The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT*fn1
On August 19, 2010, Plaintiff filed a motion under Federal Rule of Civil Procedure 15(a)(2), in which he seeks leave to file a first amended complaint to add a claim under Title VII of the Civil Rights act of 1964, 42 U.S.C. section 2000e et seq. ("Title VII"), against Defendant JOS. A. Bank Clothiers, Inc. ("Defendant"). (Docket No. 34.) Defendant opposes the motion.
Plaintiff, a former employee of Defendant, alleges he was denied promotional opportunities with Defendant on account of his African-American race. (Pl.'s Compl. ¶ 11.) On August 28, 2009, Plaintiff filed discrimination claims with both the Equal Employment Opportunity Commission ("EEOC") and the California Department of Fair Employment and Housing ("DFEH"). (Pl.'s Compl. Exs. A, B.) The EEOC sent Plaintiff a "Notice of Right to Sue" letter dated October 25, 2009, in which Plaintiff was informed that his "lawsuit under Title VII . . . must be filed in federal or state court WITHIN 90 DAYS" of his receipt of the notice. Id. Ex. A (emphasis in original).
Plaintiff filed the instant lawsuit against Defendant in federal district court on November 12, 2009.*fn2 Plaintiff alleges two claims in his Complaint: 1) violation of 42 U.S.C. section 1981 ("section 1981"), and 2) violation of the California Fair Employment and Housing Act, California Government Code section 12940, et seq. ("CFEH claim"). (Pl.'s Compl. ¶¶ 26-32.)
Under Federal Rule of Civil Procedure 15(a)(2) ("Rule 15(a)(2)"), "a party may amend its pleading only with the opposing party's written consent or the court's leave. Fed. R. Civ. P. 15(a)(2) (emphasis added). Rule 15(a)(2) prescribes that "[t]he court should freely give leave when justice so requires." Id. "This [leave] policy is 'to be applied with extreme liberality.'" Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (internal citations omitted). "Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citing United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). "Delay alone is insufficient to justify denial of leave to amend; the party opposing amendment must also show that the amendment sought is futile, in bad faith or will cause undue prejudice to the opposing party." Jones v. Bates, 127 F.3d 839, 847 n.8 (9th Cir. 1997).
Defendant argues leave to amend should be denied because Plaintiff unduly delayed in seeking the amendment, since he could have sought an amendment at least ten months earlier in this case. "Relevant to evaluating the delay issue is whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990).
Plaintiff does not explain why he has delayed approximately ten months in filing his motion for the amendment. Therefore, his delay "is . . . inexplicable and unjustified." Id. However, since the parties' joint status report indicated they have only conducted minimal discovery, the delay factor does not weigh heavily against Plaintiff's motion.
Defendant also argues that Plaintiff's undue delay is itself evidence of bad faith. Although Plaintiff's delay is unexplained, Defendant has not shown that Plaintiff's delay in seeking the amendment constitutes bad faith.
Further, Defendant argues it will suffer prejudice if the Title VII claim is added. Specifically, Defendant argues that a disparate impact liability theory under Title VII will require Defendant to research and develop new legal defenses almost a year after Plaintiff first commenced this litigation. However, Defendant has not shown it will be prejudiced in light of the parties' indication in their Joint Status Report that this case is in an early litigation stage.
Lastly, Defendant argues the motion should be denied because amendment would be futile. Specifically, Defendant argues the Title VII claim is time-barred because Plaintiff seeks to add the claim approximately ten months after he received his Right to Sue letter, which is well beyond the ninety-day time limit prescribed in that letter. Plaintiff failed to respond to this argument. However, since Defendant has not discussed whether the claim could relate back to the filing of the original pleading, Defendant has not sustained its burden of showing that amendment would be futile.
On balance, the factors weigh in favor of granting Plaintiff's motion. Therefore, Plaintiff is granted leave to amend his Complaint to add a claim under Title VII, provided that his amended complaint is filed ...