Mark Vitalis, v. Sun Constructors, Inc.

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
5
MARK VITALIS, 5
5
Plaintiff, 5 1:05-cv-101
v. 5
5
SUN CONSTRUCTORS, INC., 5
HOVENSA, L.L.C., RICHARD “DOC” 5
LANGNER, and EXCEL GROUP, INC., 5
5
Defendants. 5
__________________________________________5
TO: Lee J. Rohn, Esq.
David J. Cattie, Esq.
Linda J. Blair, Esq.
ORDER
THIS MATTER came before the Court upon Plaintiff’s Motion to Amend First
Amended Complaint (Docket No. 328). Defendants Sun Constructors, Inc., Richard “Doc”
Langner, and Excel Group, Inc. filed an opposition to said motion. Defendant HOVENSA,
L.L.C., filed a Notice of Joinder in Sun Constructors’ Opposition to Plaintiff’s Motion to
amend the First Amended Complaint (Docket No. 331). Plaintiff filed a reply in further
support of his motion.
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Vitalis v. Sun Constructors, Inc.
1:05-cv-101
Order
Page 2
DISCUSSION
Rule 15(a) of the Federal Rules of Civil Procedure allows a party to amend its
pleading and directs the Court to grant such leave “when justice so requires.” It is well
established that such leave should be “‘freely given.’" Foman v. Davis, 371 U.S. 178, 182
(1962).
The initial complaint in this case was filed on July 12, 2005. On September 29, 2005,
Plaintiff filed a motion to amend complaint, which was granted by order entered
November 14, 2005. Plaintiff again moves to amend, almost four years later and after all
discovery has closed, to include allegations that Plaintiff filed a complaint with the Equal
Employment Opportunity Commission and received a “right to sue” letter.
Defendants oppose such amendment on the basis that Plaintiff’s sole reason for
requesting such amendment is to avoid summary judgment.
The “right to sue” letter is dated January 26, 2006. Defendants filed their motions
for summary judgment in April 2009. Despite the fact that Plaintiff could easily have
moved to amend his complaint at any time after receiving it and prior to Defendants’
motions for summary judgment, the Court finds that the amendment should be allowed.
This Court recently denied a motion to dismiss and allowed the plaintiff to amend
her complaint where the plaintiff who filed her complaint in 2006 did not receive a “right-
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Vitalis v. Sun Constructors, Inc.
1:05-cv-101
Order
Page 3
to-sue” letter until February 8, 2008. Burke-Ventura v. VITELCO, Civil No. 2006-141, 2009
WL 1586601 (D.V.I. June 5, 2009). The Court based its ruling upon the guidance provided
by the United States Court of Appeals for the Third Circuit in Anjelino v. New York Times
Co., 200 F.3d 73, 96 (3d Cir. 1999) (“failure to obtain a right-to-sue letter . . . is curable at any
point during the pendency of the action” (citations omitted)) and Gooding v. Warner-Lambert
Co., 744 F.2d 354, 358 (3d Cir. 1984) (where the court held that the appropriate course for
a district court to take is to allow a plaintiff who does not allege receipt of a right-to-sue
letter an opportunity to amend her complaint). The Court will follow this precedent.
Accordingly, it is now hereby ORDERED:
1. Plaintiff’s Motion to Amend First Amended Complaint (Docket No. 328) is
GRANTED.
2. Plaintiff shall file, forthwith, his Second Amended Complaint, as it appears
as Attachment #5 filed with the said motion to amend.
3. Defendant HOVENSA, L.L.C’s Notice of Joinder in Sun Constructors’
Opposition to Plaintiff’s Motion to Amend the First Amended Complaint
(Docket No. 331) is GRANTED.
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Vitalis v. Sun Constructors, Inc.
1:05-cv-101
Order
Page 4
ENTER:
Dated: August 24, 2009 /s/ George W. Cannon, Jr.
GEORGE W. CANNON, JR.
U.S. MAGISTRATE JUDGE
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