United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF ROBERT HEATH'S MOTION FOR
LEAVE TO FILE SECOND AMENDED COMPLAINT [RE: ECF 65]
LABSON FREEMAN United States District Judge
age discrimination action, Plaintiff Robert Heath moves to
file a second amended complaint to re-assert his claim for
age discrimination under the California Fair Employment and
Housing Act (FEHA) as a Rule 23 class claim. Mot., ECF 65.
For the reasons stated below, the Court DENIES Heath’s
April 2015, Heath filed his original complaint asserting age
discrimination under the federal Age Discrimination in
Employment Act (ADEA) and FEHA. Compl., ECF 1. He pled both
claims on behalf of himself and a nationwide Rule 23 class.
Compl. ¶ 39. In addition, he asserted the ADEA claim as
a collective action. Compl. at 21 ¶ m.
2015, Defendant Google Inc. filed a motion to dismiss. ECF
16. In response, Heath filed a first amended complaint that
omitted any allegations concerning a Rule 23 class claim
under FEHA. FAC ¶¶ 51-52, ECF 18. The FAC also
joined Cheryl Fillikes as a plaintiff. FAC, ECF 18.
September 2015, the Court conducted an initial case
management conference, ECF 30, and thereafter, approved, as
amended, the parties' stipulated scheduling order, ECF
35. This order set January 11, 2016 as the last day to amend
pleadings or add parties except for good cause. Id.
December 2015, Plaintiffs filed a motion to continue the
deadlines in the scheduling order by 60 days, which Google
partially opposed. ECF 39. The Court granted the motion in
part and continued the deadline to file amended pleadings to
March 11, 2016 absent good cause. ECF 41 at 2.
February 2016, the parties filed a stipulated request to
continue the deadlines associated with briefing a motion for
conditional certification but they did not seek to continue
the deadline to file an amended pleading. ECF 52. The Court
held a telephone conference with the parties to discuss its
concerns with the proposed stipulation, and after the parties
failed to file any discovery disputes or a newly proposed
schedule taking into account the Court's comments, the
Court denied the request. ECF 63.
March 25, 2016, Heath's counsel emailed Google seeking a
stipulation to file a second amended complaint. Exh. 1 to
Mclnerney Decl. to Opp., ECF 68-1 . That e-mail stated that
Heath intended to file the motion seeking leave to file a
second amended complaint that weekend. Id.
April 25, 2016, one month after Heath sought Google's
agreement to file a second amended complaint, and 45 days
after the March 11, 2016 deadline to file amended pleadings
absent good cause, Heath filed the instant motion. ECF 65.
The proposed SAC does not include amended allegations on
behalf of Fillikes. Exh. A to Patton Decl. to Mot., ECF 65-1.
However, Fillikes does not oppose Heath's motion to file
a SAC. ECF 66.
parties appear to disagree over the appropriate legal
standard governing this motion. Heath appears to argue that
his request for leave to file a second amended complaint
should be governed by Fed.R.Civ.P. 15. Mot. 4, ECF 65. Google
argues that Fed.R.Civ.P. 16 provides the applicable legal
standard. Opp. 4, ECF 67.
general, a motion to amend is subject to Rule 15, which
provides that “[t]he court should freely give leave [to
amend] when justice so requires.” Fed.R.Civ.P.
15(a)(2). However, “[o]nce the district court ha[s]
filed a pretrial scheduling order pursuant to Federal Rule of
Civil Procedure 16[, ] which establishe[s] a timetable for
amending pleadings[, ] that rule’s standards control[
].” Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607-08 (9th Cir.1992).
instant motion is governed by Rule 16 because the Court
issued an initial scheduling order in September 2015, ECF 35,
and modified the dates in December 2015, ECF 42. Both orders
explicitly specified that pleadings may not be amended beyond
a certain date except for good cause. ECF 35, 42. The
December 2015 scheduling order set the last day to amend
pleadings to March 11, 2016. Id. ...