United States District Court, N.D. California
November 12, 2004.
KELLY GREENFIELD, Plaintiff,
AMERICA WEST AIRLINES, INC.; and DOUGLAS STOLLS, Defendants.
The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
MEMORANDUM AND ORDER
Plaintiff's Motion for Leave to Amend Complaint
Plaintiff Kelly Greenfield brought this action against America
West Airlines, Inc., a Delaware corporation, and Douglas Stolls,
an individual, alleging the following causes of action: gender
discrimination, harassment and retaliation, sexual harassment
resulting in a hostile work environment, intentional infliction
of emotional distress, negligent infliction of emotional
distress, wrongful termination, and interference with prospective
economic advantage. Both parties have stipulated to the dismissal
of plaintiff's cause of action for interference with prospective
economic advantage. Now before the court is plaintiff's motion
for leave to amend the complaint to introduce new claims of
defamation and negligent supervision under California state law.
Having considered the parties' arguments and submissions, and for
the reasons set forth below, the court rules as follows.
Kelly Greenfield, age 28, began employment with Defendant
America West Airlines, Inc. ("America West") on March 12, 2001 as
a Customer Service Representative. Her employment with America West was involuntarily terminated on July 31, 2003.
Plaintiff thereafter brought this action against America West
under the provisions of 42 U.S.C. §§ 2000(e) et. seq. alleging
gender discrimination, harassment, retaliation, and sexual
harassment resulting in a hostile work environment, as well as
pendent state court claims for gender discrimination, harassment,
and retaliation in violation of Fair Employment and Housing Act.
Cal. Gov. Code § 12900 et. seq. In addition, she alleged wrongful
termination in violation of public policy and a violation of
California Labor Code § 201 for failure to pay wages upon
plaintiff's alleged wrongful termination against America West.
Against both defendants, plaintiff alleged intentional infliction
of emotional distress and negligent infliction of emotional
distress. The parties have stipulated to dismiss plaintiff's
claim against both defendants for interference with prospective
Both defendants have answered the complaint. Defendants have
asserted a number of affirmative defenses, including their good
faith efforts to prevent sexual harassment, plaintiff's failure
to mitigate damages, plaintiff's failure to state facts
sufficient to recover punitive damages, and statute of
limitations, to name a few. Defendants object to plaintiff's
motion to amend her complaint to add new causes of action. First
of all, they argue that plaintiff has failed to provide the court
with a proposed amended pleading, in violation of the local
rules. Secondly, defendants believe that leave to amend would
cause unfair prejudice to their case because the amendment would
require re-opening discovery and postponing the summary judgment
schedule. Thirdly, defendants characterize this motion as a
dilatory litigation tactic potentially made in bad faith. Lastly,
they argue that leave to amend would be futile for failure to
state a claim for defamation or negligent supervision upon which
relief can be granted.
The Federal Rules of Civil Procedure provide that leave to
amend be "freely given when justice so requires." Fed.R. Civ.
Pro 15(a). The Ninth Circuit has construed this broadly,
requiring that leave to amend be granted with "extraordinary
liberality." Morongo Band of Mission Indians v. Rose,
893 F.2d 1074, 1079 (9th Cir. 1990); see also DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (Rule 15's policy of
favoring amendments to pleadings should be applied with "extreme liberality"); Advanced Cardiovascular Sys., Inc. v.
SciMed Life Sys., Inc., 989 F.Supp. 1237, 1241 (N.D. Cal. 1997)
("[T]he court must be very liberal in granting leave to amend");
Poling v. Morgan, 829 F.2d 882, 886 (9th Cir. 1987) (describing
a "strong policy permitting amendment").
Despite this liberal policy of amendment, leave will not be
given where the district court has "a substantial reason to deny"
the motion. J.W. Moore et al., Moore's Federal Practice §
15.14 (3d ed. 1998) ("[D]istrict judge[s] should freely grant
leave to amend when justice requires, absent a substantial reason
to deny"). The court may decline to grant leave where there is
"any apparent or declared reason" for doing so. Foman v. Davis,
371 U.S. 178, 182 (1962); see also Lockman Found. v.
Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir. 1991).
The Ninth Circuit has interpreted Foman as identifying "four
factors relevant to whether a motion for leave to amend pleadings
should be denied: undue delay, bad faith or dilatory motive,
futility of amendment, and prejudice to the opposing party."
United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981). See
also Poling v. Morgan, 829 F.2d 882, 886 (9th Cir. 1987). The
enumerated factors are not of equal weight, and delay alone is
insufficient to deny leave to amend. Id. (citing Howey v.
United States, 481 F.2d 1187 (9th Cir. 1973)). By the same
token, "[p]rejudice to the opposing party is the most important
factor." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th
Cir. 1990). The party opposing leave to amend bears the burden of
showing prejudice. DCD Programs, Ltd. v. Leighton,
833 F.2d 183, 187 (9th Cir. 1987). In such cases, justice does not require
amendment, as leave to amend would further an injustice upon the
Plaintiff has moved for leave to amend under Federal Rule of
Civil Procedure 15 in the present motion. Defendants have
advanced four arguments for denying the present motion to amend
the pleadings, namely: (1) that plaintiff has failed to provide
the court with a proposed amended pleading, (2) that leave to
amend would cause unfair prejudice to defendants, (3) that
plaintiff has engaged in dilatory tactics, and (4) that leave to
amend would be futile. This court considers these arguments in
light of the applicable factors for evaluating a motion to amend.
See Foman, 371 U.S. at 182. I. Procedural Defects
As an initial matter, the local rules of this district require
that parties filing or moving to file an amended pleading must
reproduce the entire proposed pleading and may not merely
incorporate any part of a prior pleading by reference. Civ. Local
R. 10-1. Plaintiff failed to submit her proposed amended
complaint until requested by the court on October 13, 2004.
Failure to reproduce an entire proposed pleading to this court
provides an adequate basis to reject her motion. However, because
plaintiff subsequently submitted her proposed amended complaint,
this court will rule on the merits of her motion.
II. Prejudice to the Opposing Party
Leave to amend may be denied where it would impose undue
prejudice on the opposing party. Jackson, 902 F.2d at 1387.
Undue prejudice to the opposing party carries the greatest weight
in the evaluation of a motion for leave to amend. Eminence
Capital, LLC v. Aspeon, 316 F.3d 1048, 1051, 1052 (9th Cir.
2003). Indicators of prejudice include a need to reopen discovery
or the addition of claims or parties. Lockheed Martin Corp. v.
Network Solutions Inc., 194 F.3d 980, 986 (9th Cir. 1999)
(noting that the addition of claims not only demonstrated
prejudice, but might also indicate bad faith by the movants).
Absent a showing of prejudice by the opposing party, or a strong
demonstration of any of the remaining factors, there is a
presumption in favor of granting leave to amend. Eminence,
316 F.3d at 1052.
In the instant action, defendants claim that plaintiff's motion
will unduly prejudice their case in two ways. First, defendants
argue that plaintiff's unwarranted delay in filing the instant
motion constituted a questionable litigation tactic. Second,
defendants argue that re-opening discovery and upsetting the
schedule for summary judgment will be unduly prejudicial to their
case. Def.'s Opp'n at 7.
Plaintiff filed the instant motion on September 3, 2004, more
than nine months after the original complaint. While this delay
may be inconvenient, it is not unwarranted. In fact, plaintiff
notified defendant as early as July 14, 2004 of her desire to
file a First Amended Complaint. Pl.'s Exh. A at 1. Defendants
assert that plaintiff was made aware of the facts supporting her
claims of defamation months ago, yet has suspiciously waited to
assert the legal theory of defamation until now. Def.'s Opp'n at 8. More specifically, defendants claim
plaintiff was aware of the unattributed rumor that she stole from
America West and the alleged rumors of her "sexual relations"
with a co-worker no later than her deposition in April, but
waited four months to file her motion for leave to amend. Id.
Plaintiff argues that the facts supporting the proposed
defamation and negligent supervision claims were not confirmed
until discovery. Pl.'s Reply at 8. Late amendments to assert new
theories are not reviewed favorably when the facts and the theory
have been known to the party seeking amendment since the
inception of the cause of action. Acri v. International Ass'n of
Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir.
1986). Plaintiff knew of one fact supporting a potential claim
for defamation at the time of the original complaint. Pl.'s Comp.
at 5, 6. However, she argues that her confidence in pleading the
claim was strengthened after discovery commenced and her amended
pleading confirms the addition of new facts supporting a
defamation theory. Pl.'s Mot. at 3. Certainly plaintiff could
have acted more expeditiously, but the court does not agree, at
least at this time, that granting plaintiff's motion for leave to
amend would reward questionable litigation tactics.
Defendants assert that amendment of the complaint would also be
unfairly prejudicial because it would require re-opening of
discovery and upsetting the current scheduling order. Def.'s
Opp'n at 10. When dealing with a Rule 15(b) motion to amend to
conform to the evidence, the relevant prejudice concerns the late
amendment's effect on the opposing party's ability to respond,
not whether the amendment will lead to an unfavorable verdict.
Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712
(9th Cir. 2001) (factors such as the need to reopen discovery,
delay in the proceedings or additional litigation expense as a
result of the amendment support a finding of prejudice). In the
instant case, defendants had notice of plaintiff's intent to file
a motion to amend since mid-July. Mora Dec. at 1. Both parties
have conducted discovery since July with plaintiff's potential
new claims in mind, and any further discovery should be minimal.
Pl.'s Reply at 9. To the extent that limited additional discovery
may be required, the need for additional discovery is
insufficient by itself to deny a proposed amended pleading based
on prejudice. In re Circuit Breaker Litig., 175 F.R.D. 547, 551 (C.D. Cal. 1997)
(citing United States v. Continental Ill. Nat'l Bank & Trust,
889 F.2d 1248, 1255 (2nd Cir. 1989)).
III. Bad Faith or Dilatory Motive
Bad faith on the part of the moving party also supports denying
a motion to amend. Network Solutions, 194 F.3d 980, 983 (9th
Cir., 1999); Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 879
(9th Cir. 1999). "Where the plaintiff offers to provide
`additional evidence' that would add `necessary details' to an
amended complaint and such offer is made in good faith, leave to
amend should be granted." Broudo v. Dura Pharms., Inc.,
339 F.3d 933, 941 (9th Cir. 2003); McMullen v. Fluor Corp., 81 Fed.
Appx. 197, 199 (9th Cir. 2003).
Facing a summary judgment motion in Network Solutions,
Lockheed sought to amend its complaint to add causes of action on
which discovery had not been undertaken. Network Solutions,
194 F.3d at 986. The district court noted that this might reflect
bad-faith on the part of Lockheed, because Lockheed's motion to
amend came several months after the stipulated deadline for
amending or supplementing the complaint, nothing in the proposed
amended complaint relied on facts that were unavailable before
the stipulated deadline, and Lockheed failed to explain the
delay. Id. Cf. DCD Programs, 833 F.2d at 187 (appellants
offered a satisfactory explanation for their delay in naming HFB
as a defendant because they had waited until they had sufficient
evidence of conduct upon which they could base claims of wrongful
In the instant action, plaintiff filed her motion for leave to
amend approximately three months before the summary judgment
hearing deadline on December 6, 2004. Furthermore, counsel for
plaintiff contacted defendants' counsel as early as July 14, 2004
expressing plaintiff's intent to amend and followed up on August
17, 2004 with a proposed stipulation for a leave to amend. Mora
Dec. at 1. In contrast to Network Solutions, the facts
supporting the proposed claims of defamation and negligent
supervision arose out of discovery that has already been
conducted. Network Solutions, 194 F.3d at 986. Both parties
agree that the facts giving rise to the proposed causes of action
for defamation and negligent supervision were unknown to
plaintiff at the time of filing her initial complaint. Def.'s
Opp'n at 8; Pl's Mot. at 10. Therefore, it is unlikely that
significant further discovery will be necessary, if at all. Pl. Mot. at 9. Thus, the
court will not infer bad faith on the plaintiff's part.
IV. Futility of Amendment
The court may also deny leave to amend where the proposed
amendment would be futile. DeSoto v. Yellow Freight Sys., Inc.,
957 F.2d 655, 658 (9th Cir. 1992); Johnson v. District 2 Marine
Eng. Beneficial Ass'n, 857 F.2d 514, 518 (9th Cir. 1988).
Amendment may be futile where a plaintiff can prove no set of
facts that would constitute a valid claim. Miller v.
Rykoff-Sexton, Inc, 845 F.2d 209, 214 (9th Cir. 1988).
Defendants challenge the efficacy of the proposed amendments on
the basis that the plaintiff has failed to state claims for
defamation and negligent supervision.
A. Failure to State a Claim for Defamation
To state a claim for defamation, plaintiff must establish: (1)
an intentional publication to a third person, (2) of a statement
of fact, (3) that is false and unprivileged, and (4) has a
tendency to injure or cause special damages. Smith v.
Maldonado, 72 Cal. App. 4th 637, 642 (Cal.Ct.App. 1999). A
communication is defamatory if it "tends to harm the reputation
of another as to lower him in the estimation of the community or
to deter third persons from associating or dealing with him."
Restatement (Second) of Torts § 559 (1977). Under principles of
respondeat superior, an employer may be held liable for a
defamatory statement made by its employee. Kelly v. Gen.
Telephone Co., 136 Cal. App. 3d 278, 284 (Cal.Ct.App. 1982).
Plaintiff alleges that defendant Stolls and employees of
America West made false statements to third parties, orally and
in writing, concerning plaintiff and her reputation. Plaintiff
also alleges that these false statements were assertions of fact.
Pl.'s Proposed Am. Comp. at 18. Defendants argue that plaintiff
has provided no evidence to support a cause of action for
defamation, specifically, that she cannot show the existence of
specific defamatory statements and their contents. Def.'s Opp'n
at 11. Defendants cite to Lipman v. Brisbane Elementary Sch.
Dist., in which the California Supreme Court held that the
plaintiff had failed to allege either the specific words or the
substance of statements attributed to the declarant, but instead
merely alleged the conclusions of the declarant that statements
were made which "intimated" and "suggested" that Lipman had done
certain wrongful things. 55 Cal. 2d 224, 235 (Cal. 1961). By contrast, in the instant case, plaintiff has pled with
greater specificity, alleging that defendant Stolls claimed
verbally and in writing that plaintiff had sexual relations with
a male employee which she denies. Pl.'s Reply at 3. Plaintiff
also alleges that defendant Stolls claimed verbally and in
writing that plaintiff violated America West's company policies
resulting in her termination by stating that plaintiff
intentionally moved passengers on July 17, 2003 to travel with
her boyfriend. Pl.'s Reply at 3. The truth or falsity of this
explanation of the July 17, 2003 incident is a factual
determination for a jury, not a judgment as a matter of law.
Defendants also argue that their statements are protected by a
presumption of privilege, because all alleged statements were
made to employees of America West and to other businesses in the
industry. Def.'s Opp'n at 11. The California Civil Code provides
a qualified privilege for publication of a communication made,
without malice, to a person interested therein, (1) by one who is
also interested, or (2) by one who stands in such a relation to
the person interested as to afford a reasonable ground for
supposing the motive for the communication to be innocent, or (3)
who is requested by the person interested to give the
information. Cal. Civ. Code § 47(c). Defendants argue that the
persons involved in the alleged defamatory communications were
"interested" persons, and thus plaintiff's claim is barred by
privilege. See Cal. Civ. Code § 47(3).
While it is true that section 47(3) establishes a qualified
privilege for communications between interested parties, this
privilege is lost where the statements are made with malice.
Agrawal v. Johnson, 25 Cal. 3d 932, 944 (Cal. 1979); Deaile v.
General Tele. Co. of Cal., 40 Cal. App. 3d 841, 847
(Cal.Ct.App. 1974). "Malice" under section 47(c) means "actual malice or
malice in fact, that is, a state of mind arising from hatred or
ill will, evidencing a willingness to vex, annoy or injure
another person." Agrawal, 25 Cal. 3d at 944. Moreover, the
malice necessary to prevent application of this qualified
privilege may be alleged merely by pleading that defendants'
publication was motivated by hatred or ill will toward plaintiff.
Kelly, 136 Cal. App. 3d at 284-285 (1982). To respond to
defendants' affirmative defense of privilege in the present
action, plaintiff has pled that the defamatory statements were
made with malice, more specifically, that defendants'
publications were made with hatred, ill will, and an intent to
vex, harass, annoy, and injure plaintiff. Pl.'s Proposed First Am. Comp. at 19. Plaintiff has sufficiently pled
the hatred or ill will necessary to allege malice as a bar to
defendants' claim for qualified privilege.
Finally, plaintiff alleges damage to her business and
professional reputation, embarrassment, humiliation, severe
emotional distress, loss of employment, and loss of
employability. She has thus pled the final element of defamation.
Plaintiff has sufficiently pled the elements of defamation under
California law, therefore the court does not find the addition of
a claim for defamation to be futile.
B. Failure to State a Claim for Negligent Supervision
An employee who has been harassed or discriminated against, or
otherwise injured by the acts of another employee, may attempt to
sue the employer for negligence in supervision of the other
employee. An employee may state a cause of action for employer
negligence in retaining an employee who allegedly sexually
harassed the plaintiff. Hart v. Nat'l Mortgage & Land Co.,
189 Cal. App. 3d 1420, 1426 (Cal.Ct.App. 1987). In order to
establish a cause of action for negligent supervision, a
plaintiff must allege: (1) the existence of a legal duty of
employer to employee to use due care; (2) how the
defendant-employer breached that duty; (3) how any breach
proximately caused plaintiff's damages; and (4) damages. Love v.
Motion Indus., 309 F. Supp. 2d 1128, 1138 (N.D. Cal. 2004);
see also, 29 Am. Jur. Trials 267, § 32 (a complaint for
damages based on the theory of negligent hiring and retention of
an employee should allege the existence of the employment
relationship at the time of the injury, the incompetence of the
employee, that such incompetence was known or should have been
known to the employer, and that the negligence of the employer
caused harm to the plaintiff).
Plaintiff alleges that America West recognized their duty in
their employee handbook and other memoranda to employees. Pl.'s
Mot. at 14. She believes that America West breached this
recognized duty when they failed to investigate, intervene,
remedy or resolve the situations complained of by numerous
employees of America West after the airline received extensive
notice of defendant Stolls' propensity towards illegal workplace
conduct. Pl.'s Mot. at 14. Plaintiff also alleges that America
West's breach is not only a proximate cause of plaintiff's
injury, but an actual cause of her emotional distress and
resulting physical manifestations of emotional distress. Pl.'s
Mot. at 15. Defendant America West argues that plaintiff fails to allege
that defendant Stolls sexually harassed a single employee of
America West prior to his alleged sexual harassment of plaintiff.
Def.'s Opp'n at 13. However, plaintiff did allege that
defendant's actions against plaintiff were consistent with a
pattern of sexual harassment, retaliation and defamation which
defendant Stolls engaged in prior to harassing plaintiff. Pl.'s
Proposed First Am. Comp. at 21:10-13.
Defendant further argues that many of plaintiff's alleged facts
fail to indicate that America West was aware of defendant Stolls'
various alleged improprieties. Def.'s Opp'n at 14. An employer's
duty, as defined by California authority and the Restatement, is
breached only when the employer knows, or should know, facts
which would warn a reasonable person that the employee presents
an undue risk of harm to third persons in light of the particular
work to be performed. Federico v. Superior Court,
59 Cal. App. 4th 1207, 1214 (Cal.Ct.App. 1997) (holding that the employer
could not be held liable for negligent hiring where it could not
be reasonably foreseen that an employee's child would be molested
by another employee because minors were generally not allowed at
the employer's school of hairstyling). It is important to note
that the Federico court granted summary judgment in favor of
the defendant employer because the plaintiff employee did not
meet her burden to set forth specific facts to survive a motion
for summary judgment, whereas in the instant action, which is
still at the pleadings stage, plaintiff's general allegations of
injury resulting from defendant's conduct are sufficient. Id.;
Bennett v. Spear, 520 U.S. 154, 158 (1997). In the instant
case, plaintiff alleges occasions in which America West was
notified of defendant Stolls' workplace misconduct, including a
situation in which Mr. Jackson, another employee of America West
witnessed the presence of sexually suggestive magazines. Pl.'s
Reply at 6.
To preempt plaintiff's claim of negligent supervision under the
doctrine of workers' compensation exclusivity, defendant argues
that an employee may not sue her employer for negligent
supervision resulting in sexual harassment. Coit Drapery
Cleaners, Inc. v. Sequoia Insurance Co., 14 Cal. App. 4th 1595,
1606 (Cal.Ct.App. 1993) (citing Cole v. Fair Oaks Fire Prot.
Dist., 43 Cal. 3d 148, 161 (Cal. 1987)). Defendant's reliance on
the dicta in Coit suggests that an employee of the defendant
employer may not sue for its allegedly negligent or improper
supervision. Coit, 14 Cal. App. 4th at 1606. However, that case
is an anomaly for two reasons: first, the corporate entity in Coit would not functionally have disciplined or supervised the
perpetrator of the sexual harassment because he was the
president, chairman of the board, and majority shareholder of the
corporation; second, the appellate court's dicta in Coit
misstates the reasoning of the California Supreme Court in Cole
which held that when the misconduct attributed to an employer
includes actions which are a normal part of the employment
relationship (such as demotions, promotions, criticism of work
practices, and frictions in negotiations as to grievances), an
employee suffering emotional distress causing disability may not
avoid the exclusive remedy provisions of the Labor Code by
characterizing the employer's decisions as manifestly unfair,
outrageous, harassment, or intended to cause emotional
disturbance resulting in disability. In the instant case,
defendants' alleged conduct cannot be viewed as a risk of the
employment expected to occur with substantial frequency in the
working environment. Cole, 43 Cal. 3d at 161.
The Workers' Compensation Act, as a matter of policy, does not
estop a plaintiff from pursuing sexual harassment claims in civil
actions. Claxton v. Waters, 34 Cal. 4th 367, 379 (Cal. 2004).
Recognizing that America West does not argue preemption of all of
plaintiff's causes of action, this court nevertheless interprets
applicable case law on negligent supervision of employees
committing intentional torts to keep such cases outside of
workers compensation exclusivity. Plaintiff's case in the present
action does not fall within the boundaries of Cole and Coit.
Plaintiff has alleged that she has suffered and continues to
suffer emotional distress as a result of America West's negligent
supervision in hiring and retaining Stolls with the knowledge of
Stolls' alleged propensity for harassing women.
The California Supreme Court has described "a tripartite system
for classifying injuries arising in the course of employment."
Fermino v. Fedco, Inc., 7 Cal. 4th 701, 713-715 (Cal. 1994).
First, there are injuries caused by an employer's negligence or
without employer fault that are exclusively governed by and
compensable under the workers' compensation system. Second, there
are injuries caused by "ordinary employer conduct" that is
intentional, knowing, or reckless misconduct; such injuries are
also exclusively compensable under the workers' compensation
system. Id. at 714. Third, there are certain types of
intentional misconduct which are not a normal risk of employment
or contrary to fundamental public policy; injuries arising
therefrom fall outside the workers' compensation system. Id. at 714-715. Plaintiff's
cause of action for negligent supervision with regard to sexual
harassment falls within the third category. Accardi v. Superior
Court, 17 Cal. App. 4th 341 (Cal.Ct.App. 1993) (holding that a
claim for emotional and psychological damage arising out of
employment is not barred by the Workers' Compensation Act, where
the distress is engendered by an employer's illegal
discrimination and sexual harassment). While plaintiff may not
prevail in ultimately showing that America West engaged in
negligent conduct that facilitated its employee's allegedly
illegal conduct, the emotional distress of an employee related to
the same set of facts as alleged in a claim of sexual harassment
is not barred as a matter of law. See id. at 353.
As in Accardi, plaintiff's claim of negligent supervision is
related to the same set of facts alleged in her claim of sexual
harassment and thus, the claims are based on allegations of acts
outside the normal scope of employment. Accardi,
17 Cal. App. 4th at 353; Cole, 43 Cal. 3d at 161. To the extent that these
acts constitute the underpinnings of plaintiff's negligent
supervision claim, the claim does not fall within the exclusivity
provisions of the Workers' Compensation Act. Moreover, plaintiff
has sufficiently pled the elements of negligent supervision, and
therefore the court grants plaintiff's motion for leave to amend
to add a claim for negligent supervision.
For the foregoing reasons, the court hereby GRANTS plaintiff's
Motion for Leave to Amend. The complaint is deemed amended as of
the date of this order and defendant's answer shall be filed
within twenty (20) days thereafter.
IT IS SO ORDERED.