The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO AMEND
Now before the Court is Plaintiff Michael E. Boyd's Motion for Leave to File a First Amended Complaint. ECF No. 16 ("Mot."); ECF No. 18 ("Reply"). Defendant Accuray, Inc. has 16 filed a limited opposition to the motion. ECF No. 17. Pursuant to Civil Local Rule 7-1(b), the 17
Court finds this matter suitable for determination without oral argument. Accordingly, the hearing 18 on the motion set for December 7, 2011, is hereby VACATED. The Case Management 19
Conference remains as set on December 7, 2011. The Courtroom Deputy has already reminded the 20 parties that their Joint Case Management Statement was due on November 30, 2011. Defendant 21 filed its case management statement on December 6, 2011. ECF No. 23. Plaintiff shall file his 22 case management statement no later than 9:00 a.m. on December 7, 2011. 23
After considering the parties' submissions and the relevant case law, the Court GRANTS the motion IN PART and DENIES it IN PART. 25
Plaintiff filed his original complaint, in pro per, on April 5, 2011. ECF No. 1. The original complaint asserts that Plaintiff's employer, Accuray, Inc. unlawfully retaliated against him for 28 engaging in protected activity under the following five statutes: (1) opposing national origin employment discrimination under Title VII, 42 U.S.C. § 2000e-5; (2) exercising his rights under 2 the Fair Labor Standards Act, 29 U.S.C. § 207; (3) whistleblowing under the Sarbanes-Oxley Act, 3 18 U.S.C. § 1514A; (4) whistleblowing under the False Claims Act, 31 U.S.C. § 3730(h); and (5) 4 exercising his rights under the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 651 et 5 seq.. Plaintiff acknowledges he did not request a jury trial in the complaint. Mot. 2. The civil 6 cover sheet has the "NO" box checked in the "jury demand" section, denoting that a jury was not 7 demanded in the complaint. See ECF No. 1-1. Plaintiff served the original complaint on April 15, 8 2011. ECF No. 5. Defendant filed and served its answer on May 6, 2011. ECF No. 4. 9
On August 2, 2011, Mr. Westreich substituted as counsel for Plaintiff. ECF No. 11.
On August 31, 2011, Defendant's counsel sent a draft joint case management statement to Plaintiff's counsel. See McMahon Decl. ¶ 7. On September 6, 2011 -- the day before the statement was due -- Plaintiff's counsel sent a redlined "proposed revision" to Defendant's draft case 13 management statement, which changed Defendant's proposed language as follows: "Defendant 14 estimates a 4 6 6-8 day jury trial, exclusive of time for jury selection and deliberation."*fn1 Suppl. 15
Westreich Decl. ¶ 6. Later that day, Plaintiff suggested two more changes: "Defendant The Parties 16 estimates a 6-8 day jury trial, exclusive of time for jury selection and deliberation." Id. ¶ 8. On 17 "parties estimate a 6-8 day jury trial, exclusive of time for jury selection and deliberation." ECF 19
On September 14, 2011, the Court held a case management conference. At the conference, Plaintiff informed the Court of his intention either to file a first amended complaint by stipulation 22 or to file a motion for leave to amend by October 7, 2011. See Transcript, ECF No. 21, at 2-3. 23
Also at the conference, Defendant asserted that "Mr. Boyd was represented by counsel during the 24 period of time where he should have demanded a jury trial. He did not. . . . Things like that I can't 25 stipulate to. . . ." Id. at 4. 26 27
September 7, 2011, the parties filed their joint case management statement, which stated that the 18 No. 12, at 7. 20 schedule set at the case management conference and noting that the "JURY TRIAL DATE is 3 August 6, 2012 . . . ." ECF No. 15. On October 28, 2011, Defendant filed an objection to the 4 reference of a "jury trial" in the Court's September 14, 2011 Case Management Order. ECF No. 5
Plaintiff filed the instant motion for leave to amend on October 7, 2011. ECF No. 16. The proposed first amended complaint contains the same five claims as the original complaint, albeit in 8 a different order. ECF No. 16-2. Plaintiff's attorney states that leave to amend is sought "solely 9 for the purpose of conforming the pleading to normal pleading practice, without adding any parties 10 or claims." Mot. 2. On October 21, 2011, Defendant filed its limited ...