In this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C., § 2000e et seq., plaintiff appeals from an order entered August 31, 1982 in the District Court for the Northern District of New York, which granted defendant's motion to amend its answer as well as defendant's motion for summary judgment on the amended answer, and which also dismissed plaintiff's Title VII action on the ground that it was barred by res judicata. Reversed and remanded.
FEINBERG, Chief Judge, CARDAMONE, Circuit Judge, and RE, Chief Judge.*fn*
In this action, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., a black female citizen appeals from an order entered August 31, 1982, in the District Court for the Northern District of New York. This order granted defendant's motion to amend its answer as welll as defendant's motion for summary judgment on the amended answer. It also dismissed plaintiff's Title VII action on the ground that it was barred by res judicata. The plaintiff also appeals a subsequent order which denied her motion to vacate the order of August 31, 1982. No written opinion accompanies either order here appealed.
Plaintiff raises two questions on this appeal. The first is whether a state court order, dismissing plaintiff's petition under N.Y. Executive Law § 298 for failure to proceed, operates a res judicata and precludes plaintiff's present Title VII action in the federal district court. The second is whether the district court abused its discretion in granting the defendant leave to amend its answer to include the defense of res judicata nearly three years after the answer was filed, after a pre-trial order, and on the eve of trial.
Since we decide that, under the circumstances presented, the district court abused its discretion in granting defendant leave to amend, it is not necessary to decide whether the state court order was res judicata.
Until her employment was terminated on June 30, 1975, plaintiff was a guidance counselor at a junior high school operated by the defendant. Acting pro se, she filed with the New York State Division of Human Rights a complaint alleging racial discrimination in her termination. On September 10, 1976, the Division of Human Rights issued a finding of no probable cause. Plaintiff's subsequent appeal to the New York State Human Rights Appeal Board was dismissed on June 29, 1977 because of her failure to appear at a hearing. On July 26, 1977, plaintiff requested the Appellate Division of the Supreme Court of the State of New York, Fourth Department, to review the agency's determination. The Appellate Division notified the plaintiff that she had to file seven copies of her brief. Still acting pro se, she failed to comply, and, on November 29, 1979, the Appellate Division, sua sponte, dismissed the proceeding for failure to prosecute. This dismissal by the Appellate Division is the basis of the August 31, 1982 order on appeal which dismissed plaintiff's Title VII action on the ground that it was barred by res judicata. Although it need not be considered here, plaintiff contends that res judicata does not bar the present Title VII claim since the prior state court order for failure to prosecute was not a judgment on the merits.
Concurrently with the state proceedings, on July 2, 1975, plaintiff filed a similar complaint with the U.S. Equal Employment Opportunity Commission. On August 4, 1978, she was notified by the Commission that her complaint had been dismissed, and that she had a right to bring a civil action under Title VII of the 1964 Civil Rights Act. On November 3, 1978, she initiated the present action, and defendant filed its answer on July 3, 1979. On August 27, 1979, plaintiff applied to the court for leave to proceed in forma pauperis, and counsel was appointed on December 10, 1979.
Plaintiff's counsel undertook pre-trial discovery, which was complete by December 1981. A pre-trial conference was held on December 15, 1981, and again on June 11, 1982. Pursuant to a pre-trial order, issued at the June 11, 1982 conference, the parties submitted their pre-trial briefs and stipulations by August 16, 1982, and trial was scheduled to begin on August 30, 1982.
On August 24, 1982, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, defendant moved for leave to amend its answer, and, pursuant to Rule 56, moved for summary judgment. This was the first time that defendant asserted res judicata as a potential defense. The trial was delayed by agreement of the parties, and oral argument on the motions was held on August 31, 1982. On that date the district court granted defendant's motion to amend and defendant's motion for summary judgment, and dismissed plaintiff's Title VII claim as barred by res judicata.
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend shall be freely granted "when justice so requires." This liberality of pleading or freedom of amendment, however, is limited when there is "undue delay, bad faith or dilatory motive" on the part of the moving party, and "undue prejudice to the opposing party. . . ." Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). Although the grant or denial of leave to amend is within the discretion of the district court, a decision "without any justifying reason" may be an "abuse of that discretion and inconsistent with the spirit of the Federal Rules." Id.
The burden of the parties, in requesting or resisting the amendment of pleadings, was noted in Advocat v. Nexus Industries, Inc., 497 F. Supp. 328, 331 (D. Del. 1980), in which the Court observed that:
As a practical matter, however, any delay in asserting an affirmative defense for a significant period of time will almost invariably result in some "prejudice" to the nonmoving party. . . . [T]he proper standard is one that balances the length of the delay against the resulting prejudice. . . . [T]he longer the period of an unexplained ...