Sharkozy v. Terra-Gen Operating Company, Inc. et al

Filing 44

ORDER granting ECF No. 36 Motion to Amend Complaint : Amended Complaint deadline: 5/1/2017. Signed by Judge Howard D. McKibben on 4/24/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARK SHARKOZY,

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Plaintiff,
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vs.
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TERRA-GEN OPERATING COMPANY,
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INC., et al.,
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Defendants.
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_________________________________ )

3:16-cv-00592-HDM-WGC
ORDER

Before the court is plaintiff’s motion for leave to amend his

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complaint.

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plaintiff replied (ECF No. 42).

(ECF No. 36).

Defendants responded (ECF No. 41) and

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Rule 15(a) provides that leave to amend should be “freely” given

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“when justice so requires.” Fed. R. Civ. P. 15(a)(2). In determining

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whether to grant leave to amend, a court considers the following

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factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing

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party, (4) futility of amendment, and (5) whether the plaintiff has

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previously amended the complaint.

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1077 (9th Cir. 2004).

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motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th

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Cir. 2004).

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Johnson v. Buckley, 356 F.3d 1067,

“Futility alone can justify the denial of a

Granting leave to amend is futile when an added claim would be
barred by the statute of limitations.
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Deutsch v. Turner Corp., 324

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F.3d 692, 718 n.20 (9th Cir. 2003).

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timely filed if they relate back to the original pleadings under Rule

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15(c).

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provides the applicable statute of limitations allows relation back”

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or the amendment asserts a claim “that arose out of the conduct,

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transaction, or occurrence set out–or attempted to be set out–in the

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original pleading.”

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out of the same conduct, transaction, or occurrence if they ‘share a

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common core of operative facts’ such that plaintiff will rely on the

Newly added claims, however, are

The rule provides for relation back when either “the law that

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

“Claims arise

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same evidence to prove each claim.”

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1120, 1133 (9th Cir. 2008) (citing Martell v. Trilogy Ltd., 872 F.2d

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322, 325–26 (9th Cir. 1989)).

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proper if the original pleading put the defendant on notice of the

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‘particular transaction or set of facts’ that the plaintiff believes

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to have caused the complained of injury.” Percy v. San Francisco Gen.

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Hosp., 841 F.2d 975, 979 (9th Cir. 1988) (quoting Santana v. Holiday

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Inns, Inc., 686 F.2d 736, 738–39 (9th Cir. 1982)).

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Williams v. Boeing Co., 517 F.3d

Thus, “amendment of a complaint is

Plaintiff was discharged by his employer on November 24, 2014.

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(ECF No. 1 at ¶ 20).

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2016, alleged the following causes of action: (1) wrongful termination

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under the Americans with Disability Act of 1990 (ADA); (2) violation

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of the Rehabilitation Act; and (3) retaliation under the ADA.

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Plaintiff now seeks to amend his complaint by adding a claim for

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tortious discharge for filing workers’ compensation claims. (ECF No.

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36-1 at ¶¶ 20, 47–51).

Plaintiff’s original complaint, filed March 17,

(Id.).

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In Nevada, “retaliatory discharge by an employer stemming from

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the filing of a workmen’s compensation claim by an injured [at-will]

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employee is actionable in tort.” Hansen v. Harrah’s, 100 Nev. 60, 64,
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675 P.2d 394, 397 (1984).

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statute of limitations period on such a claim.

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State Farm Mut. Auto. Ins. Co. v. Fitts, 120 Nev. 707, 709, 99 P.3d

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1160, 1161 (2004).

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cv-00004-LRH-VPC, 2014 WL 1877431, at *2 (D. Nev. May 9,2014).

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Defendants

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plaintiff’s tortious discharge claim and that this claim relies on

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different facts than those alleged in plaintiff’s original complaint.

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(ECF No. 41 at 3). Defendants argue that the new claim therefore does

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assert

Under Nevada law, there is a two-year
See NRS 11.190(4)(e);

See also Scott v. Corizon Health, Inc., No. 3:14-

that

the

statute

of

limitations

has

run

on

not relate back and that amendment would be futile.

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In plaintiff’s original complaint he referenced the filing of the

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workers’ compensation claim when he stated: “At all relevant times,

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Plaintiff fully, adequately and completely performed all functions,

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duties and responsibilities of his employment with Plaintiff until he

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became

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compensation claim.”

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court

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compensation claim in the context of his termination is sufficient to

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state a claim for tortious discharge.

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discharge claim relates back to the filing of the original complaint.

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As such, the amendment would not be futile.

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motion to amend (ECF No. 36) is granted.

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amended complaint on or before May 1, 2017.

injured

concludes

while

on

the

job.

Plaintiff

(ECF No. 1 at ¶ 18).

that

plaintiff’s

to

____________________________
UNITED STATES DISTRICT JUDGE

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workers’

Plaintiff shall file his

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his

Accordingly, plaintiff’s

DATED: This 24th day of April, 2017.

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workers’

Therefore, the tortious

IT IS SO ORDERED.

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a

Liberally construed, the

reference

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filed