Algee v. Nordstrom, Inc.
Filing
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ORDER GRANTING DEFENDANTS 35 MOTION FOR LEAVE TO FILE AMENDED OR SUPPLEMENTAL ANSWER. Amended Pleadings due by 1/5/2012. Signed by Judge Claudia Wilken on 12/27/2011. (ndr, COURT STAFF) (Filed on 12/27/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BRIAN ALGEE, individually and on
behalf of all others similarly
situated,
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Plaintiff,
v.
NORDSTROM, INC.,
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United States District Court
For the Northern District of California
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No. C 11-301 CW
ORDER GRANTING
DEFENDANT’S MOTION
FOR LEAVE TO FILE
AMENDED OR
SUPPLEMENTAL
ANSWER
(Docket No. 35)
Defendant.
________________________________/
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Defendant Nordstrom, Inc. moves for leave to file an amended
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or supplemental answer to Plaintiff Brian Algee’s complaint.
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Plaintiff opposes this motion.
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presented in the papers and at oral argument, the Court GRANTS
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Having considered the arguments
Defendant’s motion.
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BACKGROUND
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On December 21, 2010, Plaintiff filed this action, on behalf
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of himself and a putative class of salaried Executive Chefs, in
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the Superior Court of the State of California, in San Francisco
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County.
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violated California state law by failing to pay overtime
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compensation and meal and rest period compensation, failing to
In his complaint, Plaintiff alleges that Defendant
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provide accurate wage statements, failing to pay compensation
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timely upon termination of employment or voluntarily separation
and unfair business practices amounting to unfair competition.
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The putative class encompasses persons whom Defendant employed as
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Executive Chefs in one or more Nordstrom restaurants in California
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at any time on or after December 17, 2006.
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On January 19, 2011, Defendant filed an answer and
affirmative defenses in state court.
The following day, Defendant
removed this action to this Court pursuant to its diversity
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jurisdiction.
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On July 14, 2011, this Court held a case management
United States District Court
For the Northern District of California
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conference and set that date as the deadline to add additional
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parties or claims.
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In late August 2011, Defendant implemented a new policy
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requiring that all current employees arbitrate on an individual
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basis all “past, present, and future disputes” with Nordstrom
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regarding their employment relationship, including claims related
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to “unfair competition, compensation, breaks and rest periods.”
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Defendant now seeks to amend or supplement its answer to
assert defenses related to its new arbitration policy.
LEGAL STANDARD
Generally, Federal Rule of Civil Procedure 15(a) provides for
liberal allowance of amendments to pleadings.
However, because
Defendant moved to file an amended answer on October 14, 2011,
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three months after the deadline established under the case
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management order, Rule 16(b) applies.
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Under Rule 16(b), “[a] schedule shall not be modified except
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upon a showing of good cause and by leave of the district judge.”
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Fed. R. Civ. Pro. 16(b).
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plaintiff's ability “to amend his complaint [is] governed by Rule
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16(b), not Rule 15(a).”
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F.2d 604, 608 (9th Cir. 1992).
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amend a pleading after the date specified in a scheduling order
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Where a schedule has been filed, the
Johnson v. Mammoth Recreations, Inc., 975
Therefore, a party seeking to
must first show “good cause” for the amendment under Rule 16(b),
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and second, if good cause is shown, the party must demonstrate
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United States District Court
For the Northern District of California
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that the amendment is proper under Rule 15.
Id.
In order to determine whether good cause exists, courts
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primarily consider the diligence of the party seeking the
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modification.
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232 F.3d 1271, 1294 (9th Cir. 2000).
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participate from the outset in creating a workable Rule 16
Id. at 609; see also Coleman v. Quaker Oats Co.,
“[N]ot only must parties
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scheduling order but they must also diligently attempt to adhere
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to that schedule throughout the subsequent course of the
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litigation.”
Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D.
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Cal. 1999).
A party moving for an amendment to a scheduling order
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must therefore show it was diligent in assisting the Court to
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create a workable schedule at the outset of litigation, that the
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scheduling order imposes deadlines that have become unworkable
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notwithstanding its diligent efforts to comply with the schedule,
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and that it was diligent in seeking the amendment once it became
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apparent that extensions were necessary.
Id. at 608.
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Federal Rule of Civil Procedure 15(a) provides that leave of
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the court allowing a party to amend its pleading “shall be freely
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given when justice so requires.”
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liberal policy towards amendment, the nonmoving party bears the
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burden of demonstrating why leave to amend should not be granted.”
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Genentech, Inc. v. Abbott Laboratories, 127 F.R.D. 529, 530-531
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(N.D. Cal. 1989) (citing Senza-Gel Corp. v. Seiffhart, 803 F.2d
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661, 666 (Fed. Cir. 1986)).
Because “Rule 15 favors a
Courts generally consider five
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factors when assessing the propriety of a motion for leave to
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amend: undue delay, bad faith, futility of amendment, prejudice to
United States District Court
For the Northern District of California
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the opposing party and whether the party has previously amended
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the pleadings.
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1051, 1055 n.3 (9th Cir. 2009).
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inquiry essentially incorporates the other factors, “if a court
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finds that good cause exists, it should then deny a motion for
Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d
Because Rule 16(b)'s “good cause”
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leave to amend only if such amendment would be futile.”
Thompson
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v. City of Redding, 2011 U.S. Dist. LEXIS 69645, at *3 n.2 (E.D.
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Cal.).
However, “a proposed amendment is futile only if no set of
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facts can be proved under the amendment to the pleadings that
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would constitute a valid and sufficient claim or defense.”
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v. Rykoff-Sexton, 845 F.2d 209, 214 (9th Cir. 1988); Bonin v.
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Calderon, 59 F.3d 815, 845 (9th Cir. 1995).
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Miller
DISCUSSION
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Plaintiff argues that good cause does not exist and that
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amendment would be futile.
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I.
Good Cause
Plaintiff does not dispute that Defendant acted with
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diligence in seeking this amendment.
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Mobility, LLC v. Concepcion, 131 S. Ct. 1740 (2011), the Supreme
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Court held that the California Supreme Court’s Discover Bank1
Earlier this year, in AT&T
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rule, which provided that class-action waivers in consumer
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contracts of adhesion were unconscionable in cases where a party
with superior bargaining power was alleged to have cheated large
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United States District Court
For the Northern District of California
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numbers of consumers out of individually small sums of money, was
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pre-empted by the Federal Arbitration Act (FAA).
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Defendant explains that, in response, it revised its employee
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arbitration agreement to include a class action waiver, in or
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around August 2011.
Mot. at 3.
Id. at 1753.
On September 30, 2011, Defendant
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asked Plaintiff to stipulate to Defendant’s filing of an amended
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answer.
On October 11, 2011, Plaintiff refused to stipulate.
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Three days later, on October 14, 2011, Defendant filed the instant
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motion.
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diligence in seeking to amend its answer.
Accordingly, it appears that Defendant acted with
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Futility
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Plaintiff argues that amendment would be futile, because he
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himself is not bound by the revised policy, in that his employment
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with Defendant terminated in September 2010, almost a year before
the new policy was promulgated.
However, as Defendant points out,
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Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005).
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Plaintiff is seeking to pursue his claims on behalf of a class
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that includes individuals who are currently employed by Defendant
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and who may be bound by the new policy.
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any authority supporting that Defendant cannot assert a defense in
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his answer that only applies to some putative class members.
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Plaintiff does not cite
Plaintiff makes no other argument that there is no set of
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facts under which the amendment to the pleadings would constitute
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a valid and sufficient defense.
Instead, Plaintiff makes
United States District Court
For the Northern District of California
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arguments that focus on whether the relevant arbitration agreement
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in this case in fact compels arbitration in this lawsuit.
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support that this is an appropriate inquiry, Plaintiff relies on a
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single case, Mannick v. Kaiser Found. Health Plan, Inc., 2005 U.S.
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Dist. LEXIS 40405 (N.D. Cal.).
To
However, Plaintiff misstates what
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the court found in that case.
In Mannick, the court was
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simultaneously presented with a motion to compel arbitration and a
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motion to amend the answer.
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compel arbitration first and examined the evidence presented to
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find that the claims asserted in the lawsuit were not covered by
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the arbitration agreement.
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motion because the defendants had no right to compel arbitration.
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Id.
The court addressed the motion to
Id. at *13-15.
The court denied the
The court then considered the motion to amend the answer and
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concluded that, “as the court has denied the motion to compel
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arbitration, the issue is moot.”
Id. at *16.
The court in
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Mannick did not determine whether the defendants would be
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ultimately successful on the defense in order to decide the motion
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to amend the answer, but considered this instead to decide the
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motion to compel arbitration.
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which a court, in the context of a motion to amend the pleadings,
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made a determination of whether the defendants would ultimately be
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able to prevail on a defense, instead of assessing whether it
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Plaintiff cites no other case in
would be possible for the defense to be proven under any set of
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facts.
Thus, Plaintiff’s remaining arguments, which go to whether
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Defendant will ultimately be able to prevail on this defense, are
United States District Court
For the Northern District of California
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more appropriately raised in the context of a motion to compel
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arbitration.
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CONCLUSION
For the reasons set forth above, the Court GRANTS Defendant’s
motion for leave to file an amended or supplemental answer.
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Defendant shall file its amended or supplemental answer by January
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5, 2012.
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IT IS SO ORDERED.
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Dated: 12/27/2011
CLAUDIA WILKEN
United States District Judge
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