United States District Court, D. Oregon
Craig A. Crispin, Crispin Employment Lawyers, Portland, Oregon, John Judge, Judge, Kostura & Putnam, PC, Austin, Texas, Attorneys for plaintiff.
Carol J. Bernick, James G. Parker Davis Wright Tremaine, LLP, Portland, Oregon, Attorneys for defendant.
OPINION AND ORDER
ANN AIKEN, Chief District 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.
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. Plaintiff's direct supervisor was Stacy Nelson, who was based out of defendant's Portland office; plaintiff also reported directly to local supervisors at each job site. The position was physically demanding, requiring plaintiff to 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 employment with defendant, plaintiff sustained several injuries. Most recently, plaintiff experienced a knee injury that required surgery. 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 to work. Defendant granted plaintiff additional leave from June 24, 2011 to August 12, 2011. On August 12, 2011, plaintiff was terminated because he still did not 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 ("ADA") for failure to accommodate and wrongful termination. On December 12, 2012, the Court entered a scheduling order that set June 14, 2013 as the deadline for completing discovery and June 28, 2013 as the deadline for dispositive motions. On June 17, 2013, the Court extended the deadline for the parties to complete discovery and file dispositive motions until November 8, 2013 and November 15, 2013, respectively. On November 15, 2013, defendant moved for summary judgment. On December 9, 2013, after obtaining a further extension from the Court to respond to defendant's summary judgment motion, plaintiff moved to amend his complaint.
Where a party seeks to amend the complaint after the date 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) (citations and internal quotations omitted). Under Fed.R.Civ.P. 16, a scheduling order "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b) (4). The good cause inquiry "primarily considers the diligence of the party seeking the amendment." Johnson , 975 F.2d at 609. Thus, the "court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension." Id . (citations and internal quotations omitted).
Pursuant to Fed.R.Civ.P. 15, leave to amend proceedings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Courts apply Fed.R.Civ.P. 15 with "extreme liberality." Eminence Capital, LLC v. Aspeon, Inc. , 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted). In determining whether a motion to amend should be granted under this rule, the court generally considers four factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. Forsyth v. Humana, Inc. , 114 F.3d 1467, 1482 (9th Cir. 1997) (citation omitted). These factors are not weighted equally: prejudice, alone, can justify the denial of a motion to amend. See Eminence , 316 F.3d at 1052 ("consideration of prejudice to the opposing party carries the greatest weight").
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"), plaintiff seeks to: (1) 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 undue delay and implies bad faith because plaintiff was aware of facts underlying the PAC long before actually seeking amendment. Def.'s Opp'n to Mot. Am. 2-3. Second, defendant asserts that allowing the proposed amendments would be prejudicial because discovery is complete and it has already filed a summary judgment motion, for which briefing is also complete. Id . at 4. Third, defendant contends that the proposed amendments would be futile because ...