Marr v. Bank of America National Association

Filing 31

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND VACATING HEARING by Judge Alsup granting 24 Motion for Leave to File (whalc2, COURT STAFF) (Filed on 6/3/2010)

1 2 3 4 5 6 7 8 9 10 WILLIAM MARR, Plaintiff, v. BANK OF AMERICA, NATIONAL ASSOCIATION; and DOES 1 through 100, inclusive, Defendants. / INTRODUCTION In this employment discrimination action, plaintiff moves for leave to file a second amended complaint to add two claims, fraud and negligent misrepresentation, against defendants. Defendant Bank of America has filed a statement of non-opposition to the motion. For the reasons stated below, plaintiff's motion is GRANTED. STATEMENT This case arises from alleged employment discrimination by defendants Bank of America and Does 1 through 100. Plaintiff has been an account executive employed by Bank of America since 2001. Defendant Bank of America is a corporation doing business in California. Doe defendants are fictitiously named defendants who plaintiff believes were the agents, ostensible agents, servants, employees, representatives, assistants and/or co-conspirators of each of the other defendants and were at all times acting at least in part within the course and scope of his, her, or its authority as such (First Amd. Compl. ¶¶ 3­4). ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND VACATING HEARING No. C 09-05978 WHA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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On August 20, 2009, plaintiff filed an action against defendants Bank of America and Does 1 through 100 in state court in the City and County of San Francisco, alleging: (1) failure to reimburse business expenses, (2) unlawful wage deductions, (3) breach of the covenant of good faith and fair dealing, and (4) violation of California Business and Professions Code § 17200 et seq. On October 23, 2009, plaintiff filed a first amended complaint adding claims for failure to pay wages and breach of contract. Defendant Bank of America answered on December 21, 2009, and removed the case to federal court. The initial case management conference occurred on April 1, 2010. The case management order set a deadline of April 20 to add new parties or plead amendments. On April 30, plaintiff filed a motion for leave to file a second amended complaint based on the following. In his employment, if plaintiff needs to provide a lower rate than the mortgage interest rate set by Bank of America to guarantee that a customer enters into a loan, Bank of America charges him the amount necessary to lower the interest rate to the amount the customer requests (First Amd. Compl. ¶ 12). As a result of speaking to other account executives after filing his first amended complaint, plaintiff learned that many of them were not charged any amounts under these circumstances (Br. 2­3). Plaintiff now seeks to add the two respective claims regarding fraud and negligent misrepresentation to his complaint. On May 28, the Court requested that plaintiff submit a declaration specifying when he learned the information giving rise to the two additional claims. On June 2, plaintiff's counsel filed a declaration stating that plaintiff's counsel gained knowledge of these facts subsequent to the first case management conference. ANALYSIS Under Rule 15(a), leave to amend a complaint shall be freely given when justice so requires. Rule 15(a), however, does not apply when a district court files a pretrial scheduling order that establishes a timetable for amending the pleadings and the deadline expires before a party moves to amend. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). Rule 16 therefore governs. 2

United States District Court

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For the Northern District of California

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Under Rule 16(b), a party must show good cause for not having amended his complaint before the time specified in the scheduling order expired. Plaintiff Marr moves for leave to file a second amended complaint because he has discovered additional information "since filing the first amended complaint" (Br. 2). His counsel's June 2 declaration further specifies that plaintiff's counsel gained this knowledge subsequent to the first case management conference on April 1, 2010. There is no indication that plaintiff is seeking to amend in bad faith, but rather there is evidence that he is adding claims in light of recently acquired knowledge. This knowledge gives rise to additional claims that may be decided on their merits, meaning that the amendment is not futile. Given that there is ample time for discovery before the December 31 deadline and defendants do not oppose the amendment, it does not seem that defendants will face unreasonable delay or undue prejudice. CONCLUSION For the foregoing reasons, plaintiff's motion for leave to file a second amended complaint is GRANTED. The hearing scheduled for June 17, 2010, is hereby VACATED.

United States District Court

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For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: June 3, 2010. IT IS SO ORDERED.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

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