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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 13 14 15 MARK SHARKOZY, ) ) Plaintiff, ) ) ) ) vs. ) ) TERRA-GEN OPERATING COMPANY, ) INC., et al., ) ) Defendants. ) _________________________________ ) 3:16-cv-00592-HDM-WGC ORDER Before the court is plaintiff’s motion for leave to amend his 16 complaint. 17 plaintiff replied (ECF No. 42). (ECF No. 36). Defendants responded (ECF No. 41) and 18 Rule 15(a) provides that leave to amend should be “freely” given 19 “when justice so requires.” Fed. R. Civ. P. 15(a)(2). In determining 20 whether to grant leave to amend, a court considers the following 21 factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing 22 party, (4) futility of amendment, and (5) whether the plaintiff has 23 previously amended the complaint. 24 1077 (9th Cir. 2004). 25 motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th 26 Cir. 2004). 27 28 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. 1 Deutsch v. Turner Corp., 324 1 F.3d 692, 718 n.20 (9th Cir. 2003). 2 timely filed if they relate back to the original pleadings under Rule 3 15(c). 4 provides the applicable statute of limitations allows relation back” 5 or the amendment asserts a claim “that arose out of the conduct, 6 transaction, or occurrence set out–or attempted to be set out–in the 7 original pleading.” 8 out of the same conduct, transaction, or occurrence if they ‘share a 9 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 10 same evidence to prove each claim.” 11 1120, 1133 (9th Cir. 2008) (citing Martell v. Trilogy Ltd., 872 F.2d 12 322, 325–26 (9th Cir. 1989)). 13 proper if the original pleading put the defendant on notice of the 14 ‘particular transaction or set of facts’ that the plaintiff believes 15 to have caused the complained of injury.” Percy v. San Francisco Gen. 16 Hosp., 841 F.2d 975, 979 (9th Cir. 1988) (quoting Santana v. Holiday 17 Inns, Inc., 686 F.2d 736, 738–39 (9th Cir. 1982)). 18 Williams v. Boeing Co., 517 F.3d Thus, “amendment of a complaint is Plaintiff was discharged by his employer on November 24, 2014. 19 (ECF No. 1 at ¶ 20). 20 2016, alleged the following causes of action: (1) wrongful termination 21 under the Americans with Disability Act of 1990 (ADA); (2) violation 22 of the Rehabilitation Act; and (3) retaliation under the ADA. 23 Plaintiff now seeks to amend his complaint by adding a claim for 24 tortious discharge for filing workers’ compensation claims. (ECF No. 25 36-1 at ¶¶ 20, 47–51). Plaintiff’s original complaint, filed March 17, (Id.). 26 In Nevada, “retaliatory discharge by an employer stemming from 27 the filing of a workmen’s compensation claim by an injured [at-will] 28 employee is actionable in tort.” Hansen v. Harrah’s, 100 Nev. 60, 64, 2 1 675 P.2d 394, 397 (1984). 2 statute of limitations period on such a claim. 3 State Farm Mut. Auto. Ins. Co. v. Fitts, 120 Nev. 707, 709, 99 P.3d 4 1160, 1161 (2004). 5 cv-00004-LRH-VPC, 2014 WL 1877431, at *2 (D. Nev. May 9,2014). 6 Defendants 7 plaintiff’s tortious discharge claim and that this claim relies on 8 different facts than those alleged in plaintiff’s original complaint. 9 (ECF No. 41 at 3). Defendants argue that the new claim therefore does 10 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. 11 In plaintiff’s original complaint he referenced the filing of the 12 workers’ compensation claim when he stated: “At all relevant times, 13 Plaintiff fully, adequately and completely performed all functions, 14 duties and responsibilities of his employment with Plaintiff until he 15 became 16 compensation claim.” 17 court 18 compensation claim in the context of his termination is sufficient to 19 state a claim for tortious discharge. 20 discharge claim relates back to the filing of the original complaint. 21 As such, the amendment would not be futile. 22 motion to amend (ECF No. 36) is granted. 23 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 3 workers’ Plaintiff shall file his 26 28 his Accordingly, plaintiff’s DATED: This 24th day of April, 2017. 27 workers’ Therefore, the tortious IT IS SO ORDERED. 25 a Liberally construed, the reference 24 filed

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