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Shah v. Meier Enterprises, Inc.

United States District Court, D. Oregon

April 26, 2018




         Pro 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.

         Plaintiff 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.

         Plaintiff 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, 2018.

         On 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.

         On 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.

         Currently 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.


         Plaintiff 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.

         Federal 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).

         This 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.

         Here, Plaintiff has added two additional paragraphs to his Amended Complaint which he contends allege a claim for fraud. Those paragraphs state:

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 ...

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