The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER (1) GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND; (2) DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; AND (3) REFERRING CASE TO THE MAGISTRATE JUDGE FOR FURTHER CASE MANAGEMENT
In this employment discrimination and labor law case, Defendant filed a motion for summary judgment and Plaintiff filed a motion for leave to file a second amended complaint. Both motions are opposed. For the reasons which follow, Plaintiff's motion for leave amend is GRANTED, Defendant's motion for summary judgment is DENIED WITHOUT PREJUDICE, and the case is REFERRED to the Hon. Barbara L. Major for further case management.
Plaintiff was employed by Defendant initially as a retail sales person, then a Parts Sales Manager, and ultimately a Store Manager. After she became pregnant, she was demoted and later terminated. She alleged that Defendant had a policy against promoting women, that she was discriminated against based on gender and pregnancy, and that she was demoted and later terminated for having complained about it. In addition, Plaintiff was allegedly not compensated as required by California and federal labor laws.
She filed a complaint in State court, which Defendant removed based on diversity jurisdiction. Because Plaintiff was terminated during the pendency of this action, the parties stipulated to amend the complaint. Subsequently, the parties completed discovery and Defendant filed a summary judgment motion. After the motion was submitted, and after the expiration of the deadline for amendment of pleadings, Plaintiff filed the instant motion.
During the briefing on the summary judgment motion, Plaintiff's counsel substituted another counsel as second chair in two jury trials against Defendant involving similar claims as those alleged by Plaintiff in this action.*fn1 (Decl. of Charles Moore at 2.) Four calendar days after verdict in the second trial, Plaintiff filed the instant motion to supplement the complaint with new facts learned in the course of the two trials.
In the first amended complaint Plaintiff alleged claims for employment discrimination under the Fair Employment and Housing Act, Cal. Gov't Code § 12900 et seq. ("FEHA"); failure to pay wages under California Labor Code Sections 203 and 1194; failure to pay wages under the Fair Labor Standards Act, 29 U.S.C. §216; unfair competition under California Business and Professions Code Section 17200 et seq; unjust enrichment; and employment discrimination under Title VII. Plaintiff requests to amend the complaint and allege additional facts in support of her claims, specifically Defendants' discriminatory intent and scienter with respect to the labor law violations. The proposed second amended complaint also breaks down the FEHA claim into four distinct causes of action: (1) pregnancy and sex discrimination, (2) pregnancy and sex harassment, (3) retaliation, and (4) failure to prevent discrimination, harassment and retaliation. Plaintiff will drop the Title VII and Equal Pay Act claims.
When, as here, the case management deadline for amending pleadings has passed, the plaintiff must show good cause under Federal Rule of Civil Procedure 16(b) to extend the deadline before leave to amend can be granted. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). The "good cause" inquiry "primarily considers the diligence of the party seeking the amendment." Id. at 609. "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification." Id. The court may allow a post-deadline amendment if the deadline could not reasonably have been met despite the diligence of the moving party. Id.
Plaintiff filed the motion for leave to amend four calendar days (one business day) after the verdict in the second trial. The court therefore cannot conclude that Plaintiff was dilatory in filing the motion after learning the pertinent facts. She also asserts that she did not know the new facts before the due date for amending pleadings had passed, she first learned them during the two trials, and could not have learned them sooner, because Defendant did not disclose them in discovery in this case, although they were covered by Plaintiff's requests. (See Pl.'s Reply at 2, 4 & 5.) Based on the foregoing, Plaintiff has shown good cause under Rule 16(b) to extend the due date for amendment of pleadings.
Rule 15 provides that leave to amend shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). "This policy is to be applied with extreme liberality." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (internal quotation marks and citation omitted).
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 amendment, etc. -- the leave sought should, as the rules require, be "freely given."
Foman v. Davis, 371 U.S. 178, 182 (1962). Of the foregoing factors, the "prejudice to the opposing party . . . carries the greatest weight." Eminence Capital, 316 F.3d at 1052.
Defendant argues that this action will be unduly delayed and Defendant will be prejudiced if leave to amend is granted because Defendant has already filed and fully briefed a summary judgment motion and because the amendment would likely necessitate more pleading, discovery and briefing. This argument is unpersuasive because Defendant could have avoided the delay and the associated cost if it had forthrightly responded to Plaintiff's discovery in the first place. In addition, the argument is overstated. Defendant does not dispute that its counsel in this action also represented it in the two trials where Plaintiff learned the additional facts.
Pl.'s Mem. of P.&A. at 4.) Accordingly, while the new facts were new to Plaintiff, they are not new to Defendant. Defendant does not contend that the delay will cause any evidence to be lost or that any other harm to its ability to present its case will ensue. Its argument regarding undue delay and prejudice is therefore rejected.
Next, Defendant contends that the timing of Plaintiff's motion, after close of discovery and a fully-briefed summary judgment motion, shows that it was filed in bad faith. Although the timing is inconvenient for everyone in this case, Defendant presented no evidence of Plaintiff's bad faith. To the ...