Conca v. RJ Lee Group Inc et al

Filing 25

ORDER GRANTING MOTION TO AMEND, DENYING AS MOOT MOTION TO STRIKE, AND GRANTING IN PART AND DENYING WITH LEAVE TO RENEW IN PART MOTION TO DISMISS - GRANTED in part and DENIED in part 4 Motion to Dismiss for Failure to State a Claim; DENIED as moot 17 Motion to Strike ; granting 22 Motion to Amend/Correct. All claims against Jane Doe (Sandra) Lee and Jane Doe (Patricia) James are DISMISSED without prejudice. Signed by Senior Judge Edward F. Shea. (VR, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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No.

JAMES L. CONCA,

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Plaintiff,

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4:15-CV-5017-EFS

ORDER GRANTING MOTION TO AMEND,
DENYING AS MOOT MOTION TO STRIKE,
AND GRANTING IN PART AND DENYING
WITH LEAVE TO RENEW IN PART
MOTION TO DISMISS

v.
RJ LEE GROUP INC., ET AL.,

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Defendants.

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Before the Court, without oral argument, are Defendants Richard

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Lee, Sandra Lee, David James, and Patricia James's Motion to Dismiss,

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ECF No. 4; Defendants’ Motion to Strike, ECF No. 17; and Plaintiff

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James

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individual Defendants1 asked the Court to dismiss all claims against

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them with prejudice.

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dismiss and filed a declaration “to describe Dr. Richard J. Lee and

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Mr. David K. James’ contacts with Washington State.”

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13-1.

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sought to introduce factual assertions not in the complaint and not

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related to personal jurisdiction.

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filed a motion to amend his complaint to incorporate his declaration

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and to add additional factual allegations regarding his wage claim.

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1

L.

Conca's

Motion

to

Amend

ECF No. 4.

Complaint,

ECF

No.

22.

The

Plaintiff opposed the motion to

ECF Nos. 13 &

Defendants moved to strike Plaintiff’s declaration because it

ECF No. 17.

In response, Plaintiff

RJ Lee Group, Inc., the corporate Defendant, is not joined in the motion to
dismiss, and instead filed an answer to the complaint. ECF Nos. 4 & 5.

ORDER - 1

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ECF No. 22.

Defendants oppose the motion to amend, arguing that the

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proposed amended complaint fails to cure the deficiencies raised in

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Defendants’ motion to dismiss and thus amendment would be futile.

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No. 24.

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the Court is fully informed and grants the motion to amend, denies as

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moot the motion to strike, and grants in part and denies with leave to

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renew in part the motion to dismiss.

Having reviewed the pleadings and the file in this matter,

I.

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A.

ECF

MOTION TO AMEND COMPLAINT

Legal Standard
Federal

Rule

of

Civil

Procedure

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governs

amendment

of

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pleadings.

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pleading is served] only with the opposing party’s written consent or

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the court’s leave.

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requires.”

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pleadings is “to facilitate a proper decision on the merits,” Conley

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v. Gibson, 355 U.S. 41, 48 (1957), Rule 15 is to be applied with

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“extreme liberality,” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1052 (9th Cir. 2003) (quoting Morongo Band of Mission Indians v.

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Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)).

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burdensome impediments should not be erected during the litigation

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process.

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“A party may amend its pleading . . . [after a responsive

Fed.

The court should freely give leave when justice so
R.

Civ.

P. 15(a).

Given

that

the

purpose

of

Furthermore, formal and

Id.

The following guidance was provided to district courts by the
Supreme Court in Foman v. Davis, 371 U.S. 178 (1962):
In the absence of any apparent or declared reason--such as
undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,

ORDER - 2

futility of amendment, etc.--the leave sought should, as
the rules require, be “freely given.”

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Id. at 182; see also Desertrain v. City of Los Angeles, 754 F.3d 1147,
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1154 (9th Cir. 2014) (“Five factors are taken into account to assess
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the propriety of a motion for leave to amend: bad faith, undue delay,
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prejudice to the opposing party, futility of amendment, and whether
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the plaintiff has previously amended the complaint.”).
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The Ninth Circuit has clarified that not all of the factors
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merit equal weight.

Eminence Capital, LLC, 316 F.3d at 1052; United

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States v. Webb, 655 F.2d 997, 980 (9th Cir. 1981); Hurn Ret. Fund
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Trust of Plumbing, 648 F.2d 1252, 1254 (9th Cir. 1981).

In fact,

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prejudice

to

the

opposing

party

is

given

the

most

consideration,

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Eminence Capital, LLC, 316 F.3d at 1052, while delay alone is an
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insufficient reason to deny the motion to amend.

Loehr v. Ventura

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County Cmty. Coll. Dist., 743 F.2d 1310, 1319-20 (9th Cir. 1984).
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“Absent prejudice, or a strong showing of any of the remaining Foman
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factors, there exists a presumption under Rule 15(a) in favor of
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granting leave to amend.”

Eminence Capital, LLC, 316 F.3d at 1052;

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see Howey v. United States, 481 F.2d 1187 (9th Cir. 1973).
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B.

Analysis

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An analysis of the above factors reveals no reason why leave to
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amend should not be given in this case.

Plaintiff’s proposed amended

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complaint incorporates the content of Plaintiff’s declaration (¶ 21)
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and adds three paragraphs of allegations (¶¶ 33–35) but is otherwise
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identical to Plaintiff’s original complaint.

Compare ECF No. 22-1

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with ECF No. 1-2.
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ORDER - 3

Plaintiff’s amended complaint does not add new

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claims or defendants.

ECF No.

22-1.

This is Plaintiff’s first

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request to amend his complaint.

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There is no evidence that Plaintiff’s motion is brought in bad faith

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or that Defendants will be prejudiced by the amendment.

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No. 24.

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notice of removal, ECF No. 20, so it is equitable that Plaintiff also

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be given a chance to amend his pleading.

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amendment

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Furthermore, Plaintiff has not unduly delayed his motion—this case was

See Desertrain, 754 F.3d at 1154.

See id; ECF

In fact, Defendants recently received leave to amend their

would

be

futile.

See

The Court does not find that

Desertrain,

754

F.3d

at

1154.

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filed in February 2015 and discovery has not yet commenced.

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In sum, the Court finds that the Foman/Desertrain factors weigh in

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favor of amendment and grants Plaintiff’s motion to amend.
Plaintiff is to promptly file an amended complaint.

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See id.

For clarity

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and the ease of the parties and the Court going forward, Plaintiff is

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not to incorporate his declaration by reference but rather is to

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incorporate

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itself, in conformance with Federal Rules of Civil Procedure 8 and 10.

the

allegations

II.

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contained

therein

into

the

complaint

MOTION TO STRIKE

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Defendants move to strike Plaintiff’s Declaration, ECF No. 13-1,

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arguing that the declaration impermissibly seeks to introduce facts

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not in the complaint to avoid a finding that Plaintiff has not stated

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a claim.

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Plaintiff to amend his complaint to incorporate the contents of his

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declaration, Defendants’ motion to strike is denied as moot.

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//

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/

ORDER - 4

ECF No. 17.

In light of the Court’s ruling above permitting

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III. DEFENDANTS’ MOTION TO DISMISS MRS. LEE AND MRS. JAMES

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Defendants Jane Doe (Sandra) Lee and Jane Doe (Patricia) James

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are named in the caption of the complaint, but neither the complaint

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nor the proposed amended complaint contains allegations against them.

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Complaint, ECF No. 1-2; Proposed Amended Complaint, ECF No. 22-1.

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Additionally, there is no allegation that Mrs. Lee or Mrs. James has

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any contact with Washington, and there is no evidence that Mrs. Lee

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and Mrs. James were personally served with process.

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Washington, 326 U.S. 310, 316 (1945) (requiring that a defendant have

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“minimum contacts” with a jurisdiction in order for the jurisdiction

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to have personal jurisdiction over the defendant); Fed. R. Civ. P.

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4(m) (providing the time limit for service of process).

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the Court will dismiss the claims against them unless it finds that

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they

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Court’s jurisdiction, and served as part of their respective marital

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communities.

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have

been

properly

included

in

this

suit,

See Int’l Shoe v.

Therefore,

subjected

to

the

The Court finds that Mrs. Lee and Mrs. James are not properly

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included in this suit solely as members of a marital community.

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and Mrs. Lee and Mr. and Mrs. James are domiciled in Pennsylvania,

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which is not a community property state.

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Super. 563, 572 (Pa. Super. Ct. 1979) (“[T]he concept of ‘community

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property’ is repugnant to the law of Pennsylvania”).

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Dr. Lee and Mr. James undertook business acts in Washington does not

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mean they are members of a marital community under Washington law,

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particularly when there are no allegations that their spouses took any

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ORDER - 5

Dr.

Everson v. Everson, 264 Pa.

The fact that

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action in or have any connection to Washington.2

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President Lines, Ltd., No. C08-1606MJP, 2009 WL 367209, at *1–2 (W.D.

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Wash.

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spouse could not be sued solely to access any community property

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because the defendant and his wife resided in a non-community-property

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state and so possessed no community property).

Feb.

There

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10,

are

2009)

also

(unpublished)

no

allegations

(holding

that

See Powell v. Am.

that

the

Lees

the

or

defendant’s

the

Jameses

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possess any assets in which Washington has a significant interest that

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could be community property.

See Brookman v. Durkee, 46 Wn. 578, 583

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(1907) (“[W]e are clear that personal property acquired by either

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husband or wife in a foreign jurisdiction, which is by law of the

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place where acquired the separate property of one or the other of the

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spouses, continues to be the separate property of that spouse when

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brought

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McKinley Fence Co., Inc., 97 Wn. App. 191, 196–97 (Wn. Ct. App. 1999)

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(“[W]hen management of community property is at issue, the state with

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the

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spouses

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individually and because there is no marital community that may be

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sued or community property that may be sought, the Court dismisses all

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claims against Mrs. Lee and Mrs. James without prejudice and grants

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the motion to dismiss in this regard.

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//

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/

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within

most

this

significant
reside.”).

state.”);

interests
Because

G.W.

is
there

Equip.

typically
are

no

Leasing,

the

Inc.

state

claims

v.

where

against

Mt.

the
them

The complete lack of allegations that Mrs. Lee and Mrs. James personally
availed themselves of the laws of Washington also raises a significant
concern that the Court lacks personal jurisdiction over them.
See Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472–75 (1985).

ORDER - 6

IV.

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REMAINDER OF DEFENDANTS’ MOTION TO DISMISS

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Because the Court grants Plaintiff leave to amend his complaint,

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the remainder of Defendants’ motion to dismiss is denied with leave to

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renew.

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wish to renew their motion to dismiss, they may do so.

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motion must identify with specificity which portions of the amended

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complaint Defendants seek to dismiss and articulate the legal bases

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for doing so.

If, after reviewing Plaintiff’s amended complaint, Defendants

V.

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The

Court

notes

However, their

REMINDER TO THE PARTIES
that

the

motions

practice

thus

far

in

this

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litigation has not been the most efficient use of the parties’ and the

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Court’s resources.

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subsequent motion to amend has obviated all or part of a decision on

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the prior motion.

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other and to act consistent with Local

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litigation forward efficiently.

Twice already a motion has been briefed and then a

The parties are encouraged to confer with each

VI.

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Rule 83.1(k) to move

the

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED:

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1.

Plaintiff’s

Motion

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GRANTED.

Plaintiff

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complaint

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herein.

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2.

Amend
is

conforms

to
to

Complaint,

ECF

No.

22,

promptly

file

an

amended

the

requirements

set

is

forth

Defendants’ Motion to Strike, ECF No. 17, is DENIED AS
MOOT.

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that

to

3.

Defendants’ Motion to Dismiss, ECF No. 4, is GRANTED IN
PART (all claims against Mrs. Lee and Mrs. James dismissed

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ORDER - 7

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without prejudice) and DENIED IN PART WITH LEAVE TO RENEW

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(remainder).

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4.

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claims

against

Jane

Doe

(Sandra)

Lee

and

Jane

Doe

(Patricia) James are DISMISSED without prejudice.

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All

IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

21st

day of April 2015.

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s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2015\5017.am.compl.dismiss.wives.lc2.docx

ORDER - 8