Lori FREEMAN, Plaintiff, v. MOHAWK INDUSTRIES, d/b/a Dal-Tile Corporation, d/b/a Dal-Tile Distribution, Inc., d/b/a Dal-Tile Services, Inc., Defendant No. 5:10-CV-00522-BR United States District Court, E.D. North Carolina, Western Division Signed March 30, 2012 Counsel Anne W. King, Institute for Public Representation, Washington, DC, Dominique N. Ferrera, Giselle B. Schuetz, Law Offices of Joshua Friedman, Mamaroneck, NY, Laura J. Wetsch, Winslow & Wetsch, PLLC, Raleigh, NC, Rebecca J. Houlding, Law Offices of Joshua Friedman, Larchmont, NY, for Plaintiff. Kristine M. Sims, William J. McMahon, IV, Constangy Brooks & Smith, LLC, Winston-Salem, NC, for Defendant. Daniel, David W., United States Magistrate Judge ORDER *1 This matter is before the Court on Plaintiff's motion for leave to file an amended complaint. [DE-44.] Defendant has responded [DE-45], Plaintiff has replied [DE-46], and this matter is ripe for decision. STATEMENT OF THE FACTS AND THE CASE Plaintiff brought this action against her former employer, Mohawk Industries, d/b/a/ Dal-Tile (“Dal-Tile”),[1] and two other Defendants who have since been dismissed, alleging claims for hostile work environment, racial harassment, sexual harassment, discriminatory discharge, and retaliation pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Compl. ¶¶ 59-88 [DE-1]. Plaintiff alleged the following relevant facts in her complaint. Plaintiff began working as a sales consultant for Dal-Tile in August 2005. Beginning in September 2005, Timothy Koester, a sales consultant for VoStone, Inc., which was a customer of Dal-Tile, subjected Plaintiff to sexual harassment, racial slurs, and derogatory comments. Id. ¶¶ 11-12 & 14. Plaintiff specifically alleged that incidents of harassment occurred in September 2005, Spring 2008, June 2009, and July 2009, and that she reported some of these incidents to her supervisor. Id. ¶¶ 15-19 & 25. While Dal-Tile ultimately banned Koester from the premises during Plaintiff's work hours in an attempt to eliminate contact between the two, Koester continued to contact Plaintiff regarding business and on at least one occasion came to Dal-Tile while Plaintiff was at work. Id. ¶¶ 28, 32, 39 & 41. Plaintiff suffered anxiety and emotional distress, due to which she took leave from her job, and, upon her return, she was demoted. Id. ¶¶ 28, 30-31, 38, 45 & 48-51. Koester was terminated from VoStone in November 2009, but Plaintiff continued to be fearful of further encounters with Koester, who began working for another company in the area. Id. ¶¶ 52-53. She continued to suffer anxiety, panic attacks, and migraine headaches, and, as a result, she resigned from Dal-Tile in December 2009. Id. ¶ 53. The parties conducted the Rule 26(f) conference on May 23, 2011, and on July 1, 2011, Plaintiff received Defendant's initial disclosures. Pl.'s Mem. at 4 [DE-44-1]. On July 13, 2011, Plaintiff served discovery requests on Defendant, id., and on November 1, 2011, Plaintiff was deposed, Def.'s Resp. at 2 [DE-45]. On January 5, 2012, Plaintiff served a second set of discovery requests on Defendant, which were primarily directed at its retention policies and procedures for electronically stored information (“ESI”). Id. at 2-3. On January 16, 2012, Plaintiff filed the instant motion to amend her complaint to add state law claims for wrongful discharge and civil obstruction of justice. Pl.'s Mem. at 1-2. Specifically, Plaintiff contends that she was constructively discharged due to Dal-Tile's failure to take adequate remedial action against Koester and that Defendant failed to preserve email messages and other electronic data after it was put on notice as to Plaintiff's potential claims. Id. DISCUSSION *2 Rule 15 of the Federal Rules of Civil Procedure provides that upon a request to amend a pleading, “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Moreover, “a motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile.” Nourison Rug Corp. v. Parvisian, 535 F.3d 295, 298 (4th Cir. 2008). Notwithstanding the general provisions of Rule 15, where the time for amendments set forth in a scheduling order has passed, an additional “good cause” requirement must first be satisfied, pursuant to Rule 16. Id.; Fed. R. Civ. P. 16(b)(4). Good cause is shown where “evidence supporting the proposed amendment would not have been discovered in the exercise of reasonable diligence until after the amendment deadline had passed.” United States v. Godwin, 247 F.R.D. 503, 506 (E.D.N.C. 2007) (quoting Interstate Narrow Fabrics, Inc. v. Century USA, Inc., 218 F.R.D. 455, 460 (M.D.N.C. 2003)). The “movant must demonstrate that the reasons for the tardiness of his motion justify a departure from the rules set by the court in its scheduling order.” Godwin, 247 F.R.D. at 460 (quoting Rassoull v. Maximus, Inc., 209 F.R.D. 372, 374 (D. Md. 2002)). The Scheduling Order in this case provided, by adoption of the parties' Rule 26(f) report, that Plaintiff's deadline to amend the pleadings was July 29, 2011, and that motions to amend pleadings “must be made promptly after the information giving rise to the motion becomes known to the party or counsel.” July 18, 2011 Scheduling Order at 2 [DE-36]; Rule 26(f) Report ¶ 4(b) [DE-31]. The present motion was filed on January 16, 2012, over five months after the time for filing such motions under the Scheduling Order had passed and less than one month prior to the close of discovery. Nevertheless, Plaintiff contends that the more lenient standard of Rule 15should alone govern the Court's decision and that Plaintiff should not be required to show good cause under Rule 16 to justify a departure from the Scheduling Order. The Court disagrees. Plaintiff contends that the Scheduling Order provided an inadequate amount of time for her to conduct discovery prior to the deadline to amend the pleadings. However, it was the parties who jointly agreed on the July 29, 2011 deadline for Plaintiff to amend the pleadings, which was adopted by the Court in the Scheduling Order. Plaintiff acknowledged that, “with the benefit of hindsight, plaintiff should have asked the Court for a later date.” Pl.'s Mem. at 4 n.4. She further acknowledged that she could have served discovery as early as May 23, 2011, but that the parties chose to wait until after initial disclosures were served on July 1, 2011, before serving discovery. Id. at 10. Additionally, Plaintiff could have sought an extension of the deadline for amending the pleadings prior to its expiration, but failed to do so. Fed. R. Civ. P. 6(b)(1)(A). Plaintiff has provided no authority for the Court to abandon the good cause standard dictated by Rule 16 under these circumstances. Therefore, the Court will consider whether the “evidence supporting the proposed amendment would not have been discovered in the exercise of reasonable diligence until after the amendment deadline had passed.” Godwin, 247 F.R.D. at 503 (citation omitted). As the evidence supporting the proposed amendments is different for each claim, they will be addressed in turn. 1. Wrongful Discharge Claim Plaintiff contends that at her November 1, 2011 deposition “Defendant's counsel elicited testimony about several incidents of sexual harassment against [her], which [she] had not previously recounted.” Pl.'s Mem. at 7. Plaintiff's original complaint included a claim under Title VII on the basis of alleged sexual harassment by Koester that, by Plaintiff's own admission, alleged “scant facts in support of the claim[.]” Id. Plaintiff contends that this is so because she “consciously avoided” listening to Koester's offensive comments and tried to “tune him out.” Id. However, at her deposition Plaintiff was “able for the first time to provide details of Koester's sexual harassment.” Id. Defendant contends that this evidence should have been discovered prior to the Scheduling Order deadline, if not earlier. Def.'s Resp. at 4. The Court agrees. *3 The alleged new testimony elicited by Defendant's counsel was information known to Plaintiff prior to the deadline to amend her complaint. This information was similar to the conduct that served as the basis for her Title VII claims for sexual harassment and discriminatory and retaliatory discharge, which were included in her initial complaint. That Plaintiff was able to recall some of Koester's conduct prior to filing the complaint, but then later was inexplicably able to recall other conduct in detail that she claimed to have consciously avoided hearing is questionable. Further, it does not sufficiently explain why the new evidence “would not have been discovered in the exercise of reasonable diligence until after the amendment deadline had passed.” Godwin, 247 F.R.D. at 503 (citation omitted) (emphasis added). Therefore, Plaintiff has not shown good cause to allow her untimely amendment with respect to her wrongful discharge claim. 2. Obstruction of Justice Claim Plaintiff contends that she was not put on notice as to the obstruction of justice claim until she received Dal-Tile's responses to her discovery requests, which was after the deadline to amend the pleadings. Pl.'s Mem. at 5-6. Dal-Tile does not contest that the basis for this claim rests “entirely on Defendant's discovery responses, which were not served until after the July 29, 2011 deadline for amending pleadings” and stated that it concedes that the Rule 15 standard should apply to the obstruction of justice claim for this reason. However, that the evidence was not discovered prior to the amendment deadline more appropriately goes to whether there is good cause under Rule 16 and not to the question of which standard applies. Def.'s Resp. at 4. Nevertheless, the Court finds that Rule 16's good cause standard is met under the given circumstances. While Plaintiff could have served her discovery at an earlier date, as she acknowledged in her brief, Pl.'s Mem. at 10, the Court finds that Plaintiff was not dilatory in conducting discovery and that, therefore, the evidence “would not have been discovered in the exercise of reasonable diligence until after the amendment deadline had passed.” Godwin, 247 F.R.D. at 503(citation omitted). Accordingly, the Court finds good cause to amend the Scheduling Order to allow Plaintiff's obstruction of justice claim. Notwithstanding, the Court must still consider, pursuant to Rule 15, whether Plaintiff's amendment is prejudicial, made in bad faith, or futile. Defendant contends that Plaintiff's obstruction of justice claim could not survive a motion to dismiss and, therefore, is futile.[2] Specifically, Dal-Tile contends that Plaintiff did not allege sufficient facts in support of her claim, because she failed to allege any acts “intentionally undertaken” by Dal-Tile. Def.'s Resp. at 6. Plaintiff counters that her allegation that Dal-Tile failed to preserve ESI is sufficient to state a claim for obstruction of justice. Pl.'s Mem. at 2-3. The Court agrees that Plaintiff's claim is sufficiently stated so that amendment is not futile. “An amendment is futile where it would fail to withstand a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).” Joy v. Countrywide Financial Corp., No. 5:10-cv-218-FL, 2011 WL 3652697, at *4 (E.D.N.C. Aug. 19, 2011) (citing Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995)). “A motion to dismiss under Rule 12(b)(6)determines only whether a claim is stated; ‘it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.’ ” Id. (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). “A claim is stated if the complaint contains ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Id.(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In evaluating whether a claim is stated, ‘[the] court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,’ but does not consider ‘legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement.’ ” Id. (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009)). “Leave to amend, however, should only be denied on the ground of futility when the proposed amendment is clearly insufficient or frivolous on its face.” Id.(quoting Johnson v. Oroweat Foods, 785 F.2d 503, 510 (4th Cir. 1986)). *4 “Civil obstruction of justice is a common law cause of action, consisting of ‘acts which obstruct, impede or hinder public or legal justice and would amount to the common law offense of obstructing public justice.’ ” Earp v. Quinlan, 698 S.E.2d 556 (table), 2010 WL 3001521, at *7 (N.C. Ct. App. Aug. 3, 2010) (quoting Grant v. High Point Reg'l Health Sys., 645 S.E.2d 851, 855 (N.C. Ct. App. 2007)). The North Carolina Court of Appeals has further explained that the complained-of act must be “intentionally undertaken” to state a claim for obstruction of justice. Blackburn v. Carbone, 703 S.E.2d 788, 795 (N.C. Ct. App. 2010) (noting that “[t]he necessity for showing an intentional act of misconduct by the defendant is delineated in a number of criminal obstruction of justice cases”). In the proposed amended complaint, Plaintiff alleged the following in support of her obstruction of justice claim: 100. After it was put on notice of Plaintiff's potential claims by her formal internal complaint on or about June 3, 2009, and again when it received the EEOC charge in early November 2009, Defendant Dal-Tile failed to preserve Electronically Stored Information relating to Plaintiff's legal claims, resulting in the destruction of evidence including, but not limited to, all e-mail messages from the period of June 2008 through December 2009. 101. Defendant Dal-Tile's failure to preserve Electronically Stored Information obstructed, impeded and/or hindered justice by impeding or preventing Plaintiff's discovery of evidence relevant to this action. 102. As a consequence of Defendant Dal-Tile's conduct, Plaintiff suffered actual damages including, but not limited to, all damages Plaintiff could have recovered had she received the evidence to which she was entitled. Prop. Am. Compl. ¶¶ 100-102 [DE-44-2]. The North Carolina Court of Appeals has found that allegations of document tampering (e.g., altering or removing internet history, deleting files, or in other ways altering the contents of a computer), after being put on notice of a lawsuit, sufficiently states a claim for civil obstruction of justice. Earp, 2010 WL 3001521, at *7. Defendant argues that a mere failure to preserve ESI after being put on notice of Plaintiff's internal complaint and EEOC charge is distinguishable from the conduct in Earp and that there is no allegation or evidence that Plaintiff's emails, or any emails for that matter, were singled out and intentionally deleted. However, this Court has previously found that the destruction of documents pursuant to a document retention policy can be willful, where a defendant “intentionally and deliberately destroyed [the documents] pursuant to its document retention policy.” Powell v. Town of Sharpsburg, 591 F. Supp. 2d 814, 821 (E.D.N.C. 2008). Defendant further asserts that Plaintiff did not allege that she was harassed through email, so that the relevance or even the existence of any evidence is speculative. Whether Defendant had a duty to preserve emails of certain employees that could potentially be related to Plaintiff's case goes beyond the Court's inquiry on a motion to dismiss, which does not resolve the facts or merits of a claim. Joy, 2011 WL 3652697, at *4. Accordingly, Plaintiff's allegation that Dal-Tile failed to preserve ESI related to Plaintiff's claims, after being put on notice of such claims, states a claim for civil obstruction of justice that is “plausible on its face,” Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 570, and is “not clearly insufficient or frivolous,” Johnson, 785 F.2d at 510. *5 In sum, the Court concludes that there is good cause to allow Plaintiff's untimely amendment with respect her civil obstruction of justice claim and that such amendment would not be futile. CONCLUSION Plaintiff's motion for leave to file an amended complaint [DE-44] is GRANTED IN PART AND DENIED IN PART as follows: Plaintiff's motion to amend her complaint is denied as to her claim for wrongful discharge and granted as to her claim for civil obstruction of justice. Plaintiff is ORDEREDto file an amended complaint in conformity with the foregoing within seven (7) days of entry of this order. Footnotes [1] There is some dispute as to whether Plaintiff was employed by Mohawk or Dal-Tile, and the issue is the subject of discovery between the parties, but is not material to this decision. [2] Dal-Tile did not argue that Plaintiff's proposed amendment is prejudicial or made in bad faith, and the Court finds no evidence thereof.