Lelis Yalí Flores-Silva v. Kenneth McClintock-Hernández

United States Court of Appeals
For the First Circuit
No. 11-2495
LELIS YALÍ FLORES-SILVA,
Plaintiff, Appellant,
v.
KENNETH MCCLINTOCK-HERNÁNDEZ; JOSÉ RODRÍGUEZ-SUÁREZ;
BLANCA LÓPEZ-AGUDO; JOSÉ NEGRÓN-PANTOJAS; CONSUELO
FIGUERAS-REVUELTA; EDUARDO AROSEMENA-MUÑOZ; NIVEA E.
TORRES-OCASIO; EDNA COIRA-APONTE; DWIGHT FAGUNDO-CRUZ;
VANESSA VIERA-RABELO; STATE DEPARTMENT OF THE
COMMONWEALTH OF PUERTO RICO; PUERTO RICO PORTS AUTHORITY;
THE COMMONWEALTH OF PUERTO RICO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Peter John Porrata, for appellant.
Eliezer A. Aldarondo-López, with whom Carlos Cardona-Fernández
and Aldarondo & López-Bras, were on brief for appellees McClintock,
Rodríguez, López, Negrón, Figueras, Arosemena, Torres, Coira,
Fagundo, Viera and the State Department of the Commonwealth of
Puerto Rico.
José O. Vázquez-García, with whom Masa & Green, PSC, was on
brief for appellee Puerto Rico Ports Authority.
March 11, 2013

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TORRUELLA, Circuit Judge. This case comes before us
after the District Court of Puerto Rico found that a complaint
filed by Lelis Y. Flores Silva ("Flores") failed to state a claim
and determined that amendment would be futile. Flores only appeals
the futility finding. We rule that the district court did not
abuse its discretion in denying the requested amendment and thus
affirm.
I. Background
On New Year's Eve of 2010, Flores, an International
Affairs Specialist at the Puerto Rico State Department, filed a
complaint against said department, ten of its employees (including
the then Secretary of State, Kenneth McClintock), the Commonwealth
of Puerto Rico (collectively, the "State Department defendants"),
and the Puerto Rico Ports Authority. She alleged a myriad of
claims against the State Department defendants, but the core
allegations of her complaint were that defendants had discriminated
against her due to her political views and that they had denied her
the rights and benefits to which she was entitled under federal and
local law. As against the Ports Authority, she alleges it
slandered her by publishing false information regarding an arrest
for marijuana possession, thereby preventing her from receiving
foreign dignitaries at the local international airport as part of
her work duties. She claimed violations of her due process rights
under the Fifth and Fourteenth Amendments, and the depravation of
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said rights under 42 U.S.C. §§ 1983 and 1985. She requested
attorney's fees under 42 U.S.C. § 1988. She also alleged
violations of the Americans with Disabilities Act of 1990, the
Rehabilitation Act, Title VII of the Civil Rights Act of 1964, and
asserted several claims pursuant to Puerto Rico law.
The Ports Authority answered the complaint on March 29,
2011. On May 12, 2011, José Rodríguez Suárez, one of the State
Department defendants, also filed a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6).
On June 6, 2011, the district court issued a scheduling
order in which it stated:
Any outstanding pleadings shall be filed not
later than June 10, 2011. Any motion to amend
pleadings and/or to add parties shall be filed
not later than June 15, 2011. In any event,
the pleadings' [sic] stage should be concluded
by July 15, 2011. Further amendments will
only be allowed for good cause shown.
On June 7, 2011, Flores filed her opposition to Rodríguez
Suárez's motion to dismiss. Three days later, the remaining State
Department defendants filed a separate motion to dismiss pursuant
to Fed. R. Civ. P. 12(b)(6). On July 26, 2011, Flores filed her
opposition to said motion. In the context of her discussion of the
State Department defendants' arguments regarding her failure to
sufficiently allege the first element of a prima facie case of
political discrimination (i.e. that defendants were from a
different political affiliation than her), Flores made the
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following statement: "[I]f the Honorable Court finds that there's
a lack of specificity as to political affiliation, then Plaintiff
would request leave to file the corresponding amended complaint."
Flores did not file a separate motion for leave to amend the
complaint thereafter.
On October 27, 2011, the district court issued an opinion
and order finding that Flores' complaint failed to state any claim
upon which relief could be granted. It dismissed Flores' political
discrimination claim with prejudice, and her ADA, Rehabilitation
Act, and Title VII claims, as well as the claims pursuant to Puerto
Rico law, without prejudice. In its opinion and order, the
district court found that Flores had conceded that she had failed
to sufficiently allege the first element of a prima facie case of
political discrimination and determined that an amendment regarding
that element would be futile because the complaint also failed to
sufficiently allege the second element: defendants' knowledge of
her political affiliation. The district court also went over the
rest of Flores' claims and found none of them plausible.
Flores filed this timely appeal. She does not dispute
the district court's finding that the complaint failed to state a
claim. She unequivocally declares that "[t]his case comes to
appeal on the sole basis that the trial judge erred in denying
Plaintiff the opportunity to amend the Complaint." (emphasis
omitted). She requests that we reverse the district court's
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refusal to grant leave to amend the complaint. We decline to do
so.
II. Discussion
A. Standard of Review
When a district court has issued a scheduling order
pursuant to Fed. R. Civ. P. 16(b) stating that amendments will be
allowed for "good cause shown," as was the case here, the district
court's determination of the existence or absence of good cause is
reviewed for abuse of discretion. O'Connell v. Hyatt Hotels, 357
F.3d 152, 155 (1st Cir. 2004) ("We review the district court's
refusal to extend a Rule 16(b) scheduling order for good cause
under an abuse of discretion standard."). We "affirm if any
adequate reason for the denial is apparent from the record." Hatch
v. Dep't for Children, 274 F.3d 12, 19 (1st Cir. 2001). "A
district court's exercise of discretion will be left untouched if
'the record evinces an arguably adequate basis for the court's
decision,' such as futility of the amendment." Juárez v. Select
Portfolio Servicing, Inc., No. 11-2431, slip op. at 12-13 (1st Cir.
Feb. 12, 2013) (quoting Hatch, 274 F.3d at 19).
Moreover, "[o]ur case law clearly establishes that Rule
16(b)'s 'good cause' standard, rather than Rule 15(a)'s 'freely
give[n]' standard, governs motions to amend filed after scheduling
order deadlines." Trans-Spec Truck Serv. v. Caterpillar Inc., 524
F.3d 315, 327 (1st Cir. 2008) (citing O'Connell, 357 F.3d at
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154-55). The "good cause" standard focuses on the diligence (or
lack thereof) of the moving party more than it does on any
prejudice to the party-opponent. Steir v. Girl Scouts of the USA,
383 F.3d 7, 12 (1st Cir. 2004) (citing O'Connell, 357 F.3d at 154-
155).
B. Analysis
In this Circuit, "where the federal district courts . . .
are flooded with hundreds of political discrimination cases, many
of which are appealed, "Sánchez-López v. Fuentes-Pujols, 375 F.3d
121, 126 (1st Cir. 2004), there should be no doubt that to set
forth a prima facie case,
a plaintiff must establish four elements: (1)
that the plaintiff and defendant have opposing
political affiliations, (2) that the defendant
is aware of the plaintiff's affiliation, (3)
that an adverse employment action occurred,
and (4) that political affiliation was a
substantial or motivating factor for the
adverse employment action.
Torres-Santiago v. Municipality of Adjuntas, 693 F.3d 230, 236 (1st
Cir. 2012) (quoting Méndez-Aponte v. Bonilla, 645 F.3d 60, 64 (1st
Cir. 2011)) (additional citation omitted). Failure to properly
allege any of these elements may result in the dismissal of an
action for failure to state a claim.
In her brief before this court, Flores sets forth several
facts she claims she would have included in an amended complaint to
establish the State Department defendants' knowledge of her
political affiliation. Those facts in turn center on the argument
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that she kept pictures in her office that displayed her
participation in political activities and portrayed her with
several former governors whose political affiliation was opposite
to that of defendants. Since they necessarily had to see the
pictures when they went into her office, Flores posits, they had to
have knowledge of her political affiliation. But such after-the-
fact explanations cannot mend Flores' failure to request leave to
amend within the deadlines designated by the district court or to
properly request leave to amend after the deadline by showing that
"good cause" existed. While the pertinent inquiry is, of course,
whether the district court abused its discretion in finding that
allowing an amendment would have been futile, we will affirm if
"any adequate reason for the denial is apparent from the record."
Hatch, 274 F.3d at 19.
As stated above, Flores' statement that she "would
request leave to amend" did not include an explanation as to the
reasons that would have justified granting such leave under the
"good cause" standard the district court was required to measure
the request by. Flores did not even attempt to justify the request
despite the fact that the deadlines set in the scheduling order had
already passed, and there should have been no doubt that the
applicable standard was "good cause" since the order explicitly
said so. Additionally, Flores failed to take advantage of the
twenty-one day period to amend her complaint as a matter of course
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after each motion to dismiss was filed. See Fed. R. Civ. P.
15(a)(1)(B).
During oral arguments, Flores conceded that the district
court could have validly refused to construe her statement as a
request for leave to amend and could have chosen to ignore it all
together. She contended, however, that once the district court
entertained her lame statement as a request, the court could not
make a futility finding based on the failure to expressly request
leave to amend the second element of her prima facie case. Once it
entertained the request, says Flores, it automatically had to grant
leave to amend the entire complaint and was required to presume
that Flores would do so and that the result would be a complaint
that plausibly alleged all claims. Flores failed to cite to any
case law in support of this proposition.
This failure, however, is not surprising given that she
essentially argued that a request for leave to amend that does not
include a proposed amended complaint or give details as to how the
complaint would be amended if leave were granted, virtually shields
a plaintiff from any scrutiny under a futility analysis. In other
words, she was asking this court to find that, because she withheld
details about the amended complaint that she allegedly had in mind,
she was somehow immune from the well-settled principle that a court
may perform an analysis under the Rule 12(b)(6) standard to
determine if an amendment would be futile. See Platten v. HG Berm.
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Exempted Ltd., 437 F.3d 118, 132 (1st Cir. 2006). For reasons that
are so evident that we need not dwell on, we will not validate this
theory, as doing so would essentially benefit those who, like
Flores, fail to diligently and properly move to amend their
complaints.
In this case, Flores merely alerted the district court
that she would move to file an amended complaint if her allegations
relating to the first element of her prima facie case were found to
be ineffectual. She made no mention of a proposed amendment to the
second element of her prima facie case, even though, in their
motion to dismiss, the State Department defendants clearly and
particularly challenged the sufficiency of the pleadings as to that
element. The district court thus acted within its discretion in
assuming only the allegations relating to the first element would
be amended and in concluding that the complaint would not survive
a 12(b)(6) motion.
Flores confidently asserts in her brief that "[a]t the
state of the proceedings as of October 27th 2011, [the] date [o]n
which the District Court rendered its Opinion and Order . . .
Plaintiff was entitled to an adequate and reasonable opportunity to
amend her complaint." (emphasis omitted). However, Flores did not
make her statement announcing that she would request leave to
amend, if the court ruled against her, until forty-one days after
the deadline set in the scheduling order, and eleven days after the
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deadline for conclusion of the pleading stage. Despite facing this
daunting scenario, she failed to even attempt to show "good cause."
We have explained in the past that Rule 16(b) allows district
courts to manage their over-burdened case loads and "litigants
cannot be permitted to treat a scheduling order as a 'frivolous
piece of paper idly entered, which can be cavalierly disregarded
without peril.'" O'Connell, 357 F.3d at 155 (quoting Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)). We
need not go any further.
III. Conclusion
For the reasons elucidated above, we affirm.
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