The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER MODIFYING THE SCHEDULING ORDER AND PERMITTING PLAINTIFF TO FILE AN AMENDED COMPLAINT (Doc. No. 49.)
Presently before the Court is Plaintiff Daniel J. Tautges' (Plaintiff or Tautges) motion for an order modifying the scheduling order and permitting plaintiff to file an amended complaint. (Doc. No. 49 (Mot. to Amend).) Also before the Court is Defendant Global Datacenter Management, Inc.'s (Defendant or Global Datacenter) response in opposition. (Doc. No. 52 (Opp'n).) For the reasons stated below, the Court DENIES Plaintiff's motion.
This case is past the summary judgment stage, and for the purposes of this motion, only a broad history is necessary to orient the parties. Plaintiff filed a first amended complaint (FAC) on December 14, 2009. (Doc. No. 26 (FAC).) The FAC alleged claims for breach of contract, breach of statutory duty, and defamation. Defendant motioned for summary judgment three months later.
(Doc. No. 31.) After the dust settled, the FAC was left with two causes of action, breach of contract and breach of statutory duty. (Doc. No. 50.)
In the meantime, Plaintiff had filed the present motion for an order modifying the scheduling order and permitting plaintiff to file an amended complaint. The Court had originally set a deadline of July 17, 2009, for any party to amend its pleadings and had extended the deadline to November 27, 2009, for Tautges to amend a "wrongful termination" claim. (Doc. No. 21.) Plaintiff now wishes to file a second amended complaint (SAC) that includes a wrongful termination claim.
If there is a deadline for amendment set by a scheduling order, and the deadline has passed, an amendment to the pleadings requires that the scheduling order be modified. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). The scheduling order may be modified by leave of court on a showing of good cause and with the judge's consent. Fed. R. Civ. P 16(b)(4).
Leave to amend should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). But while the rule should be interpreted extremely liberally, it should not be granted automatically. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). A trial court may deny such a motion if permitting an amendment "would prejudice the opposing party, produce an undue delay in the litigation, or result in futility for lack of merit." Id. A proposed amendment is futile if no set of facts can be proved under amendment to pleadings that would constitute a valid and sufficient claim. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).
Plaintiff wishes to amend his first amended complaint to add a claim for wrongful termination. Plaintiff proposes that a recent California court of appeal case, Silguero v. Creteguard, 187 Cal.App.4th 60 (Cal. Ct. App. 2010), created a new basis for wrongful termination under California Business and Professions Code § 16600. And because this avenue was not available to Plaintiff when he filed the first amended complaint, Plaintiff requests leave to include this claim.
The Court has broad discretion to grant leave to amend. See Jackson, 902 F.2d at 1387. But leave should be denied where amendment would be futile. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). Whether amendment would be futile depends on whether Silguero actually provides a basis for wrongful termination under the facts of this case. If it does, the Court would inquire into any issues of prejudice or undue delay. If Silguero does not provide a basis for wrongful termination, amendment would be futile.
I. Silguero v. Creteguard
Silguero presented a question whether a terminated employee had a viable claim for wrongful termination in violation of public policy under Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980). The California Supreme Court held in Tameny that "although employers have the power to terminate employees at will, they may not terminate an employee for a reason that is contrary to public policy." Tameny, 27 Cal.3dat 178. One source of public policy is California Business and Professions Code § 16600. Section 16600 states that, with few exceptions, "every contract by which anyone is restrained from engaging in lawful profession, trade or business of any kind is to that extent void." Cal. Bus. & Prof. Code § 16600. And it "evinces a settled legislative policy in favor of open competition and employee mobility." Edwards v. Arthur Andersen LLP, 44 Cal.4th 937, 946 (2008). In VLS Systems, Inc. v. Unisen, ...