Todd Fisher v. Osmose Utilities Services, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TODD FISHER, individually and on behalf Case No. 1:18-cv-01704-NONE-EPG of all others similarly situated, 12 ORDER GRANTING PLAINTIFF’S MOTION Plaintiff, TO AMEND AND MODIFYING 13 SCHEDULING ORDER v. 14 (ECF No. 18) OSMOSE UTILITIES SERVICES, INC., 15 Defendant. 16 17 Before the Court is Plaintiff’s motion to amend the complaint. (ECF No. 18.) On February 18 28, 2020, the motion came before the court for hearing. (ECF No. 26.) Adrian Bacon appeared on 19 behalf of Plaintiff and Natalie Fujikawa appeared on behalf of Defendant. Having considered the 20 parties’ briefing and oral arguments, the court will grant Plaintiff’s motion to amend, and 21 modifies the schedule order as set forth herein. 22 I. BACKGROUND 23 Plaintiff filed the complaint initiating this action in the Tulare County Superior Court on 24 November 5, 2018. (ECF No. 1-2 at 1.) The complaint alleges wage and hour violations under 25 California law against Defendant on behalf of Plaintiff and a putative class “of all other persons 26 employed directly by Defendant who were not paid wages pursuant to California law prior and 27 subsequent to the date this action was filed.” (ECF No. 1-2 at 3.) Specifically, Plaintiff alleges 28 1 class claims for meal and rest breaks, failure to provide accurate wage statements, failure to pay 2 all wages owed upon termination, and unfair business practices. 3 On December 12, 2018, Defendant filed its answer in Tulare Superior Court (see ECF No. 4 1-3), and on December 13, 2018, Defendant removed the action to federal court on the basis of 5 the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2, (5) (see ECF No. 1). 6 On March 6, 2019, the parties filed their Joint Scheduling Report. In the report, Plaintiff 7 stated: “Plaintiff has yet to amend the complaint to add PAGA allegations but plans to do so 8 subject to Defendant’s agreement to allow Plaintiff leave to file their First Amended Complaint,” 9 and “Plaintiff anticipates amending the complaint to add a claim under the Private Attorney 10 General’s Act, Cal. Labor Code §§ 2698 et. seq., now that the administrative prerequisites have 11 been met. Plaintiff will endeavor to do so by stipulation.” (ECF No. 7 at 1, 3.) 12 The Court held a scheduling conference on March 14, 2019 (ECF No. 10), and on March 13 21, 2019, the Court issued its Class Action Scheduling Conference Order (ECF No. 11). The 14 Court did not set a deadline for amendment to the parties’ pleadings, noting only that the filing of 15 motions or stipulations seeking leave to amend the pleadings “does not imply good cause to 16 modify the existing schedule,” and that “any request for amendment under Fed R. Civ. P. 15(a) 17 must not be: (1) prejudicial to the opposing party; (2) the product of undue delay; (3) proposed in 18 bad faith; or (4) futile.” (ECF No. 11 at 2 (citation omitted).) 19 On November 8, 2019, the parties filed a mid-discovery scheduling report in which the 20 parties proposed a revised discovery schedule for the case. (ECF No. 15.) The report noted: 21 “Plaintiff has yet to amend the complaint to add PAGA allegations but plans to do so. Defendant 22 will not stipulate to an amendment at this time, but anticipates the issue arising as part of 23 mediation, most likely in January 2020.” (ECF No. 15 at 1-2; see id. at 3.) 24 Mediation did not occur in January 2020,1 and on January 23, 2020, Plaintiff filed a 25 motion to amend the complaint seeking to add PAGA claims. (ECF No. 18.) 26 //// 27 //// 28 1 Mediation is scheduled for March 5, 2020. 1 II. MOTION TO AMEND 2 “A party may amend its pleading once as a matter of course within: (A) 21 days after 3 serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after 4 service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), 5 whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading 6 only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 7 Because more than twenty-one days have passed since Defendant served its answer, and 8 Defendant has declined to consent to Plaintiff’s proposed amendment, Plaintiff may amend his 9 complaint only with leave of the Court. 10 “The court should freely give leave [to amend] when justice so requires.” Fed. R. Civ. 11 15(a)(2). However, “[l]iberality in granting a plaintiff leave to amend is subject to the 12 qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad 13 faith, and is not futile.” Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999). The court may also 14 “consider the factor of undue delay,” but undue delay, by itself, “is insufficient to justify denying 15 a motion to amend.” Id. 16 As noted, Plaintiff moves for leave to amend his complaint to add a PAGA claim. 17 Defendant opposes the motion, contending (1) amendment would cause undue prejudice to 18 defendant, (2) amendment would be futile because the PAGA claim is barred by the statute of 19 limitations, and (3) leave to amend should be denied based on undue delay and as a bad faith 20 attempt to increase the cost of litigation. 21 1. Claim of undue prejudice to Defendant. 22 “Prejudice to the opposing party is the most important factor” to consider in determining 23 whether to grant leave to amend. Jackson v. Bank of Haw., 902 F.3d 1385, 1397 (9th Cir. 1990) 24 (citing Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 330–31 (1971)). “The party 25 opposing leave to amend bears the burden of showing prejudice.” Serpa v. SBC Telecomms., 318 26 F. Supp. 2d 865, 870 (N.D. Cal. 2004) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 27 187 (9th Cir. 1987)); see Clarke v. Upton, 703 F. Supp. 2d 1037, 1041 (E.D. Cal. 2010); see also 28 Alzheimer’s Inst. of Am. v. Elan Corp., 274 F.R.D. 272, 276 (N.D. Cal. 2011). “Absent prejudice, 1 there is a presumption under Rule 15(a) in favor of granting leave to amend.” Serpa, 318 F. Supp. 2 2d at 870 (citing Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). 3 Defendant contends that it would be unduly prejudiced by the proposed amendment 4 because the addition of a PAGA claim would increase the discovery required to defend against 5 Plaintiff’s claims and adding a PAGA claim “at this stage would initiate an entirely new phase of 6 discovery and motion practice, causing substantial and unfair prejudice to Osmose.” (ECF No. 23 7 at 5.) During the February 28, 2020, hearing, Defendant also claimed that the “prejudice is 8 extreme” because there is a completely different standard that applies to a PAGA claim, as 9 opposed to the claims in the initial complaint; that Defendant would have taken a different 10 approach in the case had there been a PAGA claim; and that the scope and manner of discovery 11 would have been different. However, Defendant also admitted during the hearing that it has not 12 yet provided any documents or other production in response to Plaintiff’s discovery requests2 and 13 has not yet itself sought any discovery from Plaintiff. Moreover, Defendant was on notice, since 14 at least March 6, 2019, that Plaintiff intended to amend the complaint to add a PAGA claim. 15 The Court finds, under the circumstances of this case, that Defendant has failed to 16 demonstrate that it will be unduly prejudiced by the proposed amendment to add a PAGA claim. 17 2. Claim that amendment would be futile. 18 Defendant contends that Plaintiff’s motion to amend should be denied on the basis of 19 futility because the one-year statute of limitations for PAGA claims has expired and the claim 20 does not relate back to the date this action was filed. 21 “An amendment to a pleading relates back to the date of the original pleading when . . . 22 the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence 23 set out—or attempted to be set out—in the original pleading . . . .” Fed. R. Civ. P. 15(c)(1). In 24 applying this standard, “[t]he court is to determine whether the amendment is transactionally 25 related to the original pleading.” Martell v. Trilogy Ltd., 872 F.2d 322, 324 (9th Cir. 1989). Thus, 26 “[w]hen a plaintiff seeks to amend a complaint to state a new claim against an original 27 2 Plaintiff apparently served discovery requests on Defendant more than six months ago. Defendant has yet to respond to those requests but pointed out during the hearing that approximately three months ago, the parties agreed 28 to a stay of discovery pending mediation. 1 defendant . . . [the court] consider[s] whether the original and amended pleadings share a 2 common core of operative facts so that the adverse party has fair notice of the transaction, 3 occurrence, or conduct called into question.” Id. at 325 (citations omitted). 4 Here, the factual allegations of the original complaint (ECF No. 1-2) and the proposed 5 amended complaint (ECF No. 18-1) are identical, or nearly identical. Thus, both the complaint 6 and the proposed amended complaint share a common core of operative facts such that Defendant 7 has fair notice of the conduct called into question by the proposed amendment to add the PAGA 8 claim. 9 Defendant does not deny that there is a common core of operative facts between the 10 complaint and the proposed amended complaint. (See ECF No. 23 at 3-4.) Instead, Defendant 11 contends that relation back does not apply because Plaintiff failed to timely amend his complaint 12 to add a PAGA claim. (Id.) Although timeliness of a proposed amendment is relevant for 13 determining whether to grant leave to amend, and will be discussed below, timeliness is not a 14 factor that the Court considers in determining whether a proposed amendment relates back to the 15 original complaint. See Fed. R. Civ. P. 15(c)(1); Martell, 872 F.2d at 324-25. 16 The Court finds that the original complaint and the proposed amended complaint share a 17 common core of operative facts so that Defendant had fair notice of the conduct called into 18 question. Accordingly, the proposed amendment to add the PAGA claim relates back to the 19 original complaint and amendment would not be futile. 20 3. Claim of undue delay and bad faith. 21 Defendant also contends that leave to amend should be denied because Plaintiff unduly 22 delayed in seeking to amend and because Plaintiff’s motion is a bad faith attempt to increase 23 litigation costs. (ECF No. 23 at 4.) 24 As noted above, Plaintiff notified Defendant, and the Court, of his intention to amend the 25 complaint to add a PAGA claim in March 2019, which was only a few months after this action 26 was removed to federal court. Plaintiff has consistently stated since then his intent to amend to 27 add a PAGA claim, including in a joint status report filed November 8, 2019. Plaintiff’s counsel 28 reached out to Defendant’s counsel in November 2019 to seek a stipulation to allow amendment, 1 but Defendant refused. Plaintiff admits that there has been a delay in seeking to amend and that 2 Plaintiff could have sought to amend sooner because the PAGA claim was exhausted and could 3 have been added as early as February 2019. Plaintiff represented that this delay was not, however, 4 in bad faith but was instead the result of a calendaring failure on the part of Plaintiff’s counsel. 5 The Court is concerned about this long delay in seeking to amend the complaint to add a 6 PAGA claim. However, the Court does not find this delay sufficient, by itself, to justify denying 7 Plaintiff’s motion to amend and, further, does not find that this delay was the result of bad faith 8 on the part of Plaintiff. See Bowles, 198 F.3d at 757 (Undue delay, by itself, “is insufficient to 9 justify denying a motion to amend.”). 10 The Court will grant Plaintiff’s motion to amend. 11 III. MODIFICATION OF SCHEDULE 12 As discussed during the February 28, 2020, status conference, the Class Action 13 Scheduling Conference Order (ECF No. 11) is modified as follows: 14 Deadline/Cutoff Date 15 Fed. R. Civ. P. 26(a)(1) disclosure deadline April 1, 2020 Non-expert discovery cutoff August 17, 2020 16 Expert witness disclosure deadline May 15, 2020 17 Rebuttal expert witness disclosure deadline June 14, 2020 Expert discovery cutoff September 16, 2020 18 Motion for class certification deadline October 30, 2020 19 20 IV. CONCLUSION 21 For the reasons set forth above, IT IS ORDERED: 22 1. Plaintiff’s motion to amend (ECF No. 18) is granted. Plaintiff shall file his First 23 Amended Complaint within 14 days of the date of this order; 24 2. The Class Action Scheduling Conference Order (ECF No. 11) is modified as set 25 forth above; and 26 3. A telephonic status conference is set for June 22, 2020, at 10:00 a.m. before 27 Magistrate Judge Erica P. Grosjean. To participate telephonically, each party is directed to use the 28 following dial-in number and passcode: 1-888-251-2909; passcode 1024453. The parties are 1 | directed to file a joint status report one full week prior to the conference and email a copy of 2 | same, in Word format, to epgorders @caed.uscourts.gov for the Judge’s review. 3 4 IT IS SO ORDERED. 5] Dated: _ March 4, 2020 [Jee ey 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28