Owens v. Walgreen Co.

Filing 22

ORDER signed by Judge William B. Shubb on 6/19/12 ORDERING that plaintiff's 16 motion for leave to file a Second Amended Complaint is GRANTED. Plaintiff shall file his amended complaint within ten days of the date of this order. In accordance with his reply brief, plaintiff shall remove 42 U.S.C. § 1981 as a basis for his fourth cause of action, Failure to Prevent Discrimination and Harassment. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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SHAUN OWENS,

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NO. CIV. 2:12-419 WBS JFM

Plaintiff,
MEMORANDUM AND ORDER RE:
MOTION FOR LEAVE TO AMEND

v.
WALGREEN CO. and DOES 1
through 100, inclusive,

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Defendant.
___________________________/

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----oo0oo---Plaintiff Shaun Owens brought this action against

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defendant Walgreen Co. (“Walgreen”) arising out of defendant’s

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allegedly discriminatory employment practices on the basis of

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plaintiff’s race.

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motion for leave to file a Second Amended Complaint (“SAC”)

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pursuant to Federal Rule of Civil Procedure 15(a)(2).

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proposed SAC reasserts claims under California’s Fair Employment

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and Housing Act (“FEHA”) and alleges additional claims under 42

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U.S.C. § 1981.

Presently before the court is plaintiff’s

The

(Pl.’s Mot. for Leave to File SAC, Ex. A (“SAC”)
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(Docket No. 16).)

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I.

Factual and Procedural Background

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In August 2007, defendant Walgreen hired plaintiff as a

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manager in training (“MGT”).

(FAC ¶ 9.)

Plaintiff alleges that

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during his time as an employee, defendant discriminated against

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him and harassed him based on his race and that his subsequent

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termination was also based on his race.

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Defendant terminated plaintiff’s employment on April 19, 2009.

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(Id. ¶ 55.)

(See FAC ¶¶ 8-58.)

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On December 22, 2011, plaintiff filed a complaint in

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state court alleging seven causes of action under California’s

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FEHA.

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Defendant removed the action to federal court, (Notice of Removal

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(Docket No. 1)), and on April 9, 2012, the court granted

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defendant’s motion to dismiss with leave to amend, (Apr. 9, 2012,

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Order at 16:25-28 (Docket No. 12).)

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filed his First Amended Complaint (“FAC”), reasserting one

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discrimination claim on the basis of race under FEHA.

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No. 13.)

(Notice of Removal, Ex. A (“Compl.”) (Docket No. 1).)

On April 27, 2012, plaintiff

(Docket

On May 15, 2012, plaintiff moved for leave to file a

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SAC.

(Docket No. 16.)

Plaintiff’s proposed SAC alleges five

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causes of action under California and federal law: (1)

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Discrimination based on Race (FEHA), (2) Racial Harassment and

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Discrimination (42 U.S.C. § 1981), (3) Retaliation (42 U.S.C. §

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1981), (4) Failure to Prevent Harassment and Retaliation (FEHA

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and 42 U.S.C. § 1981),1 and (5) Wrongful Termination in Violation

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of Public Policy.

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II.

Discussion

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A motion to amend is subject to Rule 15(a)(2) of the

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Federal Rules of Civil Procedure, which provides that “[t]he

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court should freely give leave [to amend] when justice so

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requires.”

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requirement as in Rule 16 of the Federal Rules of Civil

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Procedure.

Fed. R. Civ. P. 15(a)(2).

There is no “good cause”

Fed. R. Civ. P. 16(b); see Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

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grant leave to amend is within the discretion of the district

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court.

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Whether to

Foman v. Davis, 371 U.S. 178, 182 (1962).
The court must evaluate the request to amend the FAC in

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light of Rule 15(a)’s liberal standard.

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Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (holding

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that this policy is to be applied with “extreme liberality”).

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Under Rule 15(a), there exists a presumption in favor of granting

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leave to amend.

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1048, 1052 (9th Cir. 2003).

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unless amendment: (1) would cause prejudice to the opposing

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party, (2) is sought in bad faith, (3) creates undue delay, (4)

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or is futile.

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1142, 1153 (9th Cir. 2011) (citing Foman, 371 U.S. at 182).

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
Leave to amend should be granted

Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d

“Unless undue prejudice to the opposing party will

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Morongo Band of Mission

result, a trial judge should ordinarily permit a party to amend

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In his Reply, plaintiff concedes that 42 U.S.C. § 1981
is not a proper basis for his fourth claim for failure to prevent
harassment and retaliation. (Pl.’s Reply at 8:1-5 (Docket No.
20).)
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its complaint.”

Duhn Oil Tool, Inc. v. Cooper Cameron Corp., 609

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F. Supp. 2d 1090, 1092 (E.D. Cal. 2009) (quoting Howey v. United

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States, 481 F.2d 1187, 1190 (9th Cir. 1973)).

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touchstone of the inquiry whether a motion to amend should be

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granted under Rule 15(a).

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Capital, 316 F.3d at 1052). Absent prejudice or a strong showing

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of any of the remaining Rule 15(a) factors, there exists a

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presumption under Rule 15(a) in favor of granting leave to amend.

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Id.

Prejudice is the

Id. at 1092-93 (quoting Eminence

Prejudice exists where amendment will significantly

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hinder a defendant’s ability to defend against the plaintiff’s

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claims, as in cases where the defendant has no notice, discovery

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has already been completed, or when the amendment will require

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relitigation of significant issues.

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Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir. 1989).

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the instant motion was filed, the court had not yet issued a

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scheduling order in this matter, no discovery had occurred, and

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no trial date had been set.

See Ascon Props., Inc. v.
At the time

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Defendant does not argue that it would be prejudiced,

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that plaintiff seeks to amend in bad faith, or that undue delay

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would result if plaintiff is given leave to amend.

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opposes plaintiff’s motion to amend solely based on futility of

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the proposed amendment.

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1 (Docket No. 19).)

Defendant

(Opp’n to Mot. for Leave to File SAC at

Denial of leave to amend on futility grounds alone is

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Netbula v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal.

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rare.

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2003).

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can be proved under the amendment to the pleadings that would

“[A] proposed amendment is futile only if no set of facts

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constitute a valid and sufficient claim or defense.”

Miller v.

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Rykoff–Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).
Defendant primarily relies on two bases to demonstrate

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futility of amendment: (1) that plaintiff’s allegations are

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insufficient to establish a claim, and (2) that the claims are

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barred by the statute of limitations.

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Rule 15(a)’s liberal amendment standard, courts ordinarily “defer

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consideration of challenges to the merits of a proposed amended

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pleading until after leave to amend is granted and the amended

(Docket No. 19.)

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pleading is filed.”

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defendant’s statute of limitations argument, plaintiff asserts an

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equitable tolling claim2 and also a relation back argument under

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Federal Rule of Civil Procedure 15(c).

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(Docket No. 20).)

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amendment at this point because the better preferred procedure is

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to allow amendment and permit the defendant to challenge the

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pleadings with a motion to dismiss.

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Netbula, 212 F.R.D. at 539.

Under

With regard to

(Pl.’s Reply at 6:18-19

The court declines to rule on futility of

IT IS THEREFORE ORDERED that plaintiff’s motion for

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leave to file a Second Amended Complaint be, and the same hereby

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is, GRANTED.

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Plaintiff shall file his amended complaint, a copy of

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which is attached as an exhibit to this motion, within ten days

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of the date of this order.

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In his Reply, plaintiff argues that whenever the
exhaustion of administrative remedies is a prerequisite to the
initiation of a civil action, the running of the limitations
period is tolled during the time consumed by the administrative
proceeding. Elkins v. Derby, 12 Cal. 3d 410 (1974). But see
Mathieu v. Norrel Corp., 115 Cal. App. 4th 1174, 1189 (2004)
(holding that the limitations period was not tolled while
plaintiff was pursuing her administrative claim with DFEH).
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In accordance with his reply brief, plaintiff shall

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remove 42 U.S.C. § 1981 as a basis for his fourth cause of

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action, Failure to Prevent Discrimination and Harassment.

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DATED:

June 19, 2012

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