United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
A. Russo United States Magistrate Judge.
Spencer McCloud moves to amend his complaint pursuant to
Fed.R.Civ.P. 15. For the reasons set forth below,
plaintiff's motion should be granted in part and denied
Applied Integrated Technologies, Inc. provides security
staffing to federal agencies. Def.'s Resp. to Mot. Amend
2 (doc. 26). In June 2012, plaintiff was hired as a
“security officer” by defendant and offered the
following benefits “pursuant to a private employment
agreement”: “$22.03 per hour in wages; [a] fringe
benefit allowance for health insurance in the amount of $4.75
per hour (up to 40 hours per week); 10 paid holidays per
year; 10 paid vacation days per year; [and] [p]ayment for
travel time between work sites.” Proposed Am. Compl.
(“PAC”) ¶ 2 (doc. 22-1).
2016, plaintiff joined the United Government Officers of
America, International Union, Local 371 Union
(“Union”). Id. at ¶ 3. Pursuant to
the underlying collective bargaining agreement
(“CBA”), plaintiff was guaranteed the same
employment benefits, except that his hourly wage increased to
$22.80 as of December 1, 2017. Id.
relevant times, plaintiff worked 32 hours per week, which the
CBA classified as fulltime. Id. at ¶ 4; Redmond
Decl. Ex. A, at 7 (doc. 27-1); Redmond Decl. Ex. B, at 8
(doc. 27-2); Redmond Decl. Ex. E, at 8 (doc.
27-5). The CBA also contained mandatory grievance
and arbitration procedures. Redmond Decl. Ex. A, at 20-21
(doc. 27-1); Redmond Decl. Ex. B, at 21-22 (doc. 27-2);
Redmond Decl. Ex. E, at 22-23 (doc. 27-5).
2018, plaintiff's employment with defendant ended due to
the nonrenewal of defendant's federal government
contract. PAC ¶ 6 (doc. 22-1).
2018, plaintiff commenced this action in Multnomah County
Circuit Court, alleging claims for breach of contract,
negligence, and unpaid wages under Or. Rev. Stat.
§§ 652.120, 652.140, and 652.150. See
generally Notice of Removal Ex. 1 (doc. 1-1). In July
2018, defendant removed plaintiff's complaint to this
August 2018, defendant moved to dismiss plaintiff's
complaint in its entirety. In December 2018, the Court
granted defendant's motion but allowed plaintiff leave to
seek amendment in light of plaintiff's representation
“he has additional facts in his possession supportive
of a claim for breach of contract under state law, ” as
well as his expressed intention “to pursu[e] relief
under 29 U.S.C. § 185(a) for claims arising after May
2016.” McCloud v. Applied Integrated Techs.,
Inc., 2018 WL 6496793, *4 (D. Or. Oct. 15), adopted
by 2018 WL 6497842 (D. Or. Dec. 7, 2018).
December 21, 2018, plaintiff filed the present motion to
amend. On January 18, 2019, defendant opposed plaintiff's
motion on futility grounds.
to amend pleadings “shall be freely given when justice
so requires.” Fed.R.Civ.P. 15(a). Courts apply Rule 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, courts generally consider four factors:
(1) undue delay; (2) bad faith; (3) futility; and (4)
prejudice to the opposing party. Forsyth v. Humana,
Inc., 114 F.3d 1467, 1482 (9th Cir. 1997) (citation
factors are not weighted equally: “futility of
amendment alone can justify the denial of a motion [to
amend].” Ahlmeyer v. Nev. Sys. of Higher
Educ., 555 F.3d 1051, 1055 (9th Cir. 2009). A proposed
amendment is futile if it would be immediately “subject
to dismissal.” Steckman v. Hart Brewing, Inc.,
143 F.3d 1293, 1298 (9th Cir. 1998). As such, the proposed
complaint must allege “enough facts ...