Reaves v. Nexstar Broadcasting, Inc. et al
Filing
46
OPINION & ORDER: Plaintiff's motion for leave to amend 28 is denied. Signed on 5/23/2018 by Judge Marco A. Hernandez. (joha)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTOPHER M. REAVES,
No. 3:17-cv-00494-HZ
Plaintiff,
v.
NEXSTAR BROADCASTING, INC., a
Delaware corporation, and LIN TELEVISION
CORPORATION dba KOIN-TV, a Delaware
corporation,
Defendants.
Gene Mechanic
Whitney Stark
MECHANIC LAW FIRM
210 S.W. Morrison Street, Suite 500
Portland, Oregon 97204
Attorneys for Plaintiff
Thomas P. Busch
MacCOLL BUSCH SATO, P.C.
1020 S.W. Greenburg Road, Suite 600
Portland, Oregon 97223
1 - OPINION & ORDER
OPINION & ORDER
Charles W. Pautsch
Lisa A. Balocchi
PAUTSCH SPOGNARDI & BAIOCCHI LEGAL GROUP, L.L.P
342 N. Water Street, Suite 600
Milwaukee, Wisconsin 53202
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Christopher Reaves brings this employment discrimination action against
Defendants Nexstar Broadcasting, Inc. and LIN Television Corporation, dba KOIN-TV. In his
Complaint, Plaintiff raises disability discrimination claims under federal and Oregon statutes, an
Oregon statutory family leave claim, and an intentional infliction of emotional distress claim.
Plaintiff moves to amend his Complaint. I deny the motion.
BACKGROUND
The proposed amendments relate to the acquisition of LIN Television by Nexstar
Broadcasting and to the Oregon family leave claim. Thus, I recite the facts relevant only to those
issues. In the Complaint, Plaintiff first generally asserts that his termination by KOIN-TV
violated his rights under various employment discrimination statutes and constituted intentional
infliction of emotional distress. Compl. ¶ 1, ECF 1. He then alleges that he was employed by
KOIN-TV from April 23, 2012 until his October 16, 2015 termination. Id. ¶ 5. He further
alleges that "[i]n or about 2017, Nexstar Broadcasting acquired LIN Television Corporation dba
KOIN-TV." Id. ¶ 6. Defendants allegedly "did and continued to do business as KOIN-TV in
Portland, Oregon." Id.
In the proposed First Amended Complaint ("proposed FAC"), Plaintiff adds allegations
concerning Nexstar Broadcasting's acquisition of LIN Television Corporation in Paragraphs 52 - OPINION & ORDER
11. Prop. FAC, Pl.'s Mot to Amend, Ex. A, ECF 28-1. There, Plaintiff asserts that when he was
hired in 2012, KOIN-TV was owned by LIN Television Corporation which was a subsidiary of
LIN Media LLC. Id. ¶ 5. On or about December 19, 2014, LIN Media LLC merged with Media
General, Inc. and LIN Television Corporation became a subsidiary of Media General, Inc. Id.
On or about January 27, 2017, Nexstar Broadcasting, through Nexstar Media Group, Inc.,
entered into an "Agreement and Plan of Merger" with Media General, Inc. Id. ¶ 7.1 This merger
agreement provided that all of the claims, obligations, liabilities, debts, and duties of the merged
entities Nexstar Media Group, Inc. and Media General, Inc., shall become the claims, obligations
liabilities, debts, and duties of the surviving corporation. Id.
Further, Plaintiff alleges, on or about January 11, 2017, the Federal Communications
Commission (FCC) issued an order transferring the control applications and licenses of KOINTV and other Media General, Inc. television stations to Nexstar Media, Inc. Id. ¶ 8. On or about
January 27, 2017, the merger was completed. Id. On or about April 19, 2017, Nexstar filed a
"Voluntary Statement of Foreign Merger" with the Oregon Corporation Division stating the
"Name of Surviving Entity" as Nexstar Broadcasting, Inc., and the "Name of Non-Surviving
Entity" as LIN Television Corporation. Id. Finally, in regard to this issue, Plaintiff alleges that
Defendant Nexstar Broadcasting is a successor to Defendant LIN-TV and Media General, Inc.,
and is liable for all of the acts and omissions of LIN-TV and Media General, Inc. alleged by
Plaintiff in the Proposed FAC. Id. ¶ 11.
As to the family leave claim brought under the Oregon Family Leave Act, Oregon
1
The Proposed FAC states the date as January 27, 2016, but Plaintiff clarifies in his
Reply Memorandum that the correct date is January 27, 2017. Pl.'s Reply Mem. 4 n.2, ECF 33.
3 - OPINION & ORDER
Revised Statutes §§ (O.R.S.) 659A.150-659A.186 (OFLA), the caption of Plaintiff's Complaint
indicates that it contains a claim under the "Oregon Family Medical Leave Act, ORS 659A.150
et seq." Compl. p. 1. The caption of Plaintiff's Ninth Claim for Relief in the original Complaint
reads: "Violation of Oregon Family Leave Act, ORS 659A.183 and violation of ORS 659A.199Retaliation." Compl. ¶ 70 (caption above paragraph number). Plaintiff re-alleges the prior
factual paragraphs. Id. (re-alleging Paragraphs 1-29). Plaintiff then alleges in pertinent part that
Defendants committed an unlawful practice under OFLA, "ORS 659A.183, by discriminating
and retaliating against Plaintiff because he requested and took family medical leave." Id. ¶ 71.
In the proposed FAC, the renumbered factual background allegation paragraphs contain
no notable content changes. Prop. FAC ¶¶ 12-32. The caption to the Ninth Claim for Relief has
been changed to omit the reference to O.R.S. 659A.199. Id. ¶ 74 (caption above paragraph). It
now reads: "Violation of Oregon Family Leave Act, ORS 659A.183 Retaliation and
Discrimination." Id. Plaintiff also incorporates the previously recited factual background
allegations and then alleges that Defendants committed an unlawful practice under OFLA, "ORS
659A.183, by discriminating and retaliating against Plaintiff because he requested and took
family medical leave, including interfering with the exercise of his rights under OFLA." Id. ¶¶
74, 75.
STANDARDS
This case was filed March 27, 2017. Almost four months later, on July 14, 2017, the
Court conducted a case scheduling conference pursuant to Federal Rule of Civil Procedure 16.
ECF 19. The Court established various case deadlines including a deadline requiring that all
pleadings be due on December 1, 2017, and a deadline to join all claims, remedies, and parties by
4 - OPINION & ORDER
January 5, 2018. Id. Because the motion to amend was filed on March 21, 2018, it was filed
after the deadline to amend all pleadings.2
When a party seeks leave to amend under Rule 15 after the date specified in the
scheduling order, the district court must first determine whether that party has shown "good
cause" for amending the scheduling order under Rule 16(b). Branch Banking & Tr. Co. v.
D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017); Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 609 (9th Cir. 1992). "Rule 16(b)'s 'good cause' standard primarily considers the
diligence of the party seeking the amendment. The district court may modify the pretrial schedule
'if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Johnson,
975 F.2d at 609 (quoting Fed. R. Civ. P. 16 Advisory Committee's notes (1983 amendment)). If
the moving "'party was not diligent, the inquiry should end.'" Branch Banking & Trust Co., 871
F.3d at 764 (quoting Johnson, 975 F.2d at 607-08). On the other hand, if "good cause" is shown,
"the party must demonstrate that amendment was proper under Rule 15." Johnson, 975 F.3d at
608.
Additionally, this Court's Local Rule of Civil Procedure 16-3 further requires a party
seeking to modify a scheduling order to: (1) show good cause why the deadlines should be
modified; (2) show effective prior use of time; (3) recommend a new date for the deadline in
question; and (4) show the impact of the proposed extension on other existing deadlines, settings,
or schedules. L.R. 16–3.
A party may move for leave to amend pleadings under Rule 15(a). Fed. R. Civ. P. 15(a).
2
Although the Minute Order used the phrase "All pleadings are due 12/1/2017," instead
of "All amended pleadings are due 12/1/2017," there can be no ambiguity that the Minute Order
established a December 1, 2017 deadline for filing amended pleadings or seeking leave to do so.
5 - OPINION & ORDER
"A district court shall grant leave to amend freely when justice so requires." Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (internal quotation marks omitted).
"[T]his policy is to be applied with extreme liberality." Id. (internal quotation marks omitted).
Courts consider the following four factors in determining whether to grant leave to amend: "bad
faith, undue delay, prejudice to the opposing party, and/or futility." Id. (internal quotation marks
omitted).
DISCUSSION
I. Allegations Regarding Nexstar's Aquisition of LIN Television
Defendants responded to Plaintiff's First Request for Production of Documents (RFP) on
August 29, 2017. Mechanic Mar. 21, 2018 Decl. ¶ 3, ECF 29. In RFP #9, Plaintiff sought
documents sufficient to identify the ownership of KOIN-TV at the time of Plaintiff's termination
in October 2015. RFP #9; Mechanic Mar. 21, 2018 Decl., Ex. 1 at 7, ECF 29-1. Defendant's
response to the RFP included a statement that Defendants "have admitted that Lin Television was
the owner of KOIN-TV at that time." Id.
In RFP #10, Plaintiffs sought documents "sufficient to identify the date that Nexstar
became the owner of KOIN-TV, including the purchase agreement and other documents showing
the terms of Nexstar's purchase of KOIN-TV." Id.3 Defendants responded in part by stating that
"such documents are a matter of public record and as such [are] available on the FCC website,
such public records showing without dispute that Nexstar Broadcasting, Inc. became the owner
3
The phrasing of this RFP is a bit unclear. It starts by seeking documents showing the
date Nexstar became KOIN-TV's owner. But, it continues with what could be viewed as a
broader request by referring to the purchase agreement and other documents showing the terms
of the purchase and which may or may not show the date Nexstar became KOIN-TV's owner.
6 - OPINION & ORDER
of KOIN-TV on January 26, 2017." Id.
Plaintiff's attorney Gene Mechanic states that from his search of the FCC website, the
specific merger history and terms were not apparent. Mechanic Mar. 21, 2018 Decl. ¶ 4.
Mechanic provides no information about what information was available on the FCC website or,
correspondingly, what information relevant to Plaintiff's RFP #10 was unavailable on the FCC
website.
Plaintiff notes that Defendants produced no government filings or documents to Plaintiff,
despite his request for them, relating to Nexstar's ownership of KOIN-TV. Id. ¶ 3.4 Instead,
Plaintiff states that he has discovered relevant documents through his own research. Id. Plaintiff
provides no information about what this research entailed, who performed it, or when it was
performed. He identifies two documents he asserts are relevant to RFP #10 which Plaintiff
presumably discovered as a result of his own research. One is an April 19, 2017 filing with the
Oregon Corporation Division stating the "Name of Surviving Entity" as Nexstar Broadcasting,
Inc. and the "Name of the Non-Surviving Entity" as LIN Television Corporation. Id., Ex. 3, ECF
29-3. The other is a 2017 10-K Form filed by Nexstar Media Group with the United States
Securities & Exchange Commission (SEC), on March 1, 2018. Id., Ex. 2, ECF 29-3. It notes
that on January 17, 2017, Nexstar Media Group completed its merger with Media General, Inc.,
which owned, operated, or serviced "78 full power television stations in 48 markets[.]" Id. at 4.
It also shows ownership of KOIN-TV by Nexstar Media Group. Id. at 5.
Other than these two documents, Plaintiff provides no other information about what
4
Plaintiff does not identify any particular RFP in which these documents were sought.
The Court's own review of the RFP attached to Mechanic's Declaration indicates that RFP #10 is
the RFP at issue.
7 - OPINION & ORDER
evidence he obtained through his own research or what other documents are relevant or
responsive to RFP #10. Plaintiff does not show that counsel followed-up with Defendants'
counsel regarding RFP #10 either by letter, email, or telephone, indicating that Plaintiff found
Defendants' response inadequate or unresponsive.
Mechanic states that in January 2018, he and Defendants' counsel Charles Pautsch began
discussing whether Nexstar would stipulate to its liability for any unlawful acts by LIN-TV.
Mechanic Mar. 21, 2018 Decl. ¶ 4; see also Pl.'s Mot. at 7, ECF 28. Plaintiff suggests that this
discussion was to avoid unnecessary discovery and litigation on that issue. Pl.'s Mot. at 7.5
Plaintiff's counsel did not follow-up these conversations until February 19, 2018 when he sent an
email to Pautsch proposing a stipulation in which the parties would agree that although Nexstar
continued to deny liability, it was liable for any findings of liability and damages in Plaintiff's
favor as a result of the actions of KOIN-TV and its previous owner Media General, Inc.
Mechanic Decl. ¶ 4; Id., Ex. 4 at 4, ECF 29-4. Pautsch responded several days later, noting that
in an earlier discussion with Mechanic, Pautsch had already told Mechanic that a corporate
deposition to secure documents related to the merger transaction whereby Nexstar acquired
Media General was unnecessary because those documents could be found on the FCC's website.
Id. Pautsch told Mechanic that the FCC documents should provide Plaintiff with the necessary
material to determine if liability attached to Nexstar for the acts of Media General and its
5
At this time, fact discovery was to have been completed by January 5, 2018. See July
14, 2017 Min. Ord., ECF 19. At some point unknown to the Court, the parties informally agreed
to extend the fact discovery deadline to February 19, 2018. See Jt. Mot. to Extend Deadlines ¶ 2,
ECF 25. Later, on February 22, 2018, the Court extended deadlines for expert discovery and
dispositive motion deadlines, but it did not further extend the fact discovery deadline. Feb. 22,
2018 Min. Ord, ECF 26.
8 - OPINION & ORDER
predecessors. Id. Pautsch made clear that "[w]e will not stipulate to that." Id. Mechanic
followed up that same day, indicating that he had a slightly different memory of the conversation
regarding the Rule 30(b)(6) corporate deposition but in any event, he noted that he would
consider Pautsch's response further and in the meantime, wondered if Defendants would stipulate
to the authenticity of attached FCC and SEC filings. Id. at 2-3. On March 16, 2018, after
returning to the office following the death of a family member, Pautsch responded that
Defendants would stipulate to the authenticity of the government filings. Id. at 1.
Plaintiff argues that he acted diligently in regard to the merger issue because he engaged
in good faith efforts to reach a stipulation concerning Nexstar's liability and undertook his own
research to confirm the history and terms of the merger and confirmation from Defendants
regarding that evidence. Plaintiff contends that those matters were not resolved until the week
before he filed his motion to amend. He states that "although earlier government filings that
defendants declined to produce to plaintiff refer to the merger, Nexstar's 2017 SEC 10-K form
was filed on March 1, 2018, stating that KOIN-TV was included in the 2017 merger." Pl.'s Mot.
at 11; see also id. at 6 (in regard to Rule 15(a) undue delay inquiry, Plaintiff argues that
"defendants' failure to produce any documents relating to its ownership of KOIN-TV or
otherwise inform plaintiff of the status or terms of the merger, renders their argument that there
was undue delay in plaintiff raising more specific facts relating to Nexstar's successor liability
disingenuous.").
I reject Plaintiff's argument and find that he did not act diligently in pursuing information
related to the merger. As indicated above, after receiving Defendants' response to RFP #10 in
August 2017, Plaintiff never initiated a conversation with Defendants in any form about that
9 - OPINION & ORDER
response. Plaintiff never indicated that the response was inadequate or insufficient. Plaintiff
never indicated that information he sought was not in fact located on the FCC website. Plaintiff
never objected to Defendants having directed Plaintiff to public sources instead of providing the
documents to Plaintiff directly. Plaintiff never initiated a more formal conferral conversation
suggesting that he would seek to compel Defendants to respond to RFP #10. Plaintiff never filed
a motion to compel a response to RFP #10.
Moreover, the document from the Oregon Corporation Division was available in April
2017, almost one year before the filing of the motion to amend. Plaintiff states that Nexstar's
SEC filing was not available until March 2018, and that it showed that KOIN-TV was included
in the 2017 merger. But, Defendants' response to RFP #10 admitted that Nexstar became the
owner of KOIN-TV on January 26, 2017. Thus, Plaintiff possessed that information as of
August 2017.
Finally, Plaintiff waited until after the date to amend pleadings to pursue a stipulation
about Nexstar's liability. Then, it was only after Plaintiff failed to obtain the desired liability
stipulation that he moved to amend.
Plaintiff failed to promptly pursue production of what he considered relevant documents
directly from Defendants. Plaintiff fails to explain how he used his time between August 2017
and the December 1, 2017 date to amend pleadings to obtain information that might be relevant
to amend his claim. Plaintiff fails to show why the March 1, 2018 SEC 10-K filing gave him
information he did not already possess rather than provide documentary support for previouslyacquired information. As a result, Plaintiff cannot satisfy the first hurdle under the Rule 16(b)
good cause inquiry. As noted above, if the moving "'party was not diligent, the inquiry should
10 - OPINION & ORDER
end.'" Branch Banking & Trust Co., 871 F.3d at 764.
Nonetheless, I am unconvinced that the proposed additional allegations regarding the
merger actually matter. Both Nexstar Broadcasting and LIN Television are already named
Defendants. Plaintiff already alleges that Nexstar acquired LIN Television in 2017 and that
Defendants did and continued to do business as KOIN-TV. The original Complaint also alleges
that Plaintiff's administrative complaint filed with the Oregon Bureau of Labor and Industries
(BOLI) was filed against "Defendants," referring to both Nexstar and LIN Television. Compl. ¶
29. All claims in the original Complaint appear to be brought against both Defendants.
In his motion, Plaintiff himself states that "these amendments do not even raise new legal
claims or theories, but provide a more specific factual framework to the already alleged legal
claims and theories." Pl.'s Mot. 8. Plaintiff continues: "these amendments do no more than
provide a more specific factual framework to the already existing legal claims against Nexstar
and LIN-TV." Id. at 9. The allegations regarding "the corporate merger resulting in Nexstar
becoming the successor to LIN-TV . . . merely shed further light on the corporate background
that supports plaintiff's already existing claims that Nexstar is liable for the damages caused by
KOIN-TV's discriminatory and retaliatory conduct against plaintiff." Id.; see also id. at 11
("plaintiff's amendments are intended to make the complaint's allegations more direct with
respect to his already existing legal claims, but otherwise add[] nothing new."); Pl.'s Reply 1
("motion for leave . . . makes modest changes to the Complaint to conform to the evidence
developed through discovery and provide more specificity as the parties move toward trial."); id.
at 2 ("The primary reason Plaintiff seeks to amend the complaint is to provide additional detail
regarding the merger between the Defendant entities[.]").
11 - OPINION & ORDER
As Plaintiff's assertions recognize, the proposed additional allegations provide more
detailed facts regarding the relationship between the two Defendants. But, the facts in the
original Complaint sufficiently raise the legal issue of Nexstar's successor liability for conduct by
LIN Television Corporation. Given that the liability issue is sufficiently raised in the original
Complaint, Plaintiff is not precluded from supporting or opposing arguments related to Nexstar's
liability with the facts he seeks to assert in his proposed FAC.
II. Allegations Regarding OFLA Claim
As indicated above, Plaintiff's Ninth Claim for Relief in the original Complaint expressly
cited "ORS 659A.183" and "ORS 659A.199-Retaliation" as the statutory bases for his OFLA
claim. Compl. ¶ 70 (caption above paragraph number). Then, after re-alleging all factual
background paragraphs, Plaintiff alleged that Defendants violated OFLA, "ORS 659A.183," but
with no mention of O.R.S. 659A.199, by "discriminating and retaliating against Plaintiff because
he requested and took family medical leave." Id. ¶ 71.
In the proposed FAC, he seeks to delete the reference to O.R.S. 659A.199 in the caption
of the Ninth Claim for Relief and add a reference in that caption to discrimination while leaving
the reference to retaliation. Prop. FAC ¶ 74 (caption above paragraph number). The proposed
FAC also seeks to insert language alleging that Defendants committed an unlawful practice under
OFLA, "ORS 659A.183, by discriminating and retaliating against Plaintiff because he requested
and took family medical leave, including interfering with the exercise of his rights under OFLA."
Id. ¶ 75 (proposed new language emphasized).
The only basis Plaintiff offers for failing to amend the OFLA claim before the December
1, 2017 deadline for amendment of pleadings, is that "plaintiff took depositions of KOIN-TV
12 - OPINION & ORDER
witnesses in January 2018 . . . that confirmed that defendant had engaged in both retaliation and
interference (or discrimination) under OFLA." Pl.'s Mot. 11; see also Pl.'s Mot. 8 (arguing that
there was no undue delay under Rule 15 because "defendants' witnesses were deposed in January
2018 and other discovery occurred."). Although in his Reply, Plaintiff argues that the
amendments to the OFLA claim are "diligent because they simply provide further clarity[,]" Pl.'s
Reply 3, I find this unpersuasive. In fact, that contention suggests just the opposite: if the
proposed amendments only clarify the existing allegations, they could have been made before the
deadline for amendment expired.
Plaintiff fails to provide any details regarding the discovery obtained after the amendment
deadline which Plaintiff asserts led to the "clarifying" allegations. He does not set forth who was
deposed, when the deposition(s) occurred, and what facts were obtained that were not already
known. He does not show how he otherwise attempted to obtain information related to the
OFLA claim by other discovery methods and why these were not pursued before the December 1,
2017 amendment deadline. Additionally, he states that the January 2018 depositions "confirmed"
the basis for his OFLA claims. This suggests that the information he obtained was not newly
discovered, creating an inference that he was not diligent in seeking to amend the Complaint
earlier. Without more, Plaintiff fails to show that he acted diligently in regard to the proposed
new OFLA claim allegations and thus he has had not meet the good cause standard under Rule
16(b).
///
///
///
13 - OPINION & ORDER
CONCLUSION
Plaintiff's motion for leave to amend [28] is denied.
IT IS SO ORDERED.
Dated this
day of
Marco A. Hernandez
United States District Judge
14 - OPINION & ORDER
, 2018
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