The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
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. ...