Michael Neely v. The Boeing Company Inc
Filing
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ORDER granting Plaintiff's 45 Motion for Leave to File to file Second Amended Complaint. Plaintiff shall file his proposed amended complaint, filed as Docket No. 49 , within twenty days of the date of this order. Signed by Judge Richard A Jones. (TH)
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THE HONORABLE RICHARD A. JONES
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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MICHAEL NEELY,
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Plaintiff,
Case No. 16-01791-RAJ
v.
THE BOEING COMPANY,
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ORDER
Defendant.
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This matter comes before the Court on Plaintiff’s Motion for Leave to File
Second Amended Complaint. Dkt. # 45.
Plaintiff filed his original Complaint in the Central District of California on July
7, 2016. Dkt. # 1. Plaintiff filed a First Amended Complaint on September 15, 2016.
Dkt. 14. Defendant then filed a motion to transfer on October 12, 2016. Plaintiff’s case
was transferred to this Court on November 18, 2016. Dkt. ## 17, 25. On March 28,
2017, the parties filed a Joint Status Report. In the Joint Status Report, Plaintiff stated
that he intended to file a Second Amended Complaint. Dkt. # 43. On May 18, 2017,
Plaintiff filed this Motion. Dkt. # 45.
Amendment to pleadings is governed by Federal Rule of Civil Procedure 15(a).
Rule 15(a) “provides that a party’s right to amend as a matter of course terminates 21
days after service of a responsive pleading or 21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B). “In all other
ORDER - 1
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cases, a party may amend its pleading only with the opposing party’s written consent or
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the court’s leave. The court should freely give leave when justice so requires.” Fed. R.
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Civ. P. 15(a)(2). “In exercising this discretion, a court must be guided by the
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underlying purpose of Rule 15 to facilitate a decision on the merits, rather than on the
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pleadings or technicalities.” Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir.
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1991); United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Further, the policy of
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favoring amendments to pleadings should be applied with “extreme liberality.”
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DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).
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Against this extremely liberal standard, the Court may deny leave to amend after
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considering “the presence of any of four factors: bad faith, undue delay, prejudice to the
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opposing party, and/or futility.” Owens v. Kaiser Foundation Health Plan, Inc.,
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244 F.3d 708, 712 (9th Cir. 2001). But “[n]ot all of the factors merit equal weight ... it
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is the consideration of prejudice to the opposing party that carries the greatest weight.”
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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent
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prejudice, or a strong showing of any of the remaining [ ] factors, there exists a
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presumption under Rule 15(a) in favor of granting leave to amend.” Id. The party
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opposing amendment bears the heavy burden of overcoming this presumption.
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DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
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Defendant argues that Plaintiff has failed to perfect service in accordance to
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Federal Rule of Civil Procedure 4 and that Plaintiff’s Second Amended Complaint
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cannot relate back to his original Complaint. Defendant also argues that Plaintiff’s
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Second Amended Complaint contains new allegations of retaliation under the Age
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Discrimination in Employment Act of 1967 (“ADEA”) and that the statute of limitations
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has passed on that claim. Defendant requests that Plaintiff’s original Complaint and
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First Amended Complaint be struck under Federal Rule of Civil Procedure 4(m), or in
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the alternative, that Plaintiff’s ADEA retaliation claim be struck from the Second
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Amended Complaint.
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Plaintiff filed his original Complaint one month after he received the EEOC’s
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right-to-sue notice, which was well within the 90-day statute of limitations. The
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Complaint specifically refers to the ADEA and makes allegations of retaliation 1.
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Dkt. # 1 ¶¶ 28-30. Thus, Defendant had notice that Plaintiff intended to make
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allegations of retaliation under the ADEA. As these claims are not new, at issue is
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whether Plaintiff’s Amended Complaints can relate back to his original Complaint
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because it was not properly served.
Upon review of the record, it is clear Plaintiff failed to properly serve his original
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Complaint. Federal Rule of Civil Procedure 4(m) requires the Defendant to be served
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within 120 days after the complaint is filed. Fed. R. Civ. P. 4(m). Plaintiff did not
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serve Defendant until after he filed his First Amended Complaint on September 15,
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2016. Dkt # 14. When deciding whether to dismiss a complaint for a plaintiff’s failure
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to timely serve, the Court can consider the prejudice that would be suffered by that
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plaintiff. Lemoge v. United States, 587 F.3d 1188, 1195 (9th Cir. 2009). A dismissal
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for untimely service is required to be a dismissal without prejudice. United States v.
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2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc.,
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366 F.3d 767, 772 (9th Cir. 2004). When the applicable statute of limitations would bar
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the re-filed action, a dismissal without prejudice would effectively become a dismissal
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with prejudice. Id. Under circumstances such as these, prejudice to Plaintiff is an
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important consideration. See id. at 1196.
Dismissal of Plaintiff’s original Complaint for failure to serve Defendant would
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bar Plaintiff from filing his ADEA claim would cause Plaintiff to suffer substantial
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prejudice. In contrast, Defendant has not shown that it was prejudiced by this failure.
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As noted in Defendant’s Response, the parties have had extensive interaction regarding
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this case, and Defendant has both seen and reviewed Plaintiff’s Complaint, First
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The Court makes no determination as to whether Plaintiff’s ADEA claim is sufficiently pled
at this time.
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Amended Complaint, and proposed Second Amended Complaint. Dkt. # 51.
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Therefore, Defendant’s motion to strike the original Complaint and First Amended
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Complaint is DENIED. Defendant’s motion to strike Plaintiff’s ADEA retaliation
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claim from the Second Amended Complaint is also DENIED.
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Because the underlying purpose of Rule 15 is to facilitate a decision on the
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merits, Plaintiff should be permitted an opportunity to allege every relevant fact and
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argument in support of his claims. Defendant had notice of Plaintiff’s claims and makes
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no argument that it was prejudiced in any way by Plaintiff’s failure to effect service.
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Defendant has failed to meet its “heavy burden” of overcoming the presumption in
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favor of liberal amendment.
For the foregoing reasons, the Court GRANTS Plaintiff’s motion for leave to file
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his Second Amended Complaint. Dkt. # 45. Plaintiff shall file his proposed amended
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complaint, filed as Docket No. 49, within twenty days of the date of this order.
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Dated this 19th of September, 2017.
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A
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The Honorable Richard A. Jones
United States District Judge
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