Jenkins v. Vestas-American Wind Technology, Inc.
Filing
40
OPINION and ORDER: Denying Motion for Leave to File Amended Complaint 28 . Signed on 3/3/14 by Chief Judge Ann L. Aiken. (kf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RICHARD JENKINS,
Plaintiff,
v.
VESTAS-AMERICAN WIND TECHNOLOGY,
INC.,a foreign corporation,
Defendant.
Craig A. Crispin
Crispin Employment Lawyers
1834 S.W. 58th Avenue, Suite 200
Portland, Oregon 97221
John Judge
Judge, Kostura & Putnam, PC
2901 Bee Cave Road, Box L
Austin, Texas 78746
Attorneys for plaintiff
Carol J. Bernick
James G. Parker
Davis Wright Tremaine, LLP
1300 S.W. Fifth Avenue, Suite 2300
Portland, Oregon 97201
Attorneys for defendant
Page 1 - OPINION AND ORDER
Case No. 3:12-cv-01758-AA
OPINION AND ORDER
AIKEN, Chief Judge:
Plaintiff Richard Jenkins moves to amend his complaint against
defendant Vestas-American Wind Technology, Inc. pursuant to Fed. R.
Civ. P. 15.
For the reasons set forth below, plaintiff's motion is
denied.
BACKGROUND
From October 2008 through August 2011, plaintiff was employed
as a project technician by defendant.
As a project technician,
plaintiff traveled to wind farm locations nationwide to perform
construction and maintenance on wind turbine towers.
direct
supervisor
was
Stacy
Nelson,
who
was
Plaintiff's
based
out
of
defendant's Portland office; plaintiff also reported directly to
local supervisors at each job site.
demanding,
requiring
plaintiff
to
The position was physically
lift,
push,
or
carry
fifty
pounds; climb heights up to 410 feet; work in confined spaces atop
towers in adverse weather conditions; stand or walk for prolonged
periods; and stoop, kneel, crouch, or crawl regularly.
During
his
several injuries.
employment
Most
with
recently,
injury that required surgery.
defendant,
plaintiff
sustained
plaintiff experienced a
knee
On April 1, 2011, plaintiff went on
leave under the Family Medical Leave Act ("FMLA") to recover after
his knee surgery.
After twelve weeks, plaintiff's FMLA leave was
exhausted, but he did not have clearance from his doctor to return
Page 2 - OPINION AND ORDER
to work.
24,
Defendant granted plaintiff additional leave from June
2011 to August 12, 2011.
terminated because he
On August 12,
still did not
2011, plaintiff was
have medical
clearance to
return to full duty work. 1
On September 28,
2012, plaintiff filed a complaint in this
Court, alleging a wrongful discharge under Oregon common Law and
two claims of disability discrimination under the American's with
Disabilities Act
termination.
order
that
("ADA")
for failure to accommodate and wrongful
On December 12, 2012, the Court entered a scheduling
set
June
June
14,
28,
2013
2013
as
as
the
the
deadline
deadline
for
for
completing
discovery
and
dispositive
motions. 2
On June 17, 2013, the Court extended the deadline for
the parties to complete discovery and file dispositive motions
until November 8,
November
15,
December 9,
2013 and November 15,
2013,
2 013,
defendant
moved
after obtaining a
for
2013,
respectively.
summary
judgment.
On
On
further extension from the
Court to respond to defendant's summary judgment motion, plaintiff
moved to amend his complaint.
STANDARDS
Where a party seeks to amend the complaint after the date
2
While the scheduling order did not set a deadline for
filing amended pleadings, that deadline was necessarily before
dispositive motions were due.
Page 3 - OPINION AND ORDER
I
.~
{
I
~·
specified in a scheduling order,
he or she "must first
[comply
with] Rule 16(b), then
. must demonstrate that amendment was
proper under Rule 15."
Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 607-08 (9th Cir. 1992)
omitted).
Under Fed. R.
(citations and internal quotations
Civ.
P.
16, a scheduling order "may be
modified only for good cause and with the judge's consent."
R. Civ. P. 16(b) (4).
The good cause inquiry "primarily considers
the diligence of the party seeking the amendment."
F.2d at 609.
Fed.
Johnson,
975
Thus, the "court may modify the pretrial schedule if
it cannot reasonably be met despite the diligence of the party
Id.
(citations and internal quotations
Civ.
P.
seeking the extension."
omitted).
Pursuant to Fed.
R.
15,
leave to amend proceedings
"shall be freely given when justice so requires."
15(a).
Courts apply Fed. R. Civ. P .. 15 with "extreme liberality."
Eminence Capital,
Cir. 2003)
amend
Fed. R. Civ. P.
(citations omitted).
should be
considers
LLC v. As peon,
four
granted
factors:
futility of amendment;
Forsyth v.
Humana,
(citation
omitted).
Inc.,
( 4)
114
These
this
undue
( 1)
316 F. 3d 10 4 8,
10 51
rule,
the
court
delay;
(2)
bad
generally
faith;
316 F. 3d at 1052
Page 4 - OPINION AND ORDER
(3)
prejudice to the opposing party.
F.3d
factors
1467,
are
1482
not
(9th Cir.
weighted
1997)
equally:
prejudice, alone, can justify the denial of a motion to amend.
Eminence,
(9th
In determining whether a motion to
under
and
Inc. ,
See
("consideration of prejudice to the
opposing party carries the greatest weight").
DISCUSSION
Plaintiff moved to amend his complaint over one year after he
initiated
this
lawsuit
and
several
weeks
after
defendant's
dispositive motion was filed.
In his proposed amended complaint
("PAC"),
(1)
plaintiff
seeks
to:
amend
his
existing
wrongful
discharge claim to allege a violation of the Fair Labor Standards
Act ("FLSA"); and (2) add retaliation claims under the FLSA and Or.
Rev. Stat. § 659A.199.
See Crispin Decl. Ex. A, 7-9.
Defendant opposes the PAC for three reasons.
First, defendant
argues that plaintiff's delay of more than one year in filing his
motion
constitutes
plaintiff
was
aware
undue
of
delay
facts
actually seeking amendment.
and
implies
underlying
bad
the
faith
PAC
long
Def.'s Opp'n to Mot. Am. 2-3.
because
before
Second,
defendant asserts that allowing the proposed amendments would be
prejudicial because discovery is complete and it has already filed
a summary judgment motion,
Id. at 4.
for which briefing is also complete.
Third, defendant contends that the proposed amendments
would be futile because plaintiff cannot establish a casual link
between the protected activity and his termination,
Rev. Stat. §659A.199 claim is untimely.
I.
and his Or.
Id. at 4-7.
Amendment Under Fed. R. Civ. P. 16
Plaintiff argues that waiting to seek amendment until over one
Page 5 - OPINION AND ORDER
year after filing the original complaint does not constitute undue
delay because he did not have a basis for his PAC "until he took
Stacy Nelson's deposition on October 3, 2013."
Am.
3.
Pl.'s Reply to Mot.
Specifically, plaintiff asserts that he did not find out
that defendant's actions were "motivated by retaliatory as well as
discriminatory considerations" until deposing Nelson.
To state a retaliation claim under the FLSA,
must allege that:
suffered
an
Id. at 14.
the plaintiff
( 1) he engaged in a protected activity;
adverse
employment
action;
and
(3)
the
( 2) he
adverse
employment action was causally related to the protected activity.
Hashimoto v. Dalton, 118 F.3d 671, 679 (9th Cir. 1997).
to establish a prima facie case under Or. Rev. Stat.
plaintiff "must show (1)
(2)
a
§
Similarly,
659A.199, a
[he] was engaging in a protected activity,
[he] suffered an adverse employment decision, and (3) there was
casual
link
between
employment decision."
the protected
Sandberg v.
602434, *7 (D.Or. Feb. 22, 2012)
At her October 3,
Coleman
was
plaintiff.
the
sole
Judge
activity
City of N.
decision-maker
Ex.
the
adverse
Plains,
2 012 WL
(citation omitted).
2013 deposition,
Decl.
and
B at
in
2-3.
Nelson stated that Matt
deciding
to
terminate
Additionally,
Nelson
provided testimony about plaintiff's whistle-blowing activities:
Q:
Do you recall a time that [plaintiff] made an
anonymous complaint about being asked to work off
the clock?
Page 6 - OPINION AND ORDER
A:
Yes.
Q:
Did his action in making that complaint play any
role in the decision to terminate his employment?
A:
I could say no, I could say yes,
it's not supposed to.
Q:
Okay.
What does that mean?
us, please.
A:
I mean, when an employee gets laid off or let go,
right, it's supposed to be based on what - the
situation at the moment.
Yes, [plaintiff] did an
anonymous call and we all got asked questions about
it and, yes, it ruffled a couple people's feathers
. . . I think a lot of it gave that bad vibe in the
mouth out of the gate, right.
No offense, I mean,
whenever you have that bad taste in your mouth, you
know .
Q:
So you think that it
decision to let him go?
A:
It could have given a different attitude of how
[plaintiff] is as a person.
I mean, I guess, does
that make sense? You know, when someone, you know,
complains about someone, it kind of gives the whole
perspective of how that employee is.
Q:
Did you ever hear
about that issue?
A:
Yes.
Q:
What did he say?
A:
Well,
mean,
No.
did
Matthew
right,
I
mean -
Elaborate on that for
play
a
Coleman
role
in
the
say anything
he didn't agree of it, he - you know - I
do I recall every word he said about that?
Page 7 - OPINION AND ORDER
Q:
A:
He didn't approve of it.
Q:
And he's one of tho people who had the bad taste in
his mouth.
A:
Id.
No,
Yes.
at
just your best recollection.
Thus,
4-6.
He didn't agree with it.
contrary to plaintiff's assertion,
Nelson's
testimony does not provide any basis to conclude that defendant
retaliated
against
plaintiff;
she
vaguely
speculates
that
plaintiff's anonymous report and participation in the investigation
could have played a role in defendant's decision to terminate him,
which was a fact already within plaintiff's knowledge.
Notably, at his May 23, 2013 deposition, plaintiff discussed
his whistle-blower report and defendant's ensuing actions.
Bernick Decl.
Ex.
1.
Plaintiff testified that:
( 1)
See
he made an
anonymous report about not being paid for all of the hours that he
worked;
( 2)
report;
(3) he felt he was being ostracized and receiving "crumby
assignments"
supervisors at his job site knew he had made such a
because
of
his
report
and
investigation into his complaint; and (4)
cooperation
during
the
he felt that he had to
comply with his supervisors' requests to work off the clock or he
would lose his job.
Id. at 2-3,
6, 8-9.
These occurrences were
sufficient to allow plaintiff to allege retaliation claims under
the FLSA and Or.
Rev.
Stat.
Page 8 - OPINION AND ORDER
§
659A.199 independent of Nelson's
deposition testimony.
See Hashimoto, 118 F.3d at 679;
Sandberg,
2012 WL 602434 at *7; see also Fed. R. Civ. P. 8 (a) (2).
Indeed, these facts are each within plaintiff's knowledge at
the time of his original complaint, as they relate to things that
were allegedly said or done by or to plaintiff.
' ' 15, 22,
37
("[l]ocal managers ostracized plaintiff because of
his participation in the investigation .
employment";
See, e.g., Compl.
"defendant
terminated
. and terminated his
plaintiff's
employment
in
substantial motivating part in retaliation for his requests for
reasonable accommodations") ;
Bank,
NA,
2013 WL 6055258,
motion to amend,
see also Boj orguaez v.
*3
(D.Or.
Nov.
7,
2013)
Wells Fargo
(denying a
sought on the basis of allegedly "new facts,"
where such "facts are each things that plaintiffs would have known
at the time of their original complaint, as they are things that
were allegedly done by or said to plaintiffs, such that there is no
excuse for plaintiffs'
failure to include these facts
in their
pleadings").
Therefore,
retaliatory
because plaintiff was long aware of a potential
motive
and
because
Nelson's
equivocal
deposition
testimony did not alter or add to plaintiff's knowledge of these
facts,
he failed to establish good cause.
See In re W.
States
Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir.
2013)
(" [t] he good cause standard typically will not be met where
the party seeking to modify the scheduling order has been aware of
Page 9 - OPINION AND ORDER
l
I
the facts and theories supporting amendment since the inception of
the action").
II.
For these reasons, plaintiff's motion is denied.
Amendment Under Fed. R. Civ. P. 15
Plaintiff contends defendant would not be prejudiced by the
PAC because it arises out of the same factual nexus as the original
complaint.
See Pl.'s Reply to Mot. Am.
7-8.
Further, plaintiff
asserts that his proposed Oregon statutory claim is not time barred
because the applicable statute of limitations,
659A.875,
allows
relation
15 (c) (1) (B) is satisfied.
back,
such
Id. at 12-13.
that
Or.
Rev.
Fed.
R.
Stat.
Civ.
§
P.
According to plaintiff,
the concept of fair notice to the opposing party is the main issue
and therefore the PAC should be allowed because defendant "was on
notice of the retaliatory motivation for Plaintiff's termination."
Id. at 15.
"Although delay is not a dispositive factor in the amendment
analysis, it is relevant .
. especially when no reason is given
for the delay."
Lockheed Martin Corp. v. Network Solutions, Inc.,
194
986
F.3d
980,
(9th
Cir.
1999)
(citations
omitted).
As
discussed above, plaintiff's motion was filed after defendant moved
for summary judgement.
Further, the PAC relies on facts that were
available to plaintiff since the inception of this lawsuit.
~'
2000)
Coleman v.
Quaker Oats Co.
232 F.3d 1271,
1295
See,
(9th Cir.
("late amendments to assert new theories are not reviewed
favorably when the facts and the theory have been known to the
Page 10 - OPINION AND ORDER
I
[
1
party
seeking
action")
amendment
since
the
inception
of
the
(citations and internal quotations omitted).
cause
of
Plaintiff's
delay of over one year in seeking to amend the complaint, despite
having the prior knowledge of the relevant facts,
weighs against
allowing the amendment.
According to defendant, plaintiff's delay in seeking amendment
is also "highly suspect and suggests bad faith."
Mot. Am. 3.
Def.'s Opp'n to
Even accepting plaintiff's assertion that he did not
know of a potentially retaliatory motive until Nelson's October 3,
2013 deposition, the fact remains that he waited over two months
and was granted an extension of time to oppose defendant's motion
for
summary
judgment
before
seeking
to
amend
his
complaint.
Nonetheless, the Court finds that there is no affirmative evidence
of bad faith outside of plaintiff's delay.
Prejudice may be found where additional claims are "raised at
the eleventh hour, after discovery [is] virtually complete and the
[defendant's] motion for summary judgment [is] pending before the
court."
Cir.
Roberts v. Ariz. Bd. of Regents,
1981).
661 F.2d 796,
(9th
Prejudice may also be found if the parties need to
reopen discovery or "have engaged in voluminous
discovery."
798
Kaplan v.
Rose,
49 F.3d 1363,
1370
and protracted
(9th Cir.
1994)
(citation and internal quotations omitted); Lockheed, 194 F.3d at
986.
As noted above, plaintiff waited until after discovery was
complete and defendant had moved for summary judgement to amend his
Page 11 - OPINION AND ORDER
complaint.
If plaintiff's motion is granted, defendant would also
need to "conduct further discovery from Plaintiff and others" on
the issue of retaliation.
Def.'s Opp'n to Mot. Am. 6.
Thus, this
factor weighs against allowing the proposed amendments.
Due to a
strong showing of delay and prejudice,
the Court
finds it unnecessary to address defendant's arguments concerning
futility,
but
nonetheless
notes
conflicting evidence on the
that
issue
the
parties
of who made
presented
the decision to
terminate plaintiff, why, and whether Coleman had prior knowledge
of plaintiff's whistle-blowing activities.
& D; Bernick Decl. Exs. 1-3.
See Judge Decl. Exs. B
Finally, the Court finds that the PAC
arises out of conduct set forth in plaintiff's original complainti.e. plaintiff initiated and cooperated with an investigation into
local management practices requiring employees to work without pay,
his managers
ostracized him for
his
participation,
ultimately terminated.
Compare Compl.
~~
43-52.
15, 21, 22,
Stat.
§
39, 40,
~~
and he was
15, 21, 22, 37, with PAC
Accordingly, plaintiff's Or. Rev.
659A.199 claim relates back to the original complaint and
is therefore not time barred.
In sum,
defendant,
the
and
See Fed. R. Civ. P. 15 (c) (1) (B).
PAC would cause
plaintiff
failed
undue
to
delay and prejudice to
establish
Accordingly, plaintiff's motion is denied.
Page 12 - OPINION AND ORDER
good
cause.
CONCLUSION
Plaintiff's motion to file an amended complaint (doc. 28) is
DENIED.
Plaintiff's
request
for
oral
argument
unnecessary.
IT IS SO ORDERED.
Dated this
3
day of Febrtior1 2014.
Ann Aiken
United States District Judge
Page 13 - OPINION AND ORDER
is
DENIED
as
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