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November 15, 2002


The opinion of the court was delivered by: Wayne D. Brazil, United States Magistrate Judge.



For reasons discussed at length below, the Court orders plaintiffs federal claims dismissed with prejudice and remands plaintiffs case to state court. Our decision to remand plaintiffs lawsuit renders moot his motions to continue the dates earlier set for completion of discovery and for trial. The Court's remand of plaintiffs case also leaves it without authority to entertain plaintiffs motion, brought in the alternative, for an order permitting plaintiff to file a third amended complaint.


The procedural history pertinent to the Court's ruling on plaintiffs motions is as follows: On August 11, 2000, plaintiff Daniel Millar filed a Complaint against his employer, San Francisco Bay Area Rapid Transit ("BART") in the Superior Court of California for the County of Alameda. Complaint, filed August 11, 2000. The complaint alleged causes of action arising under state law for discrimination based on disability and on age, and for retaliation. Id. On January 25, 2001, plaintiff filed an amended complaint, adding claims under Title VII, the Americans with Disabilities Act ("ADA"), and the Age Discrimination in Employment Act ("ADEA".) Amended Complaint, filed January 25, 2001. On February 23, 2001, BART removed the case to federal court on the basis of federal question jurisdiction. Notice of Removal of Action Under 28 U.S.C. § 1441 (b) (Federal Question), filed February 23, 2001. Bart filed its answer on or about March 12, 2001. Answer of Defendant San Francisco Bay Area Rapid Transit to First Amended Complaint, filed March 12, 2001.

On July 8, 2002, plaintiff filed a second amended complaint adding allegations of discrimination based on events that allegedly occurred after he initially filed suit. Second Amended Complaint, filed July 8, 2002. Plaintiffs second amended complaint, the operative complaint at the time the instant motions were filed, contains claims for relief for disability discrimination and failure to reasonably accommodate under the California Fair Employment and Housing Act ("FEHA") (first claim for relief), disability discrimination and failure to reasonably accommodate under Title VII of the Federal Civil Rights Act of 1964, as amended, ("Title VII") and the ADA (second claim for relief), for age discrimination under FEHA (third claim for relief), for age discrimination under Title VII and the ADEA (fourth claim for relief), for retaliation under the FEHA (fifth claim for relief), for retaliation under Title VII, the ADA and the ADEA (sixth claim for relief), for discrimination and retaliation in violation of California public policy (seventh claim for relief), and, under California law, for breach of the covenant of good faith and fair dealing (eighth claim for relief.) Id.

The Court's involvement in this case has been limited to holding two Case Management Conferences and issuing a pre-trial order.



Plaintiff first moves the Court for an order dismissing the federal claims in his Second Amended Complaint (the second, fourth, and sixth claims for relief.)*fn1 Although plaintiff failed to identify the Federal Rule under which he seeks dismissal of his federal claims, the Court has determined that plaintiffs request to dismiss these claims should be construed as a motion to amend under Rule 15(a). See, e.g., Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1392 (9th Cir. 1988); Mgmt. Investors v. United Mine Workers of Am., 610 F.2d 384, 394-95 (6th Cir. 1979); see also 8 Moore's Federal Practice, § 41.21 [2] (Matthew Bender 3d ed.)

Analysis of a motion to amend under Rule 15(a) essentially consists of a balancing test in which factors for and against the requested amendment are weighed. The balancing is not conducted in a vacuum, however, but in the context of certain well established guiding principles. Generally, leave to amend should be freely granted — and leave should be denied only on a clear showing that competing considerations outweigh the general policy. Moreover, the law strongly favors applications of procedural rules that permit courts to render decisions on the merits. The effect of these general principles on the balancing we must conduct is to pre-weight the scales at least moderately in favor of granting leave to amend.

Other factors that can weigh in favor of allowing amendment include: (a) avoiding piecemeal litigation and conserving the Court's and the parties' resources by resolving related matters in one proceeding, and (b) avoiding harm to the plaintiff that would be caused by denying leave to amend. Factors that could support denial of leave to amend include: (a) prejudice to the defendant (the most important single factor), (b) bad-faith motive on the part of the plaintiff (for example, use of the motion to postpone the trial date, impose additional expense on the opposing party, or gain additional leverage in settlement negotiations), (c) undue delay or dilatory conduct by the plaintiff, (d) futility of the proposed amendment, and (e) impact on judicial economy, judicial resources and the Court's ability to manage cases and control its dockets.

In the instant case, the general policies of avoiding piecemeal litigation and reaching the merits of cases favor allowing plaintiff to amend his complaint to delete his federal claims. In addition, plaintiff would suffer harm if the Court were to deny his motion to amend. If the Court were to deny plaintiffs motion to amend, his case could not be remanded to state court. Requiring plaintiff to litigate in federal court a case that would be based entirely on state law would: (1) deprive plaintiff of his chosen forum, (2) deny plaintiff the right to have California courts decide the issues of California law that govern his claims, and (3) deny plaintiff the use of California Code of Civil Procedure section 998 as a settlement tool.*fn2

The second of these three considerations is especially weighty in the specific circumstances of this case. The court and the parties have been waiting for some time for a decision by the California Supreme Court in Colmenares. In that case the California high court is expected to decide whether the current version of FEHA applies to conduct that occurred before the 2000 amendments. The Court's answer to that question will have a significant impact on the character and strength of plaintiffs claims in this litigation. Moreover, however the high court rules, major issues about how to construe and apply the general principles the court announces will remain to be litigated. These will be difficult, cutting edge issues with potentially far-reaching implications for many other California litigants. In these circumstances, it is unusually important to permit California courts to address these significant questions of California law in the first instance. By retaining jurisdiction over this case, this federal court, which is not an authoritative arbiter of the meaning of California law, would deprive plaintiff of his right to have the courts of his state address these significant matters. We also would be depriving our sister courts in California, who are much better versed in California law and much less likely to err in construing it, of a potentially important and useful opportunity to develop the implications of whatever general announcements the California Supreme Court makes in Colmenares.

Although we could locate no authority for the proposition that the loss of an opportunity for remand is a harm that can be considered in a Rule 15(a) analysis, we believe that such harm is a reality in a case like this that should be considered. Accordingly, weighing in favor of granting plaintiffs motion to amend is the significant harm he will suffer, as described above, if his ...

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