in his foot. He subsequently requested medical leave and short term

disability pursuant to Defendant’s employee welfare benefit plan, which was

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FMLA-qualifying leave. Pl.’s Am. Compl. ¶¶ 12–14, Nov. 20, 2014, ECF No. 30. 

Brown alleges that, after receiving his notice of leave, Defendant did not inform

Brown of his FMLA rights as required. Specifically, Brown alleges that Defendant

did not inform him that his leave had been designated as FMLA leave, that his

leave would run for 12 weeks, that he would need a certification from his physician

that he was able to resume work before returning from medical leave, or that there

would be any consequences if he did not return to work within 12 weeks. Id. ¶¶

15–18. The Defendant asserts that it provided Brown with information sufficient

to satisfy its FMLA obligations, and this point remains a disputed material fact.

Viewing the facts in the light most favorable to Brown and assuming

Defendant did not provide the required FMLA information, Defendant argues that

Brown still cannot assert an FMLA claim because he was out longer than the

twelve weeks of leave the FMLA entitles him to. This argument is unavailing in

the face of Third Circuit case law.

In Conoshenti v. Public Services Electric & Gas Co., 364 F.3d 135, 145 (3d

Cir. 2004), the Third Circuit held that summary judgment for the employer was

improper when “[n]othing in the record . . . indicate[d] that Conoshenti knew that

he was entitled to only twelve weeks of protected leave,” and he was terminated

after failing to return to work in twelve weeks. Because the defendant employer

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did not provide Conoshenti this individualized notice that he would have the

opportunity to structure his FMLA leave in such a way that his job would be

protected, he presented “a viable theory of recovery.” Id. at 143. Had the

defendant provided Conoshenti the required FMLA information, he “would have

been able to make an informed decision about structuring his leave and would have

structured it, and his plan of recovery, in such a way as to preserve the job

protection afforded by the Act.” Id. at 142–43.

In this case, taking all inferences in favor of Brown, there is nothing to

indicate that he was aware that he only had twelve weeks of FMLA leave. Had the

Defendant provided him with this information individually as the statute requires,

he may have fashioned his leave in accord with the statute and returned to work at

the appropriate time. 

Defendant argues, however, that even assuming their failure to inform

Brown of his FMLA rights is true, this did not prejudice Brown because his firing

was not due to his exercise of FMLA leave. Defendant contends that Brown’s

position would have been eliminated regardless of whether or not Brown took

FMLA leave or another leave of absence, because “during Plaintiff’s leave of

absence Defendant realized that it did not need Plaintiff’s position and thus decided

to eliminate it.” Def.’s Resp. 4, Nov. 25, 2014, ECF No. 33.

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The testimony from Saline’s deposition, however, demonstrates that Brown

has evidence sufficient to survive the Defendant’s allegations that amendment is

futile. A portion of Saline’s deposition testimony reads:

Q. Okay. Now, you say in your email of April 11th, 2013 they have

vacation balances, and we may have to take them to court. Who are

you talking about there?

A. Brown and Schwartz.

Q. So Mr. Brown and Ms. Schwartz; correct?

A. Yes.

Q. And then you say they were abusing the system and needed to go. 

First off, what was Ms. Schwartz doing to abuse the system?

. . . 

A. . . . [Ms. Schwartz] had just been off for a very long time. 

Unfortunately, we felt these were malingering.

Q. Who is the we?

A. Myself.

Q. Anybody else?

A. Stephanie maybe. I mean we had conversations.

Q. Well, tell me about the conversations what Stephanie told you Ms.

Schwartz was malingering.

A. We just felt that, you know, based on the, how do I want to say, what

was wrong, that we, they could have come back to duty.

Q. I’m talking about Schwartz right now.

A. Yes.

Q. So you said they, so let’s start with Ms. Schwartz first.

A. Yes.

Q. Okay. What does Ms. Schwartz do that you claim was “abusing the

system”? [sic]

A. Not taking advantage of coming back to light duty, that it was

available to her.

Q. Okay. Did you tell her light duty was available to her?

A. Yes, we always tell them light duty is available.

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. . . 

Q. Okay. Now, what was Mr. Brown doing that you claim was abusing

the system?

A. The same thing. We had light duty available.

. . . 

Q. So when you say he is abusing the system, it’s that he took his full

time on FMLA leave without coming back to light duty. Is that fair?

A. I believe that he could have come back to light duty, yes.

. . . 

Q. Okay. So when someone is on Family Medical Leave Act or on some

sort of medical leave, if they don’t come back before the time that

Was that your testimony, or is that what you meant by Mr. Brown

abusing the system?

A. That is the way that I wrote it in this, yes.

Q. Well, that’s the way you said it.

A. That’s the way I said it, yes.

Q. Nobody wrote this for you; correct?

A. No, I did.

Pl.’s Br. Supp., Ex 1. 70:8–25; 71:1–21; 72:14–16; 73:7–11; 74:14–24, Nov. 21,

14, ECF No. 32–1. 

Defendant asserts that this testimony merely establishes that Saline

suspected Brown of malingering, which was not the reason for Brown’s

termination. Nevertheless, drawing all reasonable inferences from the facts viewed

in the light most favorable to Brown at this juncture, granting leave to amend his

complaint would not be futile.

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b. FMLA Retaliation Claim Not Futile

The considerations involved in a futility analysis of Brown’s FMLA

retaliation claim are similar to those related to his interference claim. “The Third

Circuit analyzes retaliation claims under 29 C.F.R. § 825.220(c), which requires a

plaintiff to show that: ‘(1) he took an FMLA leave, (2) he suffered an adverse

employment decision, and (3) the adverse decision was causally related to his

leave.’”2

 Antone v. Nobel Learning Communities, Inc., No. CIV.A. 11-3617 JEI,

2012 WL 174960, *4 (D.N.J. Jan. 19, 2012). “Even though 29 C.F.R. §

825.220(c) appears to be an implementation of the ‘interference provisions of the

FMLA, its text unambiguously speaks in terms of ‘discrimination’ and ‘retaliation’

and we shall, of course, apply it in a manner consistent with that text.” 

Conoshenti, 364 F.3d at 146–47 n.9. 

Defendant again contends that Brown’s position would have been eliminated

2

 The text of 29 C.F.R. § 825.220(c) reads:

(c) The Act’s prohibition against interference prohibits an employer from

discriminating or retaliating against an employee or prospective employee for

having exercised or attempted to exercise FMLA rights. For example, if an

employee on leave without pay would otherwise be entitled to full benefits (other

than health benefits), the same benefits would be required to be provided to an

employee on unpaid FMLA leave. By the same token, employers cannot use the

taking of FMLA leave as a negative factor in employment actions, such as hiring,

promotions or disciplinary actions; nor can FMLA leave be counter under no fault

attendance policies. See § 825.215.

29 C.F.R. § 825.220(c). 

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regardless of whether or not Brown took FMLA leave or another leave of absence,

because “during Plaintiff’s leave of absence Defendant realized that it did not need

Plaintiff’s position and thus decided to eliminate it.” Def.’s Resp., at 4. Taking the

deposition testimony and all reasonable inferences in the light most favorable to

Brown, however, he has demonstrated that granting leave to allow his second

amended complaint is not futile.

“Under the Price Waterhouse framework, when an FMLA plaintiff alleging

unlawful termination presents direct evidence that his FMLA leave was a

substantial factor in the decision to fire him, the burden of persuasion on the issue

of causation shifts, and the employer must prove that it would have fired the

plaintiff even if it had not considered the FMLA leave.” Conoshenti, 364 F.3d at

147. “‘Direct evidence’ means evidence sufficient to allow the jury to find the

decision makers placed substantial negative reliance on the protect activity in

reaching their decision to fire him.” Id. (citing Connors v. Chrysler Fin. Corp., 160

F.3d 971, 976 (3d Cir. 1998) . 

Saline’s deposition testimony, while still not reviewed by the deponent in its

current form, could constitute direct evidence that Defendant’s decision makers

placed substantial negative reliance on Brown’s FMLA leave. The burden of

persuasion then shifts to the Defendant to demonstrate that it would have fired

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Brown, even if it had not considered the FMLA leave, which the Defendant does

assert. While the Defendant’s arguments could ultimately prove successful on

those grounds later in the litigation, when considering the evidence before the

Court under the appropriate standard at this juncture, the Defendant has not

demonstrated that granting Brown leave to amend his complaint would be futile. 

These dispositive issues in question are more properly addressed directly when

briefed, ripe, and with all facts and arguments before the Court on summary

judgment at the close of discovery, or by a jury if disputed facts remain. 

Accordingly, granting leave to amend the complaint is not futile. 

III. CONCLUSION

In accordance with the foregoing, the Defendant’s Motion for

Reconsideration is granted in part and denied in part. Brown is granted leave to

file an Amended Complaint.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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