Tammy Gitsham was married and divorced during the term of her employment with BobRich 1

Enterprises; she has also been known as Tammy Flatte and Tammy Cataldi. She will be referred

to as “Gitsham” throughout. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EQUAL EMPLOYMENT §

OPPORTUNITY COMMISSION, §

 §

Plaintiff, § 

 § 

v. § No. 3:05-CV-01928-M

 §

BOBRICH ENTERPRISES §

d/b/a SUBWAY, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Equal Employment Opportunity Commission’s (“EEOC”)

Motion to Amend to Join Defendants. For the reasons set forth below, the Motion is DENIED.

I. FACTUAL BACKGROUND

 On June 13, 2003, Tammy Gitsham filed a charge with the EEOC, alleging that she had 1

been discriminated against because of her disability. Until June 10, 2003, Gitsham had been

employed as an Area Manager by Subway, supervising up to seven Subway restaurants. Also on

June 13, 2003, the EEOC sent Subway a request for information, which Robert Suarez, the

President of BobRich Enterprises (“BobRich”), answered on July 1, 2003. The EEOC filed its

complaint for violation of Title I of the Americans with Disabilities Act of 1990 (“ADA”) on

September 28, 2005, naming BobRich as the only defendant.

On March 16, 2006, the Court entered a Scheduling Order which set April 28, 2006, as

 

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 This deadline was unchanged by the Amended Scheduling Order issued November 9, 2006, 2

which set January 16, 2007 as the deadline for the completion of discovery and set the case for

trial on April 9, 2007.

 This testimony differed significantly from prior answers about employees: in his response to the 3

2003 request for information, Suarez listed seven total employees (apparently referring only to

the employees who held the position of Area Manager), and in its answer to interrogatories,

BobRich answered that it employs between 175 and 200 total employees. 

 The EEOC seems to have received a version of this list prior to Suarez’s deposition. See 4

Plaintiff’s Br. in Support of Motion to Amend app. 9 pp.16-18.

2

the deadline to amend pleadings to join parties. On May 16, 2006, the EEOC sent BobRich its

2

first set of interrogatories, which were answered on June 15, 2006. At his deposition on

September 21, 2006, Suarez testified that he held various management positions in three other

corporations— R.J. Suarez Enterprises, Great Lakes Management Company, and Empire

Charters— and that those three corporations, along with BobRich, owned and operated different

Subway restaurants in the area. Suarez also testified that Great Lakes Management employed all

500-600 Subway employees and leased those employees to the other three corporations. The 3

EEOC deposed three other management-level employees—James Schuster (former Director of

Operations), Rodney Mahaffey (Director of Operations), and Linda Clague (Human Resources

Director)—in December of 2006. Schuster testified that he was an employee of Great Lakes

Management and that, for purposes of his job, which corporation owned a particular restaurant

was irrelevant. He also testified that a master list of which corporation owned which restaurants

was always available at the office. Mahaffey testified as to which Subway restaurants Gitsham 4

managed as Area Manager. Clague testified on December 18, 2006, that she was not sure who

employed her, but that she thought that it was a combination of all of the corporations. On

December 21, 2006, the EEOC moved to amend its complaint to join R.J. Suarez Enterprises,

 

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 The matter was not fully briefed until January 22, 2007. 5

3

Great Lakes Management Company, and Empire Charters as defendants.

5

II. DISCUSSION

The EEOC seeks to join these new parties long after the deadline set in the Scheduling

Order, claiming to have learned during the course of discovery that these three corporations are

appropriate parties to this suit. BobRich objects to amendment at this late date. Because the

Court concludes that the EEOC has not shown good cause for the delay in seeking to amend, the

Court denies the motion to join the three corporations as defendants.

When a court has entered a Scheduling Order and the deadline to amend set forth in it has

passed, good cause to modify the Scheduling Order must be shown when an amendment is

sought. FED. R. CIV. P. 16(b); S&W Enters., L.L.C. v. SouthTrust Bank of Ala., 315 F.3d 533,

535–36 (5th Cir. 2003). Only when the movant has shown good cause for the delay will leave to

amend be freely given under Rule 15(a) . S&W Enters., L.L.C., 315 F.3d at 536. To show good

cause, the movant must demonstrate that, despite the movant’s diligence, the deadlines could not

reasonably have been met. Id. at 535 (citations omitted). When determining whether a movant

has shown good cause, the Court shall consider four factors: the explanation for the delay, the

importance of the amendment, the potential prejudice of the amendment, and the ability to cure

any prejudice with a continuance. Id. at 536; see also Baylor Univ. Med. Ctr. v. Epoch Group,

L.C., No. 3:03-CV-2392-G, 2005 WL 2124126, at *7 (N.D. Tex. Sept. 1, 2005).

Although the EEOC offers an explanation for its delay in seeking leave to amend, its

explanation fails to explain adequately why the amendment to join three new defendants was not

filed until eight months after the deadline set forth in the Scheduling Order and less than one

 

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4

month prior to the end of the discovery period. The EEOC’s delay in determining the facts that

causes it to want to join these three entities is unexplained. The EEOC had notice that R.J.

Suarez Enterprises might have been a proper party to this suit before the suit was filed, because it

was listed as Gitsham’s employer on her 2001 W-2. See Plaintiff’s Reply Br. app. 4. Suarez is

the registered agent for all four corporations, and, had the EEOC promptly checked the records of

the Secretary of State, it would have discovered these three entities, presumably within the

Court’s deadlines. The EEOC had three years between the receipt of Gitsham’s charge, and the

deadline in the Scheduling Order to join new parties, to investigate and only now, on the eve of

trial, does it seek to amend to join these three entities.

Further, the EEOC has not shown diligence in conducting discovery or moving to join. It

did not send its first interrogatories until almost a month after the deadline to join new parties

had expired, and although it learned about the other entities at Suarez’s September deposition, it

waited an additional three months before moving to join them. The first factor, the

persuasiveness of the explanation for the delay, weighs in BobRich’s favor.

The next factor is the importance of the amendment. Joinder of the new parties could very

well affect the Plaintiff’s case and any recovery that might be had. Damages recoverable under

Title I of the ADA are limited by the number of employees that the employer employs. 42

U.S.C. § 1981a(b)(3). The damages recoverable by the EEOC, and by Gitsham, for an ADA

violation could vary significantly by the number of employees attributed to BobRich and those

attributed to the other three entities, regardless of the relationship between them. 42 U.S.C. §

1981a(b)(3) (counting only number of employees of respondent for limitation of damages

purposes). The second factor weighs in the EEOC’s favor.

 

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The third factor is potential prejudice to the nonmovant, and the fourth factor is the ability

to cure that prejudice with a continuance. The potential prejudice to BobRich is high, and the

ability to cure that prejudice with a continuance is low. The deadline for completion of discovery

has passed, and the case is currently set for trial on April 9, 2007. If three new defendants are

joined, the discovery period will need to be reopened and the trial will need to be reset. The

conduct which is the basis of this suit occurred more than three years ago, and any resetting of

the trial date would place it more than four years after the relevant conduct occurred. The Court

has the inherent power to control its docket and refuse to grant a continuance to allow litigants

who have failed to show diligence “another chance to develop their case.” Reliance Ins. Corp. v.

La. Land & Exploration Co., 110 F.3d 253, 258 (5th Cir. 1997). The third and fourth factors

weigh in BobRich’s favor. 

The EEOC has failed to show diligence in moving to amend its complaint to join three

new defendants, and it has failed to show good cause to modify the Scheduling Order. Its motion

for leave to amend to join new parties is therefore DENIED.

SO ORDERED.

DATED: March 6, 2007.

__________________________________

BARBARA M. G. LYNN

UNITED STATES DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

 

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