Stewart v. Chick-Fil-A, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Lindsey Stewart, Case No.: 19cv1780-CAB-BGS 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO TAKE LEAVE TO AMEND UNDER FRCP 15(A)(1) 14 Chick-Fil-A, et al, [Doc. No. 54] 15 Defendants. 16 On September 17, 2019, Plaintiff Lindsey Stewart (“Plaintiff”), proceeding pro se, 17 filed a complaint against Danny Putnam, Becky Putnam, 3 Little Cows, Inc., dba Chick- 18 Fil-A (“3 Little Cows”), and Chick-Fil-A, Inc (the Franchisor), for employment 19 discrimination. [Doc. No. 1.] On November 6, 2019, Defendants filed motions to 20 dismiss and strike the original complaint. [Doc. Nos. 5 and 7.] On January 17, 2020, this 21 Court issued an order granting the motions to dismiss the original complaint with leave to 22 amend. [Doc. No. 21.] 23 On February 21, 2020, Plaintiff filed a First Amended Complaint (“FAC”). [Doc. 24 No. 22.] On March 12, 2020, Defendants Danny Putnam and 3 Little Cows filed a 25 motion to dismiss and strike the FAC. [Doc. No. 28.] On May 15, 2020, rather than 26 filing an opposition to Defendant’s motion, Plaintiff filed a motion to amend. [Doc. No. 27 37.] On June 15, 2020, this Court issued an order granting in part the motion to dismiss, 28 1 denying the motion to strike, and denying Plaintiff’s motion to amend (hereinafter the 2 “June 15 Order”). [Doc. No. 40.] 3 In the June 15 Order, the Court dismissed Plaintiff’s gender discrimination, sexual 4 harassment, and age discrimination claims without leave to amend. [Doc. No. 40 at 3-5.] 5 The Court also made clear that this case would proceed only as to the fourth cause of 6 action for retaliation, and only against Defendant 3 Little Cows. [Doc. No. 40 at 7.] 7 Finally, the Court ordered Defendant 3 Little Cows to answer the FAC, as amended by 8 the June 15 Order. Id. 9 On July 6, 2020, Defendant 3 Little Cows filed an answer to the FAC, as amended 10 by the June 15 Order. [Doc. No. 42.] On September 1, 2020, Magistrate Judge Butcher 11 held an ENE and CMC [Doc. No. 51]. On September 4, 2020, Magistrate Judge Butcher 12 issued a Scheduling Order. [Doc. No. 52.] Pursuant to the Scheduling Order, all fact 13 discovery must be completed by February 5, 2021. [Doc. No. 52 at 3.] 14 On October 2, 2020, Plaintiff filed a Motion to take leave to amend under FRCP 15 15(a)(1). [Doc. No. 54.] On October 22, 2020, Defendant filed an opposition to 16 Plaintiff’s motion. [Doc. No. 55.] No reply has been filed. For the reasons set forth 17 below, the motion is DENIED. 18 LEGAL STANDARD 19 Federal Rule of Civil Procedure 15 provides that a party may amend its pleading 20 once as a matter of course within (1) 21 days after serving the pleading or (2) 21 days 21 after the earlier of service of a responsive pleading or service of a Rule 12(b) motion. 22 FED. R. CIV. PRO. 15. Otherwise, “a party may amend its pleading only with the 23 opposing party's written consent or the court's leave,” though the court “should freely 24 give leave when justice so requires.” Id. In Lockheed Martin Corp. v. Network Solutions, 25 Inc., the Ninth Circuit stated that leave to amend should be freely given absent “(1) bad 26 faith on the part of the plaintiffs; (2) undue delay; (3) prejudice to the opposing party; and 27 (4) futility of the proposed amendment.” 194 F.3d 980, 986 (9th Cir.1999). These factors 28 do not “merit equal weight,” and “it is the consideration of prejudice to the opposing 1 party that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 2 1048, 1052 (9th Cir.2003). “Absent prejudice, or a strong showing of any of the 3 remaining [ ] factors, there exists a presumption under Rule 15(a) in favor of granting 4 leave to amend.” Id. (original emphasis). 5 DISCUSSION 6 Plaintiff seeks leave to amend her FAC to again add Chick-fil-A, Inc. (CFA) as a 7 corporate entity, and to add new causes of action for (1) Wrongful Termination in 8 Violation of Public Policy; (2) Failure to Prevent Discrimination, Harassment, and 9 Retaliation of FEHA; and (3) Failure to Investigate Work Place Sexual Harassment 10 Complaints. [Doc. No. 54 at 7:22-26.] Plaintiff’s motion fails because it is procedurally 11 and substantively deficient. 12 First, the motion is procedurally deficient because Plaintiff does not attach a 13 separate version of the proposed amended pleading showing how “through redlining, 14 underlining, strikeouts, or other similarly effective typographical methods” the proposed 15 amended complaint differs from the operative pleading. CivLR 15.1(b). 16 Second, Plaintiff’s motion is prejudicial because it would unduly delay the 17 litigation. Discovery cutoff is set for February 5, 2021. [Doc. No. 52 at 3:5.] If Plaintiff 18 is allowed to amend, Defendant CFA would have to be served again, respond to the 19 complaint, and conduct its discovery. Both defendants would inevitably bring further 20 motions to dismiss (see below), and both would have to conduct further discovery. This 21 will cause the discovery cutoff and other dates to be continued for months if not years. 22 Given that this case was filed more than a year ago, any further delay would be 23 prejudicial. See Solomon v. North American Life & Cas. Ins. Co., 151 F.3d 1132, 1139 24 (9th Cir. 1998)(denying leave to amend on eve of discovery cutoff). 25 In addition, Plaintiff’s proposed amended complaint continues to fail to cure 26 deficiencies previously identified by this court. First, the proposed amended complaint 27 fails to identify what claims are brought against which defendant, including the alleged 28 basis of her claim against each defendant. Second, Plaintiff presents additional causes of 1 action that are not cognizable. Plaintiff’s proposed second cause of action asserts that 2 “Defendant failed to take reasonable steps to prevent harassment and discrimination.” 3 [Doc. No. 54 at 19:3– 4.] But Plaintiff continues to not allege that she herself was 4 harassed or discriminated, does not present facts showing that Defendant failed to prevent 5 retaliation, and does not say how she was harmed, all of which are essential elements of 6 her claim. See Lelaind v. City and County of San Francisco, 576 F.Supp.2d 1079, 1103 7 (N.D. Cal. 2008) (“When a plaintiff seeks to recover damages based on a claim of failure 8 to prevent discrimination or harassment she must show three essential elements: 1) 9 plaintiff was subjected to discrimination, harassment or retaliation; 2) defendant failed to 10 take all reasonable steps to prevent discrimination, harassment or retaliation; and 3) this 11 failure caused plaintiff to suffer injury, damage, loss or harm.”). In addition, “courts have 12 required a finding of actual discrimination or harassment under FEHA before a plaintiff 13 may prevail under section 12940, subdivision (k).” Dickson v. Burk Williams, Inc., 234 14 Cal.App.4th 1308, 1314 (2015). This Court has already dismissed Plaintiff’s sexual 15 harassment claim with prejudice. [Doc. No. 40 at 4:18–10.] Therefore, Plaintiff cannot 16 now establish that Defendant failed to prevent harassment because it is derivative of a 17 harassment claim. 18 In addition, Plaintiff’s third cause of action is futile because it is not a cognizable 19 claim. Plaintiff calls this “Failure to Provide Required Mechanism in the Complaint 20 Process to Report Sexual Harassment.” [Doc. No. 54 at 20.] Government Code section 21 12940(k)(4)(a–f), (5), as Plaintiff puts it, is not a discernable code section. To the extent 22 Plaintiff is referring to section 12940(k), this claim fails for the reasons set forth above, 23 particularly regarding Plaintiff not being harmed. To the extent Plaintiff refers to section 24 12950, there is no cause of action arising from that section. See Cal. Gov’t Code § 25 12950(f) (“[A] claim that the information sheet or information required to be distributed . 26 . . shall not in and of itself result in the liability of any employer to any present or formal 27 employee . . . in any action alleging sexual harassment.”) Therefore, there is no claim 28 under section 12950. 1 Given that Plaintiff's proposed amendments fail to cure deficiencies previously 2 ||identified by this Court and/or are not cognizable, leave to amend would be futile. 3 Finally, Defendant requests that the Court issue an Order to Show Cause (“OSC’’) 4 to Why Plaintiff's actions do not violate Rule 11(b) because she has repeatedly filed 5 || frivolous, baseless papers. [Doc. No. 55 at 9.] Given Plaintiff's pro se status, the Court 6 || declines, at this time, to issue an OSC. Plaintiff is warned however, that any further 7 || attempts to amend the complaint or otherwise delay the litigation with frivolous filings 8 result in Rule 11 sanctions. 9 CONCLUSION 10 For the reasons set forth above, the motion to take leave to amend under FRCP 11 |] 15(a)C.) is DENIED. 12 IT IS SO ORDERED. 13 Dated: November 3, 2020 ( é XK Hon. Cathy Ann Bencivengo 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28