United States District Court, S.D. California
ORDER ON MOTION TO REMAND AND MOTION TO AMEND [DOC.
NOS. 10, 11.]
CATHY ANN BENCIVENGO, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Abraham
Hudson's motion to remand [Doc. No. 11] and motion to
amend [Doc. No. 10]. The motions have been fully briefed and
the Court finds them suitable for determination on the papers
submitted and without oral argument in accordance with Civil
Local Rule 7.1(d)(1). For the following reasons, the motion
to remand is denied and the motion to amend is granted.
21, 2017, Plaintiff filed his original complaint in the
Superior Court of the State of California against Bank of
America Corporation (“BOA”) and Merrill Lynch,
Pierce, Fenner & Smith Incorporated (“Merrill
Lynch”) (collectively Defendants”) alleging seven
causes of action related to his employment by Defendants.
[Doc. No. 1-1 at 2-23 (“complaint”).] His factual
allegations, accepted as true, are as follows.
in October 2015, numerous coworkers of Plaintiff's made
defamatory statements about him and subjected him to a
hostile work environment. [Complaint at ¶¶ 20, 21.]
Plaintiff's supervisors, including Steve Kowalski,
ignored the discrimination and harassment occurring or
retaliated against him for complaining. [Id. at
¶¶ 28-32, 35.] Mr. Schoenle also retaliated against
Plaintiff when he complained about the working conditions.
[Id. at ¶¶ 42, 43, 45, 46.] After
resigning from his position, Plaintiff became aware that a
number of Defendant's employees had made defamatory
statements about him to members of his community.
[Id. at ¶¶ 53-55.]
on these allegations Plaintiff sued Defendants for breach of
oral contract, unlawful discrimination based on race and
religion, retaliation, failure to prevent discrimination,
constructive discharge and defamation. [Doc. No. 1-1.]
Plaintiff seeks general and punitive damages, attorneys'
fees, and earnings losses. [Doc. No. 1-1 at 22.]
21, 2017, Defendants removed this action to this Court
pursuant to the provisions of 28 U.S.C. §§ 1332(a),
1441(a) and 1446(b) [Doc. No. 1] and filed answers to the
complaint on the same day [Doc. Nos. 2, 2.] On October
5, 2017, Plaintiff filed both his motion to amend
[Doc. No. 10] to add Mr. Schoenle as a Defendant and motion
to remand [Doc. No. 11] based on lack of complete diversity
between the parties. Defendants filed their oppositions to
the motions [Doc. Nos. 13, 14] and Plaintiff filed his
replies [Doc. No. 15, 16]. In light of the relatedness of the
motions, the Court will consider them together.
Motion to Amend
seeks leave to amend his complaint to substitute Mr. Schoenle
for Defendant Doe 1. [Doc. No. 10.] Defendants oppose
Plaintiff's motion to amend arguing the filing does not
comport to the Federal Rules of Civil Procedure and that
amendment would be futile. [Doc. No. 13.]
(a) of the Federal Rule of Civil Procedure states that, after
the initial period for amendments as of right, pleadings may
only be amended by leave of court, which “[t]he court
shall freely give when justice so requires.”
Fed.R.Civ.P. 15(a)(2). Courts commonly use four factors to
determine the propriety of a motion for leave to amend: bad
faith, undue delay, prejudice to the opposing party, and
futility of amendment. Ditto v. McCurdy, 510 F.3d
1070, 1078-79 (9th Cir. 2007); Loehr v. Ventura Cnty.
Cmty. Coll. Dist., 743 F.2d 1310, 1319 (9th Cir. 1984);
Howey v. United States, 481 F.2d 1187, 1190 (9th
Cir. 1973). “When weighing these factors . . . all
inferences should be made in favor of granting the motion to
amend.” Hofstetter v. Chase Home Fin., LLC,
751 F.Supp.2d 1116, 1122 (N.D. Cal 2010) (citing Griggs
v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir.
Ninth Circuit has held that “it is the consideration of
prejudice to the opposing party that carries the greatest
weight.” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent
prejudice, or a strong showing of any of the remaining
Foman factors, there exists a presumption
under Rule 15(a) in favor of granting leave to amend.”
Id. Moreover, “once the defendant is in court
on a claim arising out of a particular transaction or set of
facts, he is not prejudiced if another claim, arising out of
the same facts, is added.” Sierra Club v.
Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988). While
futile amendments should not be permitted, an amendment
“is futile only if no set of facts can be proved under
the amendment to the pleadings that would constitute a valid
and sufficient claim or defense.” Miller v.
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988);
DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 188
(9th Cir. 1987) (citations omitted).
Plaintiff failed to comply with the Federal Rules filing
requirement, he submitted a draft of the first amended
complaint with his reply to the opposition to the motion for
leave to amend. Doc. No. 15-1 at 4-25.] The Court has
reviewed the proposed amended complaint and finds it
substantially similar to the original complaint, it simply
adds Mr. Schoenle as an individual defendant and inserts a
paragraph which describes his alleged part in this suit.
Moreover, Plaintiff asserts that the failure to comply with
the rules was simply the result of an oversight and his
attorney attests that Defendants had been furnished with a
copy of the amended complaint, on September 6, 2017, before
leave to amend was sought on October 5, 2017. [Doc. No. 15-1
at ¶ 4]. Therefore, even though the requirements of the
rules were not followed to the letter, the Court perceives no
prejudice to Defendants in allowing an amendment.
Defendants posit that Plaintiff is seeking to amend in an
attempt to destroy diversity, yet they provided no evidence
in support of this contention and Plaintiff denies the
assertion. As a consequence, the Court is unwilling to
conclude that Plaintiff is seeking amendment in bad fad
faith. Further, Plaintiff has filed his motion to amend 3
½ months after filing the original complaint, which
weighs in favor of granting leave to amend. Similarly,
considering the early stages of this litigation the Court
sees no reason to expect that the amendment will unduly delay
litigation. See AmericSourceBergen Corp v. Dialysist W.,
Inc.,465 F.3d 946, 951 (9th Cir. 2006) (“[A]
district court need not grant leave to amend where the
amendment (1) prejudices the other party; (2) is sought in
bad faith; (3) produces an undue delay in litigation; or (4)
is futile.”). As to whether amendment would be futile,
Defendants assert “the anticipated amendments would be
futile as they are barred by the relevant statute of
limitations and because Plaintiff failed to timely ...