Richardson v. Fluor Corporation

Filing 49

AMENDED ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS 40 MOTION FOR LEAVE TO AMEND.( 48 Order on Motion for Leave to File - striken). Signed by Judge Saundra Brown Armstrong on 2/5/2014. (ndr, COURT STAFF) (Filed on 2/5/2014)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 TIMOTHY RAY RICHARDSON, Case No: C 13-1908 SBA 7 Plaintiff, 8 vs. 9 AMENDED ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR LEAVE TO AMEND FLUOR CORPORATION; FLUOR 10 MAINTENANCE SERVICES, INC.; Docket 40 DOES 1 THROUGH 10, INCLUSIVE, 11 Defendants. 12 13 14 Plaintiff Timothy Ray Richardson brings the instant disability discrimination action 15 against his former employer, Fluor Maintenance Services, Inc. (“Fluor”), and related entity 16 Fluor Corporation (collectively “Defendants”). Among other things, Plaintiff alleges that 17 Defendants failed to accommodate his claustrophobia and improperly terminated his 18 employment in violation of the Americans with Disabilities Act of 1990 (“ADA”) and the 19 California Fair Employment and Housing Act (“FEHA”). 20 The parties are presently before the Court on Plaintiff’s Motion for Leave to Amend 21 First Amended Complaint. Dkt. 46. Plaintiff seeks to add a retaliation claim under the 22 Energy Reorganization Act (“ERA”), 42 U.S.C. § 5851, which recently has been 23 administratively exhausted. Having read and considered the papers filed in connection with 24 this matter and being fully informed, the Court hereby GRANTS the motion in part and 25 DENIES it in part, for the reasons set forth below. The Court, in its discretion, finds this 26 matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. 27 Civ. L.R. 7-1(b). 28 1 I. BACKGROUND 2 A. 3 Plaintiff is an ironworker who suffers from claustrophobia. First Am. Compl. 4 (“FAC”) ¶ 1, Dkt. 11. In February 2012, Fluor hired Plaintiff to work at the Humboldt Bay 5 Nuclear Power Plant in Eureka, California. Id. ¶ 20. While undergoing training, Plaintiff 6 repeatedly informed Fluor management that he suffers from claustrophobia and is unable to 7 work in confined spaces. Id. ¶ 24. Despite being on notice of Plaintiff’s condition, Fluor 8 ordered him to work in a 4’ x 4’ tunnel which contained a radioactive contaminated pipe. 9 Id. ¶ 27. Plaintiff donned a contamination suit, hood, mask and respirator and was about to FACTUAL SUMMARY 10 enter the tunnel when he suffered an anxiety attack. Id. He waited several minutes and 11 attempted to enter the tunnel a second time, but suffered a more severe attack. Id. ¶ 28. As 12 a result of the incident, other workers refused to work with Plaintiff out of fear that he 13 posed a danger to them. Id. ¶ 30. 14 Shortly after the tunnel incident, Plaintiff observed Edgar Ray Roden (“Roden”), a 15 union “bull steward,” working in an unsafe manner while removing a radioactive pipe. Id. 16 ¶ 32. According to Plaintiff, Roden “had a reputation among the workers on the job site as 17 being reckless, careless, and dangerous in how he performed his work and instructed others 18 to do their work.” Id. ¶ 31. Although other employees had complained repeatedly about 19 Roden to Fluor supervisor David LaBouef (“LaBoeuf”), nothing was done. Id. ¶ 35. At an 20 impromptu meeting with employees held in “Trailer 35,”1 LaBoeuf told the workers that he 21 was upset that they were “going over his head” to complain about Roden, and that he was 22 doing his best to protect the complaining workers. Id. ¶ 36. After his comments were met 23 with disapproval, LaBouef responded: “Keep it up, and you’ll all be out of work.” Id. ¶ 36. 24 Employee complaints regarding Roden continued, of which Roden and LaBoeuf were later 25 apprised. Id. ¶¶ 37-40. 26 27 1 28 Trailer 35 refers to a trailer which served as a break and meeting room for workers, and contained LaBoeuf and other management personnel’s offices. FAC ¶ 36; SAC ¶ 83. -2- 1 At a subsequent employee meeting called by Ray Trujillo (“Trujillo”) of the 2 International Building Trades union, Trujillo repeated LaBoeuf’s statement from a few days 3 earlier, i.e., “Stop complaining about Roden’s unsafe practices, or risk losing your job.” Id. 4 ¶ 40. Several workers, including Plaintiff and Doug Wilmes (“Wilmes”), complained about 5 Roden’s dangerous conduct and opined that he should step down as bull steward. Id. ¶ 41. 6 Roden was present, and remarked to others that Plaintiff’s comment was going “to cost 7 [Plaintiff] his job.” Id. ¶ 42. 8 On April 13, 2012, Roden summoned Plaintiff to meet with LaBoeuf. Id. ¶ 43. 9 Plaintiff asked Roden to accompany him to the meeting (as he was required to do as a 10 union representative), but he refused. Id. Plaintiff appeared alone in LaBoeuf’s office and 11 was informed that he was being laid off due to his purported inability to work with others. 12 Id. Plaintiff inquired whether LaBouef was referring to his claustrophobia—to which 13 LaBoeuf responded, “Yes.” Id. LaBoeuf then met with Wilmes, who was informed that he 14 was being laid off due to “budget cuts.” Id. 15 As Plaintiff was leaving LaBoeuf’s office, he observed a training session in 16 progress. Id. ¶ 45. The trainer stated that if anyone suffered from claustrophobia, they 17 would not be required to work in confined spaces as there was other work available. Id. 18 No such alternative work, however, had been offered to Plaintiff. Id. 19 B. 20 In May and June 2012, Plaintiff communicated with representatives of Defendants to PROCEDURAL HISTORY 21 challenge his termination and regain employment, but was unsuccessful in obtaining 22 reinstatement. Id. ¶¶ 49-51. 23 On October 5, 2012, Plaintiff timely filed a complaint with the United States 24 Department of Labor, Occupational Safety and Health Administration (“OSHA 25 Complaint”) under the whistleblower provision of the ERA, 42 U.S.C. § 5851. Id. ¶ 52. 26 Plaintiff alleged that the stated grounds for his discharge, i.e., his claustrophobia, was 27 pretextual, and that, in fact, he was being discharged for speaking out about Roden’s unsafe 28 conduct. Id. -3- 1 On April 25, 2013, Plaintiff filed suit in this Court, and thereafter filed a First 2 Amended Complaint (“FAC”) against Defendants on May 16, 2013. Dkt. 1, 11. The FAC 3 alleges three claims: (1) disability discrimination under the ADA; (2) disability 4 discrimination under FEHA; and (3) failure to engage in an interactive process as required 5 by the FEHA. Though no ERA claim is alleged, the FAC states that Plaintiff “expressly 6 reserves the right to amend this complaint to seek relief from this court if, after October 5, 7 2013, no final decision had yet been made on his OSHA Complaint.” Id. ¶ 53.2 8 No action has been taken on Plaintiff’s OSHA Complaint. As such, Plaintiff now 9 seeks leave to file a Second Amended Complaint (“SAC”) to add a claim under the ERA 10 and include certain new allegations. Dkt. 40. Defendants oppose the motion on the 11 grounds of undue prejudice, bad faith and the failure to meet and confer. Dkt. 44. 12 Alternatively, Defendants request leave to conduct further discovery regarding Plaintiff’s 13 new allegations. The matter has been fully briefed and is ripe for adjudication. 14 II. LEGAL STANDARD 15 Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that leave to amend a 16 complaint should be “freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). The 17 Ninth Circuit has repeated counseled that Rule 15 “is to be applied with extreme liberality.” 18 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “Four 19 factors are commonly used to determine the propriety of a motion for leave to amend. 20 These are: bad faith, undue delay, prejudice to the opposing party, and futility of 21 amendment.” Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007) (citing Foman v. 22 Davis, 371 U.S. 178, 182 (1962)). Of these factors, prejudice “carries the greatest weight.” 23 Eminence Capital, LLC, 316 F.3d at 1052. “Absent prejudice, or a strong showing of any 24 of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of 25 2 The ERA prohibits discrimination against “whistleblowers” at commercial nuclear facilities regulated by the Nuclear Regulatory Commission. 42 U.S.C. § 5851(a). An aggrieved employee may file a complaint with the Secretary of Labor (“Secretary”). Id. 27 § 5851(b)(1). If the Secretary has not issued a final decision within one year after the filing of an administrative complaint, the employee may file an action in federal district court. Id. 28 § 5851(b)(4). 26 -4- 1 granting leave to amend.” Id. The party opposing the amendment carries the burden of 2 showing why leave to amend should not be granted. DCD Programs, Ltd. v. Leighton, 833 3 F.2d 183, 187 (9th Cir. 1987). The decision to grant or deny a request for leave to amend 4 rests in the discretion of the trial court. See California v. Neville Chem. Co., 358 F.3d 661, 5 673 (9th Cir. 2004). 6 III. DISCUSSION 7 A. 8 Defendants claim that they will be prejudiced if Plaintiff is allowed to allege a claim 9 under the ERA because they took his deposition on August 29, 2013, and therefore, will not PREJUDICE 10 have a further opportunity to depose him on this new claim. Opp’n at 4. Though tacitly 11 admitting that they knew of Plaintiff’s intention to eventually pursue an ERA claim, 12 Defendants assert that “there was no way for [them] to know what new allegations 13 [Plaintiff] would bring with the SAC.” Id. 14 Defendants’ claim of surprise and prejudice is unavailing. Well before taking 15 Plaintiff’s deposition, Defendants were well aware of his plan to seek leave to amend if the 16 Secretary had not ruled on his OSHA Complaint by October 5, 2013. Defendants also 17 knew of the factual basis of such claim, which was fully disclosed in the FAC. Compare 18 FAC ¶¶ 32-45 with SAC ¶¶ 32-44, 81-89. Given this awareness, Defendants were certainly 19 in a position to depose Plaintiff regarding those allegations—or, out of an abundance of 20 caution, reserve time to continue his deposition at a later date once the pleadings had 21 actually been amended. Having elected neither option, Defendants cannot legitimately 22 claim that they will be unduly prejudiced if the Court grants Plaintiff leave to amend to 23 allege a claim under the ERA. Any prejudice from granting leave to amend is largely of 24 Defendants’ own making.3 25 26 3 As will be discussed below, the Court will permit Defendants a limited opportunity to further depose Plaintiff regarding his new claim, which will ameliorate any prejudice 28 resulting from Defendants having already having taken his deposition. 27 -5- 1 B. 2 Defendants next contend that leave to amend should be denied on the grounds that BAD FAITH 3 Plaintiff’s proposed amendments are being made in bad faith. In the context of a motion to 4 amend under Rule 15, “bad faith” generally refers to efforts to amend the pleadings late in 5 the litigation in order to obtain an unfair tactical advantage. E.g. Bonin v. Calderon, 59 6 F.3d 815, 846 (9th Cir. 1995) (bad faith shown where petitioner sought leave to amend late 7 in the litigation after suffering an adverse ruling); Acri v. Int’l Ass’n of Machinists & 8 Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986) (amendment disallowed where 9 the delay in amendment was a tactical choice brought specifically to avoid the possibility of 10 an adverse summary judgment ruling). In their motion, Defendants do not allege that 11 Plaintiff is seeking leave to amend for tactical reasons. Rather, they argue that Plaintiff 12 should have alleged certain facts earlier and that some of the new allegations contradict his 13 deposition testimony. The Court discusses the challenged allegations below. 14 15 1. Paragraph 3 Paragraph 3 of the proposed SAC includes an allegation that: “When Plaintiff was 16 sent to be fitted for a respirator, Plaintiff was required to fill out a questionnaire which 17 asked, among other things, whether Plaintiff suffered from claustrophobia. Plaintiff circled 18 the box that said ‘Yes.’” SAC ¶ 3, Dkt. 41-1. Defendants contend that Plaintiff should 19 have alleged these facts in the FAC, and that his attempt to include them now is in bad faith 20 because they have already deposed Plaintiff. Opp’n at 5. This contention lacks merit. 21 There is no evidence that Plaintiff intentionally withheld the facts alleged in 22 Paragraph 3 of the SAC for any improper purpose. Rather, the record shows that the new 23 allegations are based on discovery obtained by Plaintiff in this case. Under those 24 circumstances, leave to amend is proper. See Gross Belsky Alonso LLP v. Henry Edelson, 25 No. C 08-4666 SBA, 2009 WL 1505284, *8 (N.D. Cal. May 27, 2009) (“The Ninth Circuit 26 has held that discovery of new facts after a complaint was filed may warrant granting leave 27 to amend”) (citing Wittmayer v. United States, 118 F.2d 808, 809 (9th Cir. 1941)). In any 28 -6- 1 event, the Court will permit Defendants to depose Plaintiff on this new allegation, which 2 will ameliorate any issue of prejudice. 3 2. 4 Paragraph 82 Paragraph 82 of the proposed SAC states as follows: One of Defendants’ employees while Plaintiff was employed by Defendants at Humboldt Bay was Ironworker Edgar Roden. Roden, on multiple occasions, engaged in unsafe workplace practices while working at Humboldt Bay. Such unsafe practices by Roden were in violation of 42 U.S.C. Chapter 73 (“Development of Energy Sources”) and/or the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq. Plaintiff on at least one occasion reported Roden’s unsafe practice that Plaintiff had observed to Plaintiff’s supervisor, LaBouef, in or about the latter part of March 2012, shortly before being terminated. 5 6 7 8 9 10 11 SAC ¶ 82. Defendants “request that, at a minimum, the Court strike these allegations from 12 the SAC as being in bad faith because they were facts known to [Plaintiff] at the time he 13 filed his Complaint and unduly delayed in amending his complaint to include them, and are 14 being alleged in bad faith.” Opp’n at 5. This argument also lacks merit. 15 Paragraph 82 is one of the paragraphs that comprise Plaintiff’s new whistleblower 16 claim under the ERA. By statute, Plaintiff could not bring his ERA claim in this 17 proceeding until his OSHA Complaint had been pending for at least a year without a final 18 decision having been rendered thereon. See 42 U.S.C. § 5851(b)(1). Defendants were on 19 notice of this, as evidenced by Plaintiff’s disclosures in the FAC and in the Joint Case 20 Management Statement. Additionally, the FAC did, in fact, allege facts regarding Roden’s 21 unsafe workplace practices as well as LaBoeuf’s awareness of the same. E.g., FAC ¶¶ 32- 22 42. In view of the provisions of the ERA, and Plaintiff’s full disclosure of his intentions to 23 seek leave to amend, the Court rejects Defendants’ assertion that Plaintiff unduly delayed 24 or is acting in bad faith in seeking to add a claim for violation of the ERA, including 25 Paragraph 82 of the proposed SAC. 26 // 27 // 28 -7- 1 2 3. Paragraph 83 Paragraph 83 of the proposed SAC alleges, in pertinent part, that: Defendants appeared to countenance Roden’s unsafe workplace practices, and therefore Defendants had warned Plaintiff and other Defendants’ employees not to speak out about Roden’s unsafe workplace conduct. On information and belief, Defendants knew of Plaintiff’s complaints about Roden, which were made publicly within Defendants’ Trailer 35, where Defendants’ management personnel had their offices, during work hours. 3 4 5 6 7 8 SAC ¶ 82. Defendants contend that the allegations contained in Paragraph 83 of the SAC 9 contradict Plaintiff’s deposition testimony, and as such, his effort to allege such facts 10 amounts to bad faith. The Court has reviewed the deposition testimony cited by 11 Defendants and disagrees that it is contradictory. 12 During his deposition, Plaintiff testified that when he complained to LaBoeuf about 13 Roden’s unsafe work practices, LaBoeuf responded that he was “already aware of the 14 situation; I’m on it,” or words to that effect. McInerney Decl. Ex. 5 at 141:7-142:9. 15 Defendants argue that this testimony directly contradicts Plaintiff’s new claim that 16 “Defendants appeared to countenance Roden’s unsafe workplace practices.” Defendants 17 are mixing apples with oranges. The allegation at issue is directed at what Defendants 18 “countenanced,” as opposed to LaBoeuf’s conduct in particular. Moreover, the fact that 19 LaBoeuf stated that he was aware of the problem does not ipso facto mean that either he or 20 Defendants did anything about it. On a motion for leave to amend, reasonable inferences 21 are to be drawn in favor of the movant, not vice-versa. See Griggs v. Pace. Amer. Group, 22 Inc., 170 F.3d 877, 880 (9th Cir. 1999) (consideration of a motion to amend based on 23 Foman factors “should generally be performed with all inferences in favor of granting the 24 motion”). 25 Defendants also dispute the veracity of Plaintiff’s allegation that: “Defendants knew 26 of Plaintiff’s complaints about Roden, which were made publicly within Defendants’ 27 Trailer 35, where Defendants’ management personnel had their offices, during work 28 hours.” SAC ¶ 83. According to Defendants, Plaintiff admitted during his deposition that -8- 1 no managerial employees were present at the meeting organized by Trujillo during which 2 various employees, including Plaintiff, expressed their concerns regarding Roden. Opp’n at 3 7 (citing McInerney Decl. Ex. 5 at 287:12-292:20). However, Plaintiff did not testify that 4 no managers were present; rather, he stated that he could not recall whether any of them 5 were there. McInerney Decl. Ex. 5 at 287:19-20. In addition, Defendants overlook that the 6 pleadings allege that there were other meetings beyond the one discussed in the cited 7 deposition testimony where complaints regarding Roden were publicly expressed. E.g., 8 SAC ¶¶ 36-38. Defendants’ arguments are more appropriately raised on a dispositive 9 motion, not on a Rule 15(a) motion where the governing standard is one of “extreme 10 liberality.” See Eminence Capital, LLC, 316 F.3d at 1051. 11 12 4. Paragraphs 84 and 85 Defendants assert that Plaintiff is seeking to include additional factual allegations in 13 his SAC that are unrelated to his new, proposed claim under the ERA. Opp’n at 6. In 14 Paragraph 84, for instance, Plaintiff alleges that he was not offered or paid any severance 15 benefits at the time of his termination. SAC ¶ 84. Paragraph 85 alleges that Defendants 16 “breached the implied covenant of good faith and fair dealing in terminating the 17 employment of Plaintiff . . . .” SAC ¶ 84. 18 Defendants contend that these allegations have no bearing on Plaintiff’s proposed 19 ERA claim or any other existing claims, and serve no purpose other than to portray 20 Defendants in a negative light. Opp’n at 6. Plaintiff offers no argument to the contrary. In 21 addition, the Court agrees that these particular allegations appear unnecessary to any of 22 Plaintiff’s existing claims or proposed claim under the ERA. Though these particular 23 allegations do not warrant the complete denial of leave to amend, the Court will disallow 24 these particular allegations to be included in the SAC. 25 C. 26 Aside from the issues of prejudice and bad faith, Defendants contend that leave to MEET AND CONFER 27 amend should be denied on the basis that Plaintiff failed meet and confer in good faith prior 28 to filing the instant motion, as required by the Court’s Standing Orders. Opp’n at 8. In -9- 1 response, Plaintiff accuses Defendants of failing to meaningfully participate in the meet and 2 confer process. Reply at 4-5. Upon reviewing the record presented, the Court finds that 3 neither side has acted in good faith. 4 On October 16, 2013, Plaintiff sent a letter to Defendants stating that since the 5 Secretary had not ruled on his administrative complaint by October 5, 2013, he was 6 planning on amending the pleadings to add a claim under the ERA—as he had previously 7 indicated in the FAC and Joint Case Management Statement. McInerney Decl. Ex. 2. 8 Plaintiff included a proposed stipulation and order to authorize the filing of a SAC, and 9 requested that Defendants respond to his request within a week. At Defendants’ request, 10 Plaintiff sent a redlined version of the SAC (to highlight the changes) the same day for their 11 review. Id. 12 On October 24, 2013, a day after the response deadline set by Plaintiff, Defendants 13 sent Plaintiff a letter stating their refusal to stipulate to the filing of the SAC on the grounds 14 that some of the new allegations were inconsistent with Plaintiff’s deposition testimony. 15 Id. Ex. 4. Defendants did not address Plaintiff’s desire to add a claim under the ERA, 16 which is the focal point of the present motion. Nor did Defendants claim, as they do now, 17 that they would be prejudiced by the amendment in light of the fact that Plaintiff had 18 already been deposed. Instead, Defendants concluded their letter with a lengthy threat to 19 seek sanctions under Rule 11. As for Plaintiff, he did not respond to Defendants’ letter, and 20 instead, simply filed his proposed SAC a week later. 21 The obvious purpose of the Court’s meet and confer requirement is to ensure that the 22 parties engage in a good faith, meaningful dialogue regarding disputed issues in effort to 23 first resolve the particular dispute without the need for judicial intervention. Such a 24 process, when successful, obviates the need for unnecessary motion practice, which, in 25 turn, conserves both the Court’s and the parties’ resources. In this case, both parties failed 26 to engage in a meaningful discussion regarding Plaintiff’s proposed SAC. Defendants 27 failed to timely respond to Plaintiff’s request for a stipulation within the ample time 28 provided. And while Defendants certainly had the right to take issue with certain of the - 10 - 1 proposed, new allegations, they inexplicably never addressed Plaintiff’s overarching desire 2 to amend the pleadings to add a claim under the ERA, as Plaintiff has long indicated that he 3 had planned to do. While Plaintiff’s frustration with Defendants’ apparent gamesmanship 4 is understandable, he nonetheless should have attempted to respond to Defendants’ 5 concerns rather than unilaterally filing his motion. The parties are warned that further 6 transgressions of any order of this Court, including its Standing Orders, may result in the 7 imposition of sanctions against counsel and/or their respective clients. 8 D. 9 As an alternative matter, Defendants request that, in the event the Court grants 10 Plaintiff leave to amend, that they be allowed to depose Plaintiff for an additional five 11 hours and to propound five additional interrogatories.4 Plaintiff counters that no additional 12 time to depose him or to propound additional interrogatories should be allowed, since 13 Defendants intentionally chose not to depose him on said claim even though they were well 14 aware of his intention to pursue a claim under the ERA. 15 FURTHER DISCOVERY Neither of the parties’ arguments is particularly compelling. While Defendants no 16 doubt would prefer not to invest time and resources in conducting discovery on claims that 17 have yet to be pled, it certainly would have been prudent for them to, at a minimum, avoid 18 utilizing the entire allotted seven hours to depose him and instead reserve time to depose 19 Plaintiff at later date after it had become clear that Plaintiff was pursuing an ERA claim in 20 this action. At the same time, Plaintiff has neither claimed nor demonstrated that he will be 21 prejudiced or unduly burdened by being subject to a further deposition for the limited 22 purpose of addressing his new allegations. Therefore, in the interests of justice, the Court 23 will permit Defendants additional time to depose Plaintiff. Although Defendants request 24 five additional hours of deposition time, they have made no showing to justify affording 25 26 4 As noted, absent a stipulation or court order, depositions are limited to “1 day of 7 hours.” Fed. R. Civ. P. 30(d)(1). Rule 33(a)(1) similarly provides that, “Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 28 written interrogatories, including all discrete subparts.” 27 - 11 - 1 them almost twice as much time as the seven hour time limit presumptively permitted under 2 Rule 30(d)(1). 3 Based on its review of the new allegations, the Court finds that an additional two 4 hours of deposition time will suffice. No further interrogatories will be permitted, as 5 Defendants will have ample opportunity to query Plaintiff regarding the factual basis of his 6 ERA claim and additional allegations during his further deposition. 7 IV. CONCLUSION 8 For the reasons stated above, 9 IT IS HEREBY ORDERED THAT: 10 1. Plaintiff’s Motion for Leave to Amend is GRANTED IN PART and DENIED 11 IN PART. Plaintiff is granted leave to amend to file his proposed SAC, except as to 12 Paragraphs 84 and 85 therein. Plaintiff shall file his SAC consistent with this Order within 13 two (2) calendar days of the date this Order is filed. 14 2. Defendants are granted leave to further depose Plaintiff, but only with respect 15 to Plaintiff’s claim under the ERA and any new factual allegations in the SAC. The further 16 deposition shall be limited to two (2) hours. Defendants’ counsel shall not depose Plaintiff 17 on any issues beyond those that have been expressly authorized in this Order. 18 3. To ensure that any future meet and confer discussions are meaningful and 19 productive, all such discussions must now culminate in verbal communication, either face- 20 to-face or by telephone. 21 4. This Order terminates Docket 16. 22 5. This Order supersedes Docket 48, which is stricken. 23 IT IS SO ORDERED. 24 Dated: 2/5/14 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 25 26 27 28 - 12 -

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