Plaintiff has filed a motion for leave to file a third amended complaint. After consideration of the parties' briefing, the court denies the motion.*fn1
On July 31, 2009, plaintiff filed a first amended complaint in San Francisco County Superior Court, alleging that plaintiff, an Armenian-American who was employed as a physician's assistant in two of defendants' hospitals, was subjected to sexual and ethnic comments from co-workers and supervisors. ECF No. 2 at 9 ¶¶ 11, 13. She also alleged that "primarily in 2008, Defendants, through its agents, harassed Plaintiff and subjected her to unwarranted accusations and discipline in response to her complaints about illegal harassment and treatment of patients by the surgeons." Id. at 10 ¶ 21. She continued that "[t]hroughout her tenure, Plaintiff has repeatedly complained to management employees, including Human Resources about behavior of surgeons that violated anti-discrimination laws and put patients at risk." Id. at 11 ¶ 24. In addition, she contended that she "repeatedly complained about issues regarding patient care particularly resulting from Dr. Kaplon's treatment of the patients and staff during surgery and of the failure to have an M.D. assist[ant] at all times as required by law." Id.
¶ 27. She included nine causes of action in the amended complaint: hostile work environment based on gender and national origin discrimination and harassment, 42 U.S.C. § 2000e; harassment and discrimination based on national origin, 42 U.S.C. § 1981; retaliation, 42 U.S.C. § 2000e-3(a); retaliation, 42 U.S.C. § 1981; wrongful termination in violation of public policy; intentional infliction of emotional distress; failure to provide adequate meal and rest periods, Cal. Labor Code §§ 226.7 and 512; interference with prospective economic relations; and defamation. Id. at 13-23.
The case was transferred to this district on October 23, 2009. ECF No. 14. Plaintiff filed a second amended complaint on February 16, 2010. ECF No. 19. It repeated the allegations of inappropriate remarks based on plaintiff's gender and ethnicity. Id. at 6-7 ¶¶ 13-16. It also alleged that in September 2007, plaintiff was given a verbal warning about a parking practice that others engaged in without reprimand and "five months later, after Plaintiff had made additional complaints about ethnic and sexual comments as well as patient care, Defendants first wrote up Plaintiff for the parking issue that occurred in September." Id. at 7 ¶
17. The complaint also repeated the contention that defendant and its agents harassed and disciplined plaintiff "in response to her complaints about illegal harassment and treatment of patients by surgeons." Id. ¶ 21. In addition, it alleged that "throughout her tenure, Plaintiff has repeatedly complained to management employees, including Human Resources about behavior of surgeons that . . . put patients at risk" and repeated the claim that plaintiff "repeatedly complained about issues regarding patient care particularly resulting from Dr. Kaplon's treatment of the patients and staff during surgery and of the failure to have an M.D. assist[ant] at all times as required by law." Id. at 8 ¶¶ 24, 27. She raised the same nine causes of action. Id. at 10-20.
On February 26, 2010, this court issued a pretrial scheduling order, providing that no amendments to pleadings would be permitted after June 2010 "except with leave of Court, good cause having been shown." ECF No. 20 at 1. It also set February 18, 2011 as the discovery cut-off, April 18, 2011 as the last hearing date for motions, and a final pretrial conference for June 20, 2011. Id. at 2-3.
Current counsel took over the case in July 2010 and additional counsel was associated in February 2011. ECF Nos. 22, 25. This court approved two stipulated modifications of the pretrial scheduling order, extending the deadlines for discovery and for motions and made minor modifications to the discovery portion of the scheduling order at plaintiff's behest, following a hearing in June. ECF No. 27, 30, 57.
Plaintiff filed the instant motion to amend the complaint on June 21, 2011.
Plaintiff seeks to amend the complaint to add a cause of action for retaliation under California Health and Safety Code § 1278.5, which allows a person to seek reinstatement, reimbursement for lost wages and work benefit, as well as attorney's fees from any health facility that discriminates or retaliates against the employee, if he or she has "presented a grievance, complaint or report to the facility" concerning "suspected unsafe patient care and conditions." The statute also establishes a rebuttable presumption that any adverse action taken against an employee within 120 days of such a report is retaliatory. Plaintiff also proposes to delete her claims for discrimination and retaliation on the basis of national origin/ethnicity. ECF No. 53-2 at 6 ¶ 18. She argues that under Federal Rule of Civil Procedure 15(a), leave to amend "shall be freely given when justice so requires" but that if the request is controlled by Rule 16(b), she has satisfied the rule's good cause standard by timely seeking to amend after she uncovered the basis of the claim during discovery. ECF No. 53-1 at 3-4.
Defendant counters that the Rule 16 standard applies because the pretrial scheduling order set a deadline of June 2010 for amendments to pleadings and that plaintiff did not act diligently to ascertain the basis of this claim. ECF No. 64 at 4-6.
Under Rule 16(b) of the Federal Rules of Civil Procedure, a pretrial scheduling order shall not be modified except upon a showing of good cause. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Only if the court determines that the party seeking amendment has shown good cause will it consider whether amendment is appropriate under Rule 15. Id. at 608; Hood v. Hartford Life and Accident Ins. Co., 567 F.Supp.2d 1221, 1224 (E.D. Cal. 2008).
In Johnson, the Ninth Circuit described Rule 16(b)'s good cause standard as focusing on "the diligence of the party seeking the amendment." It recognized that while "the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus is upon the moving party's reasons . . . If that party was not diligent, the inquiry should end." Id. at 609 (citation omitted); see also Ultimax Cement Manufacturing Corp. v. CTS Cement ...