United States District Court, D. Oregon
OPINION AND ORDER
JELDERKS, U.S. MAGISTRATE JUDGE.
se Plaintiff Shah brings this action against Defendants
Meier Enterprises, Inc. (“Meier”); and
individuals Paul Giever, Steven Anderson, and Bobbi Keen,
alleging age and race and national origin discrimination
under federal and Washington state laws, whistle blower
retaliation under Oregon and Washington state laws and common
law retaliatory wrongful discharge.
originally filed his complaint in Washington County Circuit
Court for the State of Oregon on November 22, 2016. (Dkt.
#1). On February 10, 2017, Meier removed the case to this
court based on federal question jurisdiction for
Plaintiff's claims under 42 U.S.C. §2000e-2 and 29
U.S.C. § 623 and supplemental jurisdiction for
Plaintiff's state law claims. (Dkt. #1). Plaintiff
subsequently filed a motion for remand, which was denied by
this Court in an Order dated June 15, 2017.
was granted leave to file an Amended Complaint, which he
submitted on October 2, 2017. Although the discovery and
dispositive motion deadlines were not until February 12,
2018, Plaintiff filed a motion for summary judgment on
December 21, 2017. The parties then filed a joint motion for
extension of discovery and pre-trial deadlines. The Court
granted the motion and the deadline for discovery and
dispositive motions was set for May 7, 2018. Plaintiff then
filed an amended motion for summary judgment on January 3,
January 5, 2018, Defendants' filed a motion seeking an
extension of time to respond to Plaintiff's amended
motion for summary judgment. At that time, discovery had not
been completed and Plaintiff's deposition, although
scheduled, had not yet occurred. On January 22, 2018, the
Court granted the motion and set the deadline for
Defendants' Response to the motion for summary judgment
for April 6, 2018.
March 6, 2018, Plaintiff filed a motion for leave to file a
Second Amended Complaint. On March 19, 2018, Defendants filed
a second motion to extend the deadline to respond to
Plaintiff's motion for summary judgment because Plaintiff
had recently scheduled the depositions of numerous Meier
employees. The Court granted the motion, giving Defendants
until April 20, 2018 to file their response. On April 16,
2018 Plaintiff filed a document entitled “Leave for
Plaintiff's Affidavit in Support of First Amended Motion
for Summary Judgment.” On April 20, 2018, Defendants
filed their response to Plaintiff's motion for summary
judgment and a cross-motion for summary judgment.
pending before the Court is Plaintiff's motion for leave
to file a Second Amended Complaint. For the reasons that
follow, Plaintiff's motion is denied.
requests leave to amend his Complaint to add a claim for
fraud. Defendants oppose the motion, arguing that the
proposed Second Amended Complaint fails to meet the
heightened pleading standards for fraud and because it is
untimely and prejudicial.
Rule of Civil Procedure 9(b) requires that “[i]n
alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a
person's mind may be alleged generally.” A claim
for fraudulent misrepresentation “must state the time,
place, and specific content of the false representations as
well as the identities of the parties to the
misrepresentation.” Schreiber Distrib. Co. v.
Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.
1986). “The plaintiff must set forth what is false or
misleading about a statement, and why it is false.”
Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106
(9th Cir. 2003)(quoting Decker v. GlenFed, Inc. (In re
GlenFed, Inc. Sec. Litig.), 42 F.3d 1541, 1548 (9th
Cir.1994))(internal quotations omitted).
heightened pleading standard is designed “(1) to
provide defendants with adequate notice to allow them to
defend the charge and deter plaintiffs from the filing of
complaints ‘as a pretext for the discovery of unknown
wrongs'; (2) to protect those whose reputation would be
harmed as a result of being subject to fraud charges; and (3)
to ‘prohibit [ ] plaintiff[s] from unilaterally
imposing upon the court, the parties and society enormous
social and economic costs absent some factual
basis.'” Kearns v. Ford Motor Co., 567
F.3d 1120, 1125 (9th Cir. 2009)(quoting In re Stac Elecs.
Sec. Litig., 89 F.3d 1399, 1405 (9th Cir.1996))(internal
quotations omitted, brackets in original). In federal court,
the substantive elements of a state law fraud claim are
determined by state law, but those elements still must be
pleaded with particularity as required by Rule 9(b).
Vess, 317 F.3d at 1104-05.
Plaintiff has added two additional paragraphs to his Amended
Complaint which he contends allege a claim for fraud. Those
During interview Plaintiff having 20 years of experience as
a Department Manager mentioned interest in Defendants'
Electrical Department Group Manager position, but was not
offered. After Plaintiff's six weeks employment with
Defendants, Waterman was offered that ...