Serlin v. Alexander Dawson School, LLC et al

Filing 32

ORDER Granting 21 Motion to Amend/Correct Complaint. IT IS FURTHER ORDERED that plaintiff shall file the proposed amended complaint attached to motion as exhibit 1 within 10 days of the publication of this order. Signed by Judge James C. Mahan on 2/7/13. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CHERI SERLIN

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2:12-CV-1431 JCM (GWF)

Plaintiff(s),

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v.

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THE ALEXANDER DAWSON
SCHOOL, et al.,

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Defendant(s).

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ORDER

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Presently before the court is plaintiff’s motion to amend/correct complaint. (Doc. # 21).

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Defendants filed a response in opposition (doc. # 23), and plaintiff filed a reply (doc. # 25).

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I.

Background

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Plaintiff was a school teacher. She lost her job and alleges it was due to age discrimination

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and Family and Medical Leave Act violations, among other things. (See doc. # 21). Plaintiff

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received a right to sue letter from the Equal Employment Opportunity Commission (“EEOC”).

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Plaintiff timely filed the instant lawsuit after receiving the right to sue letter.

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Plaintiff named all of the following as defendants in her complaint: Alexander Dawson

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School, a Nevada limited liability company; Alexander Dawson School, a Nevada corporation; and

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Alexander Dawson Foundation. (Doc. # 1, Compl.). Plaintiff now seeks to amend her complaint

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and add Alexander Dawson School at Rainbow Mountain, LLC as a defendant. (Doc. # 21). This

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is plaintiff’s first request to amend her complaint.

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James C. Mahan
U.S. District Judge

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II.

Legal Standard

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“[L]eave to amend should be granted ‘if at appears at all possible that the plaintiff can correct

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the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (internal citations and quotations

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omitted).

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Under Rule 15©, “[a]n amendment to a pleading relates back to the date of the original

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pleading” in three circumstances. First, for all amendments, relation back is permitted if “the law

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that provides the applicable statute of limitations allows relation back.” Fed.R.Civ.P. 15(c)(1)(A).

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Second, relation back is permitted if “the amendment asserts a claim or defense that arose out of the

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conduct, transaction, or occurrence set out–or attempted to be set out–in the original pleading.”

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Fed.R.Civ.P. 15(c)(1)(B).

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For the third circumstance, the party seeking to amend its complaint must satisfy several

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showings. Relation back is permitted if “ the amendment changes the party or the naming of the

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party against whom a claim is asserted if Rule 15(c)(1)(B) is satisfied and if, within the period

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provided by Rule 4(m) . . ., the party to be brought in by amendment: (I) received such notice of the

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action that it will not be prejudiced on the merits; and (ii) knew or should have known that the action

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would have been brought against it, but for a mistake concerning the proper party’s identity.”

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Fed.R.Civ.P. 15(c)(1)©; see generally Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431, 434

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(9th Cir. 1993) (discussing Rule 15(c)(1)© prior to the amended current version).

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In addition to the Rule 15 requirements, the local rules of federal practice in the District of

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Nevada require that a plaintiff submit a proposed, amended complaint along with a motion to amend.

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LR 15-1(a).

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III.

Discussion

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Plaintiff argues that its omission of Alexander Dawson School at Rainbow Mountain was a

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mistake and that the liberal standard of Rule 15 allows her to amend her complaint. Defendants

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counter by arguing that the court should not allow an amendment because the statute of limitations

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(90 days) of filing an action pursuant to an EEOC right to sue letter has passed. Defendants further

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argue that plaintiff purposefully omitted Alexander Dawson School at Rainbow Mountain from the

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James C. Mahan
U.S. District Judge

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Alexander Dawson School entities.

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In plaintiff’s reply, she argues that she meets the requirements of Fed.R.Civ.P. 15(c)(1)(B)

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and (c)(1)©. The court agrees with plaintiff. Her proposed amended complaint properly arose out

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of the conduct, transaction or occurrence set forth in the original pleading as required by Rule

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15(c)(1)(B). Plaintiff’s firing is part of the same conduct, transaction, or occurrence that forms the

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basis of the complaint.

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The complaint also seeks to add a defendant that knew or should have known that plaintiff

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made a mistake. The defendant sought to be added, Alexander Dawson School at Rainbow

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Mountain, is closely affiliated with the current defendants. The Alexander Dawson School at

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Rainbow Mountain was on notice of the action within the time period provided by Rule 4(m)

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because of the close relationship with the other defendants.

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Additionally, the Alexander Dawson School at Rainbow Mountain knew or should have

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known that this action would have been brought against it but for a mistake or oversight concerning

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its identity. See Krupski v. Costa Crociere S.p.A., 130 S.Ct. 2485, 2493-97 (2010); Schiavone v.

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Fortune, 477 U.S. 21, 27-32 (1986); Lopez, 203 F.3d at 1130-31. The defendant that plaintiff seeks

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to add will not be prejudiced because (1) the new defendant should have already been on notice of

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the lawsuit and (2) discovery has yet to begin in this lawsuit. The court finds it appropriate to permit

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plaintiff to amend her complaint.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to

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amend/correct complaint (doc. # 21) be, and the same hereby, is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall filed the proposed amended complaint that
is attached to her motion as exhibit 1 within ten (10) days of the publication of this order.
DATED February 7, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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