Foster v. Bank of America, N.A.
Filing
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ORDER on Plaintiff's Motion to Amend (Doc.14): Denied. signed by Magistrate Judge Barbara A. McAuliffe on 4/18/2014. (Herman, H)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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YOLANDA FOSTER,
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ORDER ON PLAINTIFF’S MOTION TO
AMEND (Doc. 14)
Plaintiff,
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Case No. 1: 13-cv-1188-LJO-BAM
v.
BANK OF AMERICA, N.A., et al.,
Defendants.
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Plaintiff Yolanda Foster filed a motion to amend the complaint on February 5, 2014. (Doc.
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14.) Defendant Bank of America, National Association filed an opposition to the motion on February
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25, 2014. No reply was filed. The Court deemed the matter suitable for decision without oral
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argument pursuant to Local Rule 230(g) and vacated the hearing scheduled for March 14, 2014.
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Having considered the moving and opposition papers, and the entire file in this matter, the Court rules
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as follows.
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FACTUAL BACKGROUND
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In her complaint removed to this Court on July 30, 2013, plaintiff alleges that she was
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terminated from her employment with defendant on December 23, 2011. Plaintiff alleges she was on
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medical leave from April 12, 2010 until her termination. She alleges her termination was based on her
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medical leave and in violation of state law. Plaintiff alleges state law causes of action for (1) failure to
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engage in the interactive process to determine a reasonable accommodation for disability, (2) failure to
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make reasonable accommodation for disability, (3) discriminatory discharge based on a physical
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disability, (4) termination in violation of public policy, and (5) retaliation. Plaintiff seeks
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compensatory damages, interest on lost earnings, exemplary damages, attorneys’ fees, and costs of
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suit.
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In the motion for leave to amend, plaintiff seeks leave to amend to add a Sixth Cause of Action
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for “Injunctive Relief” and seeks to add the remedy of “Injunctive Relief” to the Prayer in each cause
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of action. Defendant opposes the request for leave to amend. Defendant contends that the time for
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request for leave to amend has passed. The Scheduling Order set the deadline to amend pleadings for
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January 31, 2014. Defendant also argues there is no good cause to modify the scheduling order.
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Defendant argues that even if good cause exists, the amendment would be futile, and therefore, should
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be denied.
ANALYSIS
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Modifying the Scheduling Order
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Pursuant to the Court’s Scheduling Order issued on December 2, 2013, the deadline to file any
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motion for leave to amend was January 31, 2014. Plaintiff filed her motion on February 5, 2014, after
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the deadline.
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Fed.R.Civ.P. 15(a) provides that after service of a responsive pleading, “a party may amend the
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party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be
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freely given when justice so requires.” Granting or denying leave to amend rests in the trial court’s
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sound discretion and will be reversed only for abuse of discretion. Swanson v. United States Forest
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Service, 87 F.3d 339, 343 (9th Cir. 1996). In exercising discretion, “a court must be guided by the
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underlying purpose of Rule 15 to facilitate decision on the merits rather than on the pleadings or
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technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).
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However, where a case management scheduling order pursuant to Rule 16 sets a deadline for
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amending pleadings and the deadline has passed, the liberal policy regarding amendment of pleadings
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no longer applies. To allow the amendment, the scheduling order must be modified which requires
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leave of court and a showing of “good cause.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th
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Cir. 2000), cert. denied, 533 U.S. 950 (2001).
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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the
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judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the
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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
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609 (9th Cir. 1992). The district court may modify the scheduling order “if it cannot reasonably be met
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despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the inquiry
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should end. Id.
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Here, plaintiff’s motion is untimely because it was filed after the Scheduling Order deadline.
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Johnson v. Mammoth Recreations, Inc., 975 F.2d at 608–609 (motions filed after the deadlines set in a
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scheduling order are untimely and may be denied solely on this ground). Plaintiff fails to argue or
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show good cause for modifying the Scheduling Order. Plaintiff requests leave to amend, but does not
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argue that plaintiff was diligent in attempting to meet the Scheduling Order deadlines or otherwise
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explain her failure to comply with the deadline. Accordingly, leave to amend is denied.
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Factors for Amendment
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While the Court need not reach the merits of plaintiff’s request, the Court considers, briefly,
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whether the amendment is meritorious. Ninth Circuit Court of Appeals has enumerated factors to
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consider on a motion to amend: (1) undue delay; (2) bad faith; (3) prejudice to the opponent; and/or
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(4) futility of the proposed amendment. Loehr v. Ventura County Community College District, 743
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F.2d 1310, 1319 (9th Cir. 1984).
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Defendant argues that the amendment would be futile. Defendant argues that the injunctive
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relief requested includes restraining Defendant from maintaining policies permitting harassment,
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discrimination, or retaliation related to disability; and affirmatively requiring Defendant to train its
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employees, post laws; and develop policies related to harassment, discrimination, or retaliation.
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Defendant argues that defendant no longer employs plaintiff, and she therefore lacks standing to seek
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the requested injunctive relief.
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Futility
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Denial of leave to file an amended complaint is appropriate where an amendment is futile.
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Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). A “proposed amendment is futile only if no
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set of facts can be proved under the amendment to the pleadings that would constitute a valid and
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sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). An
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amendment is futile when it lacks legal foundation. Shermoen v. United States, 982 F.2d 1312, 1319
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(9th Cir. 1992), cert. denied, 509 U.S. 903, 113 S.Ct. 2993 (1993); Johnson v. District 2 Marine
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Engineers Beneficial Assoc., 857 F.2d 514, 518 (9th Cir. 1988).
Plaintiff seeks leave to amend to add a claim for injunctive relief. An injunction is an equitable
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remedy. “The basis for injunctive relief (preliminary or permanent) in the federal courts has always
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been irreparable injury and the inadequacy of legal remedies.” Weinberger v. Romero–Barcelo, 456
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U.S. 305, 312, 102 S.Ct. 1798, 1803 (1982). Injunctive relief is “an extraordinary remedy that may
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only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural
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Resources Defense Council, Inc., 555 U.S. at 22, 129 S.Ct. at 375–376. There must be a substantial
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likelihood that the relief sought, if granted, will redress the plaintiff’s injury. Lujan v. Defenders of
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Wildlife, 504 U.S. 555, 559–560, 112 S.Ct. 2130, 2136 (1992). The relief must redress plaintiff’s
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injury; it is not enough that a favorable judgment will benefit the public at large or punish defendant.
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Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107, 118 S.Ct. 1003, 1019 (1998).
Here, plaintiff has an adequate remedy at law. Monetary damages for termination of
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employment are generally an adequate remedy at law.
Further, plaintiff seeks prospective relief which will not redress any injury suffered by
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plaintiff. Plaintiff is no longer employed with defendant and does not seek reinstatement of
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employment. The proposed injunctive relief includes restraining Defendant from maintaining policies
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permitting harassment, discrimination, or retaliation related to disability; and affirmatively requiring
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Defendant to train its employees and post laws; and develop policies related to harassment,
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discrimination, or retaliation. None of the requested relief will remedy any injury to plaintiff because
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she is not employed with defendant and does not seek reinstatement such that she may be re-exposed
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to defendant’s policies. Therefore, injunctive relief will not redress plaintiff’s injury. Accordingly,
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the Court finds that amendment would be futile.
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CONCLUSION
For the foregoing reasons, plaintiff’s motion for leave to amend the complaint is DENIED.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
April 18, 2014
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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