Zulewski et al v. The Hershey Company

Filing 235

Order by Magistrate Judge Kandis A. Westmore granting 227 Motion to Amend/Correct ; Plaintiffs is required to E-FILE the amended document within 14 days.(kawlc1, COURT STAFF) (Filed on 1/29/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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RYAN ZULEWSKI, et al.,

Case No.: CV 11-05117-KAW

Plaintiffs,

ORDER GRANTING PLAINTIFFS’
MOTION FOR LEAVE TO FILE A SECOND
AMENDED COMPLAINT
(Dkt. No. 227)

v.
THE HERSHEY COMPANY,
Defendant.

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I. INTRODUCTION
Plaintiffs move for leave to file a second amended complaint. Defendant The Hershey
Company (“Hershey”) opposes the motion.
On January 17, 2013, the Court held a hearing, and after careful consideration of the

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parties’ arguments, the Court GRANTS Plaintiffs leave to amend their complaint to add as named

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plaintiffs current opt-in plaintiffs Darrin McGowan and Juanita Avila; to add a Fifth Cause of

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Action for FLSA Retaliation brought by plaintiffs Tyler McKenzie, Darrin McGowan, and

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Juanita Avila for termination as a result of joining Campanelli and the instant case; and to remove

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Shane Huey as a plaintiff in this action.

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II. BACKGROUND
On October 19, 2011, Plaintiffs filed a Fair Labor Standards Act (FLSA) collective action

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alleging that their retail service representatives (“RSRs”) position was misclassified, such that hey

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were wrongfully denied compensation for all hours worked over forty hours per week. (See

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Compl., Dkt. No. 1.) At the Case Management Conference on November 20, 2012, Plaintiffs

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advised the Court of its intention to file a motion for leave to file a second amended complaint to

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add a cause of action for FLSA retaliation on behalf of one current named plaintiff and two

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current opt-in plaintiffs. The Court ordered that Plaintiffs file their motion by December 14,

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2012. (Dkt. No. 222.) Plaintiffs filed the current motion on December 12, 2012. (Dkt. No. 227.)
III. DISCUSSION

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Federal Rule of Civil Procedure 15(a) provides that leave of the court to allow a party to

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amend its pleading “shall be freely given when justice so requires.” Leave to amend lies within

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the sound discretion of the trial court, which “must be guided by the underlying purpose of Rule

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15 to facilitate decision on the merits, rather than on the pleadings or technicalities.” United States

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v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (citations omitted). Thus, Rule 15’s policy of favoring

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amendments to pleadings should be applied with “extreme liberality.” Eminence Capital, LLC v.

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United States District Court
Northern District of California

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Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Courts consider five factors when assessing the propriety of a motion for leave to amend:

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undue delay, bad faith, futility of amendment, prejudice to the opposing party and whether the

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plaintiff has previously amended the complaint. Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d

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1051, 1055 n.3 (9th Cir. 2009). Futility, on its own, can justify denying a motion to amend. Id. at

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1055. An amendment that adds a cause of action is futile if it fails to state a claim upon which

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relief could be granted. Townsend v. Univ. of Alaska, 543 F.3d 478, 486 n.6 (9th Cir. 2009).

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Plaintiffs seek to amend their complaint to add a Fifth Cause of Action for FLSA

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Retaliation brought by plaintiffs Tyler McKenzie, Darrin McGowan, and Juanita Avila based on

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their alleged termination as a result of joining the Campanelli case and the instant Zulewski case.

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This amendment requires that current opt-in plaintiffs McGowan and Avila become named

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plaintiffs.

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Defendant opposes Plaintiffs’ motion on the basis that amendment that it would cause

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undue delay, would unduly prejudice Defendant, and amendment would be would be futile

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because plaintiffs were terminated for non-retaliatory reasons. The Court disagrees.

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First, while Plaintiffs waited several months to seek leave to amend after the termination

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of each of the three plaintiffs, at the time of the terminations the parties were engaged in early

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mediation in an attempt to resolve the case. Upon each plaintiff’s termination, Plaintiffs timely

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provided Hershey with notice of their intent to seek leave to amend, and sought to do so once
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mediation failed. In addition, there is little additional discovery required, as part of the discovery

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process will be to produce the personnel files of all plaintiffs, and Defendant Hershey is already in

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possession of those documents.
Second, any potential prejudice to Hershey could be resolved through bifurcation at trial.

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The parties have agreed to address this issue at a later date.
Third, Hershey contends that amendment would be futile. In assessing “futility,” the court

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uses the same legal sufficiency standard it applies under Rule 12(b)(6). See Glassman v.

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Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)(citing 3 Moore’s Federal Practice ¶

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15.08[4], at 15-81 (2d ed. 1993)). The FLSA has an anti-retaliation provision that provides that it
is unlawful “to discharge...any employee because such employee has filed any complaint or

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United States District Court
Northern District of California

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instituted or caused to be instituted any proceeding under or related to this chapter....” See 29

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U.S.C. § 215(a)(3). For that reason, Plaintiffs’ allegations, if true, state a cause of action for

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which relief may be granted.
In addition, there are several factors weighing in favor of allowing amendment, namely

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judicial efficiency and the conservation of judicial resources. Hershey reclassified the RSR

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position as non-exempt in January 2012, so RSRs are now hourly employees who receive

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overtime compensation. For that reason, the instant action is supposed to be the last FLSA

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collective action involving the RSR classification at The Hershey Company. Also, by trying the

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retaliation claim alongside other related personnel matters, the parties are able to avoid the

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duplication of discovery and the court’s time and resources that would be necessarily expended if

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this cause of action were to be tried separately.

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IV. CONCLUSION

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For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Leave to File a

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Second Amended Complaint to:

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1. Add as named plaintiffs current opt-in plaintiffs Darrin McGowan and Juanita Avila;

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2. Add a Fifth Cause of Action for Retaliation under the FLSA brought by named plaintiff

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Tyler McKenzie and opt-in plaintiffs, Darrin McGowan and Jaunita Avila;

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3. Remove as a plaintiff Shane Huey, who has dismissed his claims.
Plaintiffs are ordered to file their Second Amended Complaint within 14 days of this

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order.
IT IS SO ORDERED.
Dated: January 29, 2013

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KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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