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RAYA v. MARYATT INDUS.

July 26, 1993

DOLORES RAYA, Plaintiff,
v.
MARYATT INDUSTRIES and GREGORY CORNELL, Defendants.


PATEL


The opinion of the court was delivered by: MARILYN HALL PATEL

INTRODUCTION

 Plaintiff Dolores Raya's motion for leave to amend her complaint was heard before the late Judge Robert F. Peckham on December 21, 1992. Raya seeks to amend her complaint to substitute a claim under the Americans with Disabilities Act (ADA) for the disability discrimination claim set forth in the original and amended complaints. Raya also requests a jury trial under Rule 39(b). Having considered the submissions and arguments of the parties, and for the following reasons, the court DENIES the motion for leave to amend the complaint.

 BACKGROUND

 Raya filed her original complaint in September 1988 in California state court. The original complaint alleged 1) retaliation, 2) physical handicap discrimination in violation of California Government Code § 12940, 3) breach of contract, 4) intentional infliction of emotional distress, 5) specific performance, and 6) tortious breach of the covenant of good faith and fair dealing. The case was removed to this court shortly thereafter. In September 1989, the court granted summary judgment for defendants on all six of the claims. In August 1991, the Ninth Circuit reversed as to the retaliation and physical handicap discrimination claims. Thus, those two claims are now the only remaining claims in plaintiff's original complaint.

 Raya was represented by counsel from October 1989 to September 1991 during her appeal to the Ninth Circuit. After that time, a non-lawyer cousin, Rudolfo Velasquez, aided her. After several major discovery disputes, this court appointed counsel to represent Raya. (Order of June 25, 1992.)

 Raya's new counsel, appointed in October 1992, filed a motion for leave to amend the complaint on November 9, 1992. The amended complaint requests a trial by jury and the use of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. for the disability discrimination claim in the original and amended complaints.

 DISCUSSION

 Defendants oppose plaintiff's motion on three grounds: 1) plaintiff's motion is procedurally defective; 2) plaintiff's attempt to add a claim under the ADA should be denied because the ADA does not apply retroactively, the amendment was unduly delayed, and the amendment would cause undue prejudice; and 3) plaintiff has waived her right to a jury trial.

 Defendants contend that plaintiff failed to file a copy of the proposed amended complaint. On October 19 and November 10, 1992, plaintiff served defendants' counsel with a copy of the proposed amended complaint, which plaintiff lodged with the court on October 14 and November 10. Neither the Local Rules for the Northern District of California nor the Federal Rules of Civil Procedure require a party to formally file a proposed pleading. In fact, it is more proper to lodge a proposed filing with the court until leave is granted to actually file the document. Thus, counsel for Raya did not err in failing to formally file the complaint.

 Defendants also object that plaintiff's notice of the motion fails to "state with particularity the grounds therefor, and . . . the relief or order sought" in accordance with Fed.R.Civ.P. 7(b). While it would have been preferable for plaintiff to have specified the basis for her amendment in addition to the relief requested, this error is not a ground for denying the motion.

 B. Request to Add ADA Claim

 Plaintiff wishes to amend her complaint to substitute a claim under the ADA for the disability discrimination claim in her original and amended complaints. Leave of court to amend a pleading "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Federal Rules favor granting leave to amend, according to the Supreme Court:

 
In the absence of any apparent or declared reason -- such as 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, futility of ...

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