                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 EUGENE HUDSON, JR.,

         Plaintiff,
                 v.                                         Civil Action No. 17-1867 (JEB)
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,

         Defendant.


                                  MEMORANDUM OPINION

       The law does not reward those who sleep on their rights. Demonstrating why this maxim

of equity exists, Plaintiff Eugene Hudson requests to add a bevy of claims to his Complaint

nearly two years after he asserted almost identical counts in another case — most of which were

soon dismissed — and months after he promised this Court and Defendant that he would not take

the route upon which he now embarks. This slumber does not paint Plaintiff’s newfound interest

in reviving his claims in a flattering light. If mere annoyance were the only resulting harm,

however, perhaps his lag could be excused. Unfortunately, the intervening period saw the death

of a witness central to the newly added claims. And although Hudson attempts to climb out of

this hole by constructing an explanation for his delay, he only digs himself deeper. A glance at

the record reveals that the factual representations underlying his excuse fall far short of the

veracity and candor the Court expects of those appearing before it. As a result, Hudson’s delay

and accompanying conduct, coupled with prejudice to the defense, have put to bed any chance of

now expanding his Complaint. The Court will, accordingly, deny the Motion.




                                                  1
I.     Background

       Over the last couple of the years, this Court has published a veritable tome of Opinions

detailing Hudson’s quarrel with Defendant American Federation of Government Employees.

See, e.g., Hudson v. AFGE, 318 F. Supp. 3d 7, 9–10 (D.D.C. 2018); Hudson v. AFGE, 308 F.

Supp. 3d 388, 391 (D.D.C. 2018); Hudson v. AFGE, 308 F. Supp. 3d 121, 123–26 (D.D.C.

2018); Hudson v. AFGE, 281 F. Supp. 3d 11, 12–13 (D.D.C. 2017); Hudson v. AFGE, 2017 WL

4325681, at *1 (D.D.C. Sept. 27, 2017). It has added to this volume as recently as this month.

See Hudson v. AFGE, 2019 WL 3068295, at *1–2 (D.D.C. July 12, 2019). Some aspects of the

procedural histories of Plaintiff’s multiple cases nevertheless bear repeating here.

       A long-time AFGE official, Hudson rose up through the ranks to become National-

Secretary Treasurer in 2012, winning reelection to another three-year term in 2015. See Hudson,

318 F. Supp. 3d at 9. Within AFGE — a national labor organization with over 1000 affiliated

local unions — the position of NST lies near the top. The occupant is one of three full-time

national officers serving on the union’s governing body, along with the National President and

National Vice-President for Women and Fair Practices. Id. Like many rises, however, Hudson’s

was also followed by a fall. Following an internal charge that he had run afoul of the AFGE

constitution via improper campaign activities, the union launched an investigation that resulted

in Plaintiff’s removal from office in August 2017. See Hudson, 308 F. Supp. 3d at 124–25.

Understandably unhappy with this turn of events, Hudson turned to the courts.

       In so doing, he took a bifurcated approach. First, on September 12, 2017, he filed this

suit asserting that his termination violated rights and protections afforded by two labor-law

statutes. See ECF No. 1 (Compl.), ¶¶ 56–98. This case has since gone through a slew of twists

and turns both in and out of the courtroom, the contours of which need not be rehearsed. See,




                                                 2
e.g., Hudson, 2019 WL 3068295, at *1–2; Hudson, 308 F. Supp. 3d at 123–26. More relevant is

that Hudson filed an Amended Complaint on February 13, 2018, which is currently the operative

pleading. He now seeks to amend this Complaint again in the present Motion.

       Less than a month after logging his first suit, Hudson registered another. In this alternate

attempt to regain his prior position, he again sued AFGE, this time alleging that his tenure as

NST was infected with race discrimination. See Hudson, 308 F. Supp. 3d at 392. Hudson’s

grievance took the form of a four-count Complaint, submitted on October 10, 2017, alleging

employment discrimination, retaliation, a hostile work environment, and “pretextual

discrimination.” Id. The conduct at issue, he asserted, began in 2012 and culminated with his

termination in 2017. Id. at 391–92. (Since the interaction of these two cases is pivotal to the

Motion at hand, the Court, for clarity, will refer to the first (No. 17-1867) as Hudson’s “labor-law

suit” and the second (No. 17-2094) as his “race-discrimination suit.”)

       Faced with two cases concerning the same termination, AFGE moved to dismiss

Hudson’s later-filed Complaint. In an Opinion issued on April 10, 2018, the Court agreed that

much of his race-discrimination case could not proceed. It found first that Hudson had not set

forth the type of severe or pervasive conduct necessary to sustain his hostile-work-environment

claim under Title VII. Id. at 395–96. Further, it noted that almost all the alleged conduct

supporting the other three counts rested on Plaintiff’s termination. This commonality with his

labor-law suit created a problem. The doctrine of claim-splitting bars a later-filed complaint if,

assuming the earlier filed suit were already final, the later complaint would be precluded by res

judicata. Id. at 394. The Court thus dismissed his remaining claims on this ground, except for

the portion of his discrimination count that did “not relate to Plaintiff’s termination,” which

could proceed to discovery. Id. at 395.




                                                  3
       One detail here is worth noting. In his opposition to AFGE’s motion to dismiss, Plaintiff

appeared to request permission to amend his labor-law suit to include the race-discrimination

counts at issue as a means of avoiding Defendant’s claim-splitting challenge. The Court denied

this request without prejudice on April 10, 2018, noting that Hudson had not followed the

appropriate rules. “[I]f he wishes to amend the [labor-law] complaint,” the Court admonished,

“he must seek leave to do so in that case, not here.” Id.

       Plaintiff, however, did not take up this invitation, instead proceeding to discovery on only

the claims he already pled here. In the Rule 26(f) Report filed on July 31, 2018, Hudson stated

that he did not “currently anticipate[] any need . . . to amend any pleadings.” ECF No. 54 at 2.

Given this representation, AFGE did not propose, and the Court did not provide, any deadline for

seeking amendment. Id.; see also ECF No. 78 (Def. Opp.) at 7.

       This spring, Plaintiff reversed course. Following a series of procedural errors, he filed

the operative Motion for Leave to Amend his (already-once-amended) Complaint on May 8,

2019. The Court will discuss the details of his proposed new Complaint below. Suffice it to say

for now, though, that it is primarily a smorgasbord of his labor-law and race-discrimination

counts, including the dismissed counts. For those keeping track, this request to add new counts

comes nearly a decade after the earliest conduct at issue, a little under two years since his

termination, 17 months after he filed nearly identical counts in this Court, over a year after this

Court dismissed many of those counts, and eight months after he told the Court and Defendant

that he would not seek to amend. Adding to this list, AFGE notes in its Opposition that his

Motion also comes several months after a key player in his termination passed away. See Def.

Opp. at 4. To justify his delay, Hudson asserts that his added counts rest “on newly discovered

evidence.” See ECF No. 76 (Pl. Mot.) at 1.




                                                  4
II.    Legal Standard

         A plaintiff may amend her complaint once as a matter of course within 21 days of

serving it or within 21 days of being served a responsive pleading. See Fed. R. Civ. P.

15(a)(1)(B). Otherwise, she must seek consent from the defendant or leave from the court. See

Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. In

deciding whether to grant leave to file an amended complaint, the court may consider “undue

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies

by amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178,

182 (1962). In this Circuit, “it is an abuse of discretion to deny leave to amend unless there is

sufficient reason.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Furthermore,

under Rule 15, “the non-movant generally carries the burden in persuading the court to deny

leave to amend.” Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C. 2004).

III.   Analysis

       In opposing Hudson’s Motion, AFGE unleashes the full cavalry. Amendment at this

point, Defendant says, is unduly delayed, prejudicial to the defense, and futile. See Def. Opp. at

9. Not to mention, it continues, that it believes bad faith to be motivating Plaintiff’s choices. Id.

Marching through these arguments, the Court need not reach the end of the line. Looking at the

length of delay, the accuracy of Hudson’s explanation therefor, and the resulting prejudice to

Defendant, the Court finds inescapable the conclusion that Plaintiff’s amendment is

inappropriate at this stage.




                                                  5
       A. Undue Delay

       Start with undue delay. As the D.C. Circuit has made clear, a party’s deficiency on this

score presents an independently sufficient reason to deny his attempt to amend a complaint. See

Trudel v. SunTrust Bank, 924 F.3d 1281, 1288 (D.C. Cir. 2019) (“‘[U]ndue delay’ is a valid

ground for denying leave to amend.”); Elkins v. District of Columbia, 690 F.3d 554, 565 (D.C.

Cir. 2012) (similar); Atchinson v. District of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996)

(“[O]ur case law also make[s] clear that undue delay is a sufficient reason for denying leave to

amend.”). This is especially true where, as here, the plaintiff seeks to add factual allegations

rather than merely to clarify existing legal theories. See City of Moundridge v. Exxon Mobil

Corp., 250 F.R.D. 1, 6 (D.D.C. 2008); cf. Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir. 1999)

(noting that timeliness alone insufficient when “amendment would do no more than clarify legal

theories or make technical corrections”). Although prejudice is a helpful inquiry in this

determination, see Atchinson, 73 F.3d at 426 (noting that courts “should generally take into

account . . . the possibility of any resulting prejudice”), it is not a necessary one. See Harris v.

Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339, 345 (D.C. Cir. 1997) (holding that requiring

prejudice would “reduce[] the multifarious reasons for denying leave to amend . . . to [a] single,

non-exhaustive factor”). In deciding whether Hudson’s delay is undue, the Court looks both to

the absolute amount of time that has elapsed and the parties’ conduct in the litigation during that

period, including his explanation for the delay. See Atchinson, 73 F.3d at 426; Trudel, 924 F.3d

at 1288; City of Moundridge, 250 F.R.D. at 6.

               1. Length of Delay

       Turning to the facts at hand, the magnitude of Hudson’s delay here is no small fry. The

clock measuring a plaintiff’s tardy filing starts to run when he learns “sufficient information” to




                                                   6
assert the count. See LaPrade v. Abramson, 2006 WL 3469532, at *4–5 (D.D.C. Nov. 29, 2006);

see also Anderson v. USAir, Inc., 818 F.2d 49, 57 (D.C. Cir. 1987) (affirming denial of leave to

amend when “counts were based on facts known prior to . . . discovery” and new fact “bear[s]

only tangential relation to the underlying incident”); United States ex rel. Westrick v. Second

Chance Body Armor, Inc., 301 F.R.D. 5, 9 (D.D.C. 2013) (noting undue delay where “movants

failed to promptly allege a claim for which they already possessed evidence”); McGee v. District

of Columbia, 646 F. Supp. 2d 115, 121 (D.D.C. 2009) (denying leave to amend where “claims in

an amended complaint are based on the same legal duties or facts asserted in the original

complaint”); Hoffman v. United States, 266 F. Supp. 2d 27, 33 (D.D.C. 2003), aff’d, 96 F. App’x

717 (Fed. Cir. 2004) (counting from when plaintiff had “all the facts necessary to raise the

claims” at issue). As Plaintiff acknowledges, he has known the core basis underlying his new

proposed claims for years, including at the time he first filed suit in September 2017. See Pl.

Mot. at 15–16; ECF No. 80 (Pl. Reply) at 11–12. This is only logical: the principal allegations

concern others’ conduct towards him, events for which he was not only a witness but the

purported target. Perhaps for this reason, he posits that the counts he now seeks to add are not

“new”; rather, the proposed amended Complaint “simply incorporate[s]” the claims from his

race-discrimination suit filed in October 2017, including those previously dismissed. See Pl.

Mot. at 15–16. Characterized in his own words, his Motion thus seeks to “restore[]” these claims

from his race-discrimination case. Id. at 5. Since he could have asserted those claims in this

case when he first filed suit, however, his current attempt to do so comes a year and a half late.

       Hudson tries to compress this time. Even if he previously asserted similar counts, he

says, his proposed amendment also incorporates “newly discovered evidence” obtained during

discovery on the remaining count in his race-discrimination case. Id. at 1, 11. This argument




                                                 7
falls far short, as it rests on both shaky factual and legal foundations. (One logistical note before

proceeding: Plaintiff’s brief, which refers to information governed by a protective order signed

by the parties, has been filed under seal. So as not to upset the parties’ agreement, the Court will

refer to certain information regarding this brief only in broad strokes.)

        Starting with the legal issue, the clock measuring delay, as noted above, starts to run

when a plaintiff possesses a sufficient factual basis to assert a count; it does not reset every time

he later learns of some fact that may provide additional support for his argument. See Mittleman

v. United States, 997 F. Supp. 1, 10 (D.D.C. 1998), aff’d sub nom. Mittleman v. King, 1998 WL

796300 (D.C. Cir. Oct. 15, 1998) (“Plaintiff's recent discovery of a new fact supporting this

cause of action does not mitigate the extreme delay in her request to amend her complaint.”);

Yager v. Carey, 910 F. Supp. 704, 732 (D.D.C. 1995) (similar). And here, the obvious evidence

of the date at which Hudson believed that he possessed the core relevant facts to assert these

counts are when he did, in fact, first plead them. But there is more. Here lies the faulty factual

footing.

        As the Court sees it, the “new” facts that Plaintiff contends justify amendment do no such

thing. These allegations fall into two overlapping buckets. The first are facts that cannot

possibly be characterized as new. This category contains racial epithets directed his way, some

of which he claims others also witnessed. See, e.g., Pl. Reply at 10. In other words, he cannot

claim to have just learned of these. Also falling into this category are items that, as discussed

more below, Hudson has previously mentioned to this Court in filings made long ago, rendering

his current assertions of novelty suspect. Having reviewed the proposed Second Amended

Complaint, there can be little doubt that the lion’s share of relevant factual assertions was known

to him at the time he first filed this case.




                                                  8
        Second, other facts he claims to be new are simply incapable of justifying his delay.

Some, compared with what he already knew, are so tangential as to border on irrelevant.

Compare, e.g., Pl. Mot. at 16 with Dkt. 17-2094, ECF No. 11 at 5–6; see also Yager, 910 F.

Supp. at 732 (concluding that even though plaintiff received certain documents later, that “does

not change the fact that plaintiffs asserted” similar counts in separate matter “three months

earlier”). For others, the moniker “new” is a poor fit. Plaintiff, for example, repeatedly

references as newly discovered evidence a transcript of a union meeting he obtained on October

24, 2017. See Pl. Mot. at 18. Even if this evidence could justify adding a new count (e.g., for

disparate treatment) in 2017 — on which the Court takes no position — it certainly does not do

so nearly two years later in 2019. See Yager, 910 F. Supp. at 732 (concluding similarly).

Likewise, in his Reply, Plaintiff attaches several affidavits from witnesses who lament the

union’s treatment of Hudson. See Pl. Reply at 2–3. Not only do these affidavits post-date his

proposed Second Amended Complaint — and thus cannot serve as its basis — the Court sees no

reason why Plaintiff could not have obtained such evidence earlier. A plaintiff does not get the

benefit of a reset clock for obtaining evidence years into litigation that he could have gotten at

the start.

        When Hudson ultimately moved to amend in the spring of 2019, therefore, the timer had

been running since the fall of 2017. This is not a good look. Given the system’s interest in the

orderly administration of litigation, a delay measured in years gives the Court serious pause

about permitting such a change now. See Harris, 126 F.3d at 345 (“Strategic or merely lazy

circumventions of a legal process grounded in sound policy have the effect of eroding the

regularized, rational character of litigation to the detriment of practitioners and clients alike.”);

cf. Borda v. U.S. Dep’t of Justice, 306 F. Supp. 3d 306, 313 (D.D.C. 2018) (collecting cases of




                                                   9
undue delay ranging from two to five years and noting that “delay of several years between the

filing of the initial action and the request to amend is generally undue”).

               2. Litigation Conduct

       Undue delay, however, is not solely a function of time; the Federal Rules, for instance, do

not provide any sort of chronological cutoff after which amendment is unavailable. Whether a

delay is undue, rather, rides also on the parties’ “conduct in the litigation” and the circumstances

particular to the case. See City of Moundridge, 250 F.R.D. at 6; see also Atchinson, 73 F.3d at

426 (similar). It is a decision accordingly vested “in the sound discretion of the district court.”

McGee, 646 F. Supp. 2d at 119 (citing Firestone, 76 F.3d at 1208). This latter inquiry proves

dispositive. Tracing the course of this litigation — and Plaintiff’s conduct in particular — first

tips the scales away from the general equities favoring amendment and then, proceeding on,

overwhelms them completely.

       Starting at the beginning, one factual nub, already noted above, deserves another mention

now: Hudson knew the core basis for the counts he currently seeks to add at the time he filed the

instant lawsuit. See Pl. Reply at 11; Pl. Mot. at 15. In fact, he appears to have considered filing

a single case at that time alleging both categories of claims, but ultimately did not pursue this

option. See Pl. Reply at 11. Other courts have found this circumstance to constitute a sufficient

basis for denying leave to amend. See LaPrade, 2006 WL 3469532, at *4 (denying motion

where “plaintiff was aware of the facts giving rise to the cause of action before filing the

complaint that she now wishes to amend”); Williams v. Savage, 569 F. Supp. 2d 99, 108 (D.D.C.

2008) (denying motion where “plaintiffs possessed the relevant information . . . when they filed

their original complaint”); Yager, 910 F. Supp. at 731 (“The court finds that plaintiffs have been

dilatory and they have unduly delayed their attempt to amend their complaint because plaintiffs




                                                 10
were aware of the facts giving rise to the cause of action before initially filing the complaint.”).

Hudson appears to try to get out from under this decision by attributing it to a lawyer no longer

on the case. See Pl. Reply at 11. This fact has no bearing. Plaintiff does not get a do-over,

untethered from his and his counsel’s prior actions, when his legal team changes years into a

litigation.

        Even if Hudson’s initial delay could be excused, his next steps cannot. To begin, he did,

in fact, seek leave to amend his Complaint well over a year ago, which the Court granted. See

Feb. 7, 2018, Minute Order; ECF No. 36 (Am. Compl.). Nary a mention of race discrimination

nor any of the counts Plaintiff seeks to add, however, turned up in this new Complaint’s 39

pages. See generally Am. Compl. As another court in this district explained, “It is well-

established that ‘[t]he district court’s discretion to deny leave to amend is particularly broad

where a plaintiff previously has amended the complaint.’” Hajjar-Nejad v. George Washington

Univ., 873 F. Supp. 2d 1, 12 (D.D.C. 2012) (quoting World Wide Rush, LLC v. City of Los

Angeles, 606 F.3d 676, 690 (9th Cir. 2010)); see also Howell v. Gray, 843 F. Supp. 2d 49, 54

(D.D.C. 2012) (noting as factor “whether the plaintiff has previously amended the

complaint”). Off the bat, things look poor for Hudson.

        Then, in the same month, AFGE moved to dismiss Plaintiff’s race-discrimination suit on

the ground of claim-splitting. See Dkt. 17-2094, ECF No. 8. Two months later, on April 10,

2018, this Court granted that motion in large part, dismissing some of Plaintiff’s claims for that

reason and one for failing to state a claim. See Hudson, 308 F. Supp. 3d at 395. This means that

by February 2018 — and certainly by April of that year — Plaintiff was on notice of the

deficiencies related to claim-splitting in his race-discrimination case. Yet, until over a year later,

he did nothing. On this ground, too, courts have denied a late attempt to amend. See Hajjar-




                                                  11
Nejad, 873 F. Supp. 2d at 11–12 (noting that party on notice of deficiency “fail[s] to ‘avail

themselves of an opportunity to rectify the deficiencies’ ‘at their peril’”) (quoting Ca. Publ

Emps. Ret. Sys. v. Chubb Corp., 394 F.3d 126, 165 (3d Cir. 2004)); see also City of

Moundridge, 250 F.R.D. at 6 (“Leave may be denied if a plaintiff . . . had ‘sufficient opportunity

to state a claim and has failed to do so.’”) (quoting Williamsburg Wax Museum, Inc. v. Historic

Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987)). Having been “put on notice as to the

deficiencies in his complaint,” a plaintiff’s decision to hit snooze extinguishes his option to cure

down the road. See Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir.

2002). What is more, in case Hudson had any confusion about the proper way to cure these

deficiencies, the Court informed him in its Opinion that if he wished to amend his Complaint in

this case, he must seek leave to do so. See Hudson, 308 F. Supp. 3d at 395.

       Hudson, however, took the opposite course. Over three months later, he expressly

disavowed any current intent to amend his Complaint. See ECF No. 54 at 2 (noting that Hudson

did not “currently anticipate[] any need . . . to amend any pleadings”). It was many months

before Plaintiff noted any intention to pull a one-eighty. With this course of conduct, his

likelihood of success diminishes further. See Hajjar-Nejad, 873 F. Supp. 2d at 12 (faulting party

for “expressly disclaim[ing] any intention of pursuing” claim he later sought to add).

       Hudson, in retort to AFGE’s reference to his general delay, notes that aspects of the case

have been stayed twice during the course of the last two years. See Pl. Mot. at 2. Once, the

Court granted AFGE’s request to halt briefing on Plaintiff’s motion for preliminary injunction

pending an upcoming meeting of the union’s National Executive Council, as the outcome of that

meeting had some relation to Hudson’s labor-law claims. See Jan. 29, 2018, Minute Order. This

short stay of a briefing schedule, however, has little to no bearing on the race-discrimination




                                                 12
counts that Plaintiff now seeks to add, and it does not excuse his procrastination. Next, the Court

stayed discovery on August 31, 2018 — almost five months, it notes, after its decision

dismissing much of Plaintiff’s race-discrimination case — while the parties engaged in

mediation. See Aug. 31, 2018, Minute Order. This stay lasted until March of 2019. See ECF

No. 62 (Joint Status Report); Mar. 21, 2019, Minute Order (ordering proposed discovery

schedule). While this stay may help to forgive his inaction during mediation, it does not aid

Plaintiff in explaining away the broad swaths of time preceding the stay nor his past steps in this

litigation.

        Taking all past action into account, the Court concludes that permitting amendment at

this stage would “have the effect of eroding the regularized, rational character of litigation.”

Harris, 126 F.3d at 345.

               3. Explanation for Delay

        This brings us to the current moment. When there exists a delay in pleading a previously

known allegation, a justifiable reason for delay can go a long way toward helping a plaintiff’s

cause; failing to provide one, conversely, does the opposite. See Trudel, 924 F.3d at 1288

(relying on fact that “plaintiffs offered no good reason for failing” to timely amend complaint);

Williamsburg Wax Museum, Inc., 810 F.2d at 247 (affirming denial of leave to amend where

movant “offered no explanation for its tardiness”); Borda, 306 F. Supp. 3d at 313 (“The reason

for delay is also relevant to the determination of whether leave to amend should be granted.”);

James Madison Project v. Dep’t of Justice, 208 F. Supp. 3d 265, 280 (D.D.C. 2016) (finding

delay of approximately six months after being on notice of deficiency undue when “[p]laintiff

provide[d] no reason for this delay”).




                                                 13
         Perhaps understanding the importance of providing a justification, Hudson attempts to

offer one. As already noted, the basis of his current Motion, he says repeatedly, is the discovery

of evidence previously unavailable to him. See Pl. Mot. at 1, 9, 11, 16, 21. He goes so far as to

title his motion as one for “Leave to File . . . Based on Newly Discovered Evidence Obtained

During Discovery.” Id. at 1. (The discovery at issue, the Court notes, is not in the instant case,

but in Hudson’s race-discrimination suit.) The evidence to which he points, he says, “was not

available until the March 20, 2019,” deposition of AFGE President J. David Cox. Id. at 9.

Plaintiff asserts that such “newly discovered evidence” is the basis of both his attempt to re-

introduce his hostile-work-environment claim, as well as counts related to his termination. Id. at

9, 11.

         The evidence to which Hudson points, however, is anything but new. “This evidence,”

he says, includes two incidents — one in 2011 and another 2015 — in which an AFGE employee

referred to Hudson with a racial slur. Id. at 8. At Cox’s deposition, Hudson said he learned that

“AFGE officials at the highest level” knew of this conduct but refused to take remedial action.

Id. at 8–9.

         Simply put, Plaintiff did not learn these facts at Cox’s deposition. First, he knew this

happened in the very moment, as he was the target of the epithet. His own filings, moreover,

leave no doubt about the inaccuracy of his statement. Faced with a motion to dismiss in his race-

discrimination case, Plaintiff, in March 2018, extensively detailed this 2011 incident. See Dkt.

17-2094, ECF No. 11 at 4–8. In that discussion, his brief quotes from Hudson’s filing made at

the time with AFGE, in which he attests that Cox witnessed the incident, along with several other

high-ranking AFGE officials. Id. at 5. His brief then laments that AFGE took no significant

action against the offender. Id. at 7. This same filing also explains that he failed to include these




                                                  14
facts “and other examples of racially disparate treatment” in his Complaint only because his

counsel had accidentally omitted them in “hurriedly” filing the Complaint. Id. at 8. Now, over a

year later, Hudson asserts that this evidence is new to him and was unavailable before March 20,

2019. See Pl. Mot. at 8–9. The Court has trouble seeing this factual statement as anything short

of a misrepresentation.

       The same goes for the 2015 incident. Like the event described above, Hudson again was

a central character in that dispute. And his proposed Second Amended Complaint itself asserts

that he informed Cox about this issue in 2015. See ECF No. 76, Attach. 2 (Second Am. Compl.),

¶ 84. Again, Plaintiff’s assertion that the existence of this incident and AFGE’s reaction

constitute newly discovered evidence is simply not accurate. See Pl. Mot. at 9.

       Finally, Plaintiff says that he “also learned during the Cox deposition” of another incident

of race discrimination. See Pl. Mot. at 8. This one did not involve Hudson and occurred more

than a decade earlier in 2001, thereby rendering its relevance now questionable. More to the

point, however, AFGE attests that Hudson’s counsel acknowledged at the Cox deposition that

Hudson knew of this incident as early as 2011, see Def. Opp. at 14, a point that goes unrebutted

in Hudson’s Reply. It is also of note that these events are fully detailed in a published judicial

opinion. See Stone v. AFGE, 135 F. Supp. 2d 873 (N.D. Ill. 2001).

       The Court finds troubling the delta between the statements in Hudson’s brief and those

established by the record. There is simply no “new evidence” capable of sustaining his Motion,

despite his assertions to the contrary. This is a compound mistake for Plaintiff. First, he is left

without a “good reason” for his delay, further undermining — and at this point, burying — his

request for leave to amend. See Trudel, 924 F.3d at 1288. Second, the lack of veracity apparent

in his filings counts against him. The Court depends on the representations of counsel for the




                                                 15
orderly administration of a case; such candor is a central tenet of the legal profession. The Court

is not in the business of rewarding mischaracterization and will not validate counsel’s flouting of

this norm by granting the discretionary action Plaintiff seeks. Maintaining the integrity of the

judicial process counsels against granting his request.

       B. Prejudice

       Even before reaching the question of prejudice, Plaintiff’s request to amend his already-

amended Complaint has fallen into a hole with unscalable walls. This inquiry, nonetheless,

provides another reason to deny his Motion, see Foman, 371 U.S. at 182, at least with respect to

the termination counts.

       The “denial of the opportunity to present facts or evidence which would have been

offered had the amendment been timely” is the paradigmatic form of prejudice. See Does I

through III v. District of Columbia, 815 F. Supp. 2d 208, 215 (D.D.C. 2011) (internal quotation

marks omitted); accord City of Moundridge, 250 F.R.D. at 6. That is the case here. AFGE

points out that National Vice President Augusta Thomas — one of the three other national

officials on AFGE’s governing body — played an instrumental role in Hudson’s termination.

See Def. Opp. at 4–6. She would provide key testimony, AFGE says further, on whether race

was, in fact, a factor in that decision, which is central to the discrimination counts Plaintiff seeks

to add. Id. at 7–8.

       Unfortunately, on October 10, 2018, Thomas passed way. Her testimony is thus no

longer available to AFGE. This event occurred approximately a year after Plaintiff filed suit in

this case and six months after this Court dismissed much of his prior race-discrimination counts

on claim-splitting grounds, but about six months before he sought to amend his Complaint to add

the race-discrimination counts. AFGE contends that it did not seek to preserve Thomas’s




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testimony prior to her death in reliance on Hudson’s representations that he would not seek to

amend this Complaint. See Def. Opp. at 18–19.

       In his Reply, Plaintiff does not question Thomas’s centrality to his race-discrimination

case nor her irrelevance to his labor-law claims. His only beef, rather, is with AFGE’s claim that

it even knew of her poor health and thus would have sought to preserve her testimony if it had

known of its necessity. See Pl. Reply at 17. Having reviewed the docket, however, the Court

thinks it reasonable that in the thirteen months between when Hudson filed this case — and

could have included his race-termination counts — and Thomas’s death, AFGE could, and

would, have obtained her deposition. Defendant, for its part, contends that Thomas was ill

before her death, which would have prompted action. See Def. Opp. at 18–19. Its inability to do

so now amounts to prejudice justifying the denial of Plaintiff’s Motion.

                                         *       *         *

       It is clear that Plaintiff would like to change course. In doing so, however, he is not free

from this litigation’s history. Hudson and his counsel have made a series of strategic choices

during this case, including filing a Complaint and an Amended Complaint without any mention

of the race discrimination for which Plaintiff alleges to have long had evidence. His repeated

decisions to delay this avenue of attack — even when alerted by the Court and opposing counsel

as to the procedurally correct way to proceed — have left him without the option of doing so

now. This consequence is especially clear when, as here, the delay deprived Defendant of the

opportunity to present key testimony. Hudson digs himself only deeper by filing a brief that

relies on factual misrepresentations. The Court will not reward Plaintiff’s attempt to revive his

claims by trying to pull the wool over the Court’s eyes.




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IV.    Conclusion

       For these reasons, the Court will deny Plaintiff’s Motion for Leave to Amend. A separate

Order so stating will issue this day.


                                                          /s/ James E. Boasberg
                                                          JAMES E. BOASBERG
                                                          United States District Judge
Date: August 2, 2019




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