Collins v. Wal-Mart Stores, Inc.

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 DAVID COLLINS, an individual, Case No.: 3:23-cv-01368-RBM-DEB

10 Plaintiff, ORDER: 11 v. (1) GRANTING PLAINTIFF’S 12 WAL-MART STORES, INC., a Delaware MOTIONS TO “AMEND AND Corporation, 13 SUPPORT” HIS COMPLAINT [Docs. Defendant. 52–57, 59] 14

15 (2) DENYING DEFENDANT’S MOTION FOR SUMMARY 16 JUDGMENT AS MOOT WITHOUT 17 PREJUDICE [Doc. 60]

18 (3) DENYING PLAINTIFF’S

19 “MOTIONS” FILED IN RESPONSE 20 TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS MOOT 21 WITHOUT PREJUDICE [Docs. 61– 68, 73] 22

23 (4) VACATING THE PRETRIAL CONFERENCE CURRENTLY 24 SCHEDULED FOR JUNE 12, 2025 25 AT 1:30 PM AND SETTING NEW DEADLINES 26 27 28 1 On June 16, 2023, Plaintiff David Collins (“Plaintiff”) filed suit against Defendant 2 Wal-Mart Stores, Inc. (“Defendant”) in the Superior Court of California, County of San 3 Diego. (Doc. 1-2 at 5–171 [“Compl.”].) On July 27, 2023, Defendant removed the case to 4 this Court. (Doc. 1.) 5 Pending before the Court are Plaintiff’s various motions to “amend and support” his 6 Complaint2 (see Docs. 52–57, 593), Defendant’s Motion for Summary Judgment (“MSJ”) 7 (Doc. 60), and Plaintiff’s various “motions” filed in response to Defendant’s MSJ (see 8 Docs. 61–68, 73). The Court finds this matter suitable for determination on the papers and 9 without oral argument pursuant to Civil Local Rule 7.1(d)(1). 10 For the reasons set forth below, Plaintiff’s motions to “amend and support” are 11 GRANTED, Defendant’s MSJ is DENIED AS MOOT WITHOUT PREJUDICE, and 12 Plaintiff’s “motions” filed in response to Defendant’s MSJ are DENIED AS MOOT 13 WITHOUT PREJUDICE. 14 I. BACKGROUND 15 A. Plaintiff’s Complaint 16 In his Complaint, Plaintiff asserts four causes of action4 against Defendant under the 17 Fair Employment and Housing Act (“FEHA”) and the California Labor Code, including: 18 (1) discrimination based on age in violation of Government Code section 12940(a); (2) 19 harassment in violation of Government Code section 12940(j);5 (3) retaliation in violation 20

21 1 The Court cites to the CM/ECF pagination unless otherwise noted. 22 2 As set forth below (see Section III), the Court construes Plaintiff’s various motions to 23 “amend and support” his Complaint as requests to (1) amend his Complaint pursuant to Federal Rule of Civil Procedure 15(a) and (2) supplement his Complaint pursuant to 24 Federal Rule of Civil Procedure 15(d). 25 3 Each of these documents is described in detail below. 4 The Court notes that the causes of action enumerated in the caption of Plaintiff’s 26 Complaint do not match the causes of action outlined in the body of Plaintiff’s Complaint. 27 The Court follows the causes of action outlined in the body of the Complaint. 5 The Court notes that this second cause of action is mistakenly referred to as the “fourth 28 1 of Labor Code sections 98.6 and 1102.5 and Government Code section 12940(h); and (4) 2 failure to prevent discrimination, harassment, and retaliation in violation of Government 3 Code section 12940 et seq. and Labor Code section 1102.5. (Compl. at 5, 11–16.) 4 B. MTD Order 5 On January 4, 2024, the Court issued an order granting in part and denying in part 6 Defendant’s Motion to Dismiss (“MTD Order”). (Doc. 7.) In its MTD Order, the Court 7 found that Plaintiff’s FEHA claims pre-dating March 12, 2021 were barred by the statute 8 of limitations. (Id. at 10–13.) However, the Court found that Plaintiff’s claims based on 9 discrete acts occurring after March 12, 2021 were not time-barred. (Id. at 13–14). Finally, 10 the Court found that Plaintiff’s claims regarding violations of California Labor Code 11 sections 98.6 and 1102.5 were not addressed in Defendant’s Motion to Dismiss and 12 therefore were not dismissed. (Id. at 14.) 13 C. Plaintiff’s Motions to “Amend and Support” 14 On December 16, 2024, Plaintiff, now proceeding pro se, filed a Motion to Amend 15 and Support. (Doc. 52.) In this motion, Plaintiff repeats his claims regarding Defendant’s 16 failure to promote him, Defendant’s retaliation, and Defendant’s harassment. (Id. at 1–4.) 17 Plaintiff also adds several new allegations, e.g., that he was the victim of “future faking” 18 by Defendant, who indicated that associates would never have to leave to advance in their 19 career. (Id. at 4–7.) Plaintiff alleges that he has been “ruined and financially destroyed” 20 because of Defendant’s discrimination and must live and sleep in his vehicle. (Id.) Plaintiff 21 also alleges that he has suffered extreme emotional distress, mental anguish, pain, and 22 suffering.6 (Id. at 5.) Finally, Plaintiff alleges Defendant’s harassment and retaliation has 23

24 25 6 Plaintiff also seems to challenge the Court’s MTD Order, which dismissed Plaintiff’s claims pre-dating March 12, 2021 as time-barred. He explains, “I did not apply to 26 [m]anagement positions with [Defendant] after the March 21, 2021 deadline because, at 27 the time, it made no sense to keep doing the same thing expecting different results. This is another reason the cut-off date is unfair to me. … I didn’t see any sense or benefit, at the 28 1 continued. (Id. at 8.) Specifically, Plaintiff alleges that an assistant manager named 2 Michelle “verbally attacked” him and made false accusations about him not reacting to a 3 spill and that he has other instances of harassment and retaliation in his notes. (Id.) 4 On January 2, 2025, Plaintiff filed a duplicative copy of his Motion to Amend and 5 Support (Doc. 53), this time attaching an “Explanation of Damages” (Doc. 53-1).7 In his 6 “Explanation of Damages,” Plaintiff claims salary losses of $592,000, bonus losses of 7 $276,000, mileage compensation losses of $9,966.88, and pain and suffering damages of 8 $495,000. (Id. at 1–3.) Plaintiff claims total damages of $1,372,966.88 without interest 9 and total damages of $1,799,152 with interest.8 (Id. at 4.) 10 On January 30, 2025, Plaintiff filed “Exhibit # 101 from the Plaintiff,” which is 11 comprised of Plaintiff’s handwritten notes from June 2024 to October 2024. (Doc. 54.9) 12 In these notes, Plaintiff describes instances of workplace bullying by an assistant manager 13 named Michelle and others. (Id. at 2–6.) 14 The same day, Plaintiff filed “Exhibit #102 from the Plaintiff,” which is comprised 15 of emails that Plaintiff wrote to Manager Kimberly Daries and others expressing his interest 16 in a management position. (Doc. 55 at 2–15.) This exhibit also includes a copy of 17 Plaintiff’s resume. (Id. at 13–14.) 18 Plaintiff also filed “Exhibit #103 From Plaintiff,” which is comprised of Plaintiff’s 19 notes from approximately March 2024 to May 2024. (Doc. 56 at 1–3.) Plaintiff’s notes 20

21 6–7.) However, the Court already denied Plaintiff’s Motion for Reconsideration of the 22 MTD Order (Doc. 80) and will not re-visit the issue here. 23 7 Document No. 53-2 is also duplicative of Plaintiff’s Motion to “Amend and Support,” so the Court will not summarize it here. 24 8 “[A]mendment is not required simply to change the amount of damages sought when the 25 categories of damages sought remain the same.” Mills v. Jones, Case No. 1:21-cv-01193- ADA-HBK (PC), 2022 WL 16758550, at *4 (E.D. Cal. Nov. 8, 2022) (quotation omitted). 26 “[A]mending the relief sought does not offer anything of substance to Plaintiff’s operative 27 complaint.” Id. Accordingly, the Court will not address Plaintiff’s “Explanation of Damages” below. 28 9 1 describe interactions that he had with his co-workers, including his immediate supervisor, 2 Alex. (Id. at 2.) Plaintiff claims that “someone is watching [him] and trying to bully [him] 3 from monitoring [him].” (Id.) Plaintiff claims that he feels like a target and that he does 4 not feel safe. (Id.) Plaintiff reiterates that Defendant’s “future faking” and discrimination 5 have caused him to become homeless. (Id. at 3.) 6 On February 12, 2025, Plaintiff re-filed his original Complaint. (Doc. 59 at 2–14.) 7 Plaintiff also filed a document titled “Amended Complaint,” which the Court construes as 8 a proposed First Amended Complaint (“FAC”). (Doc. 59-1 at 2–16 [“Proposed FAC”].) 9 In the Proposed FAC, Plaintiff asserts the same causes of action asserted in his original 10 Complaint. (Id. at 2, 10–15.) However, Plaintiff also alleges that “following [his] March 11 12, 2021 report of harassment to the CRD [Civil Rights Department], [he] experienced, 12 among other things, the following: 13 • Ms. Daries [the store manager] was heard telling co-workers that ‘he’s suing me’, ‘he needs to be taught a lesson’, ‘he needs to get his ass kicked’, 14 ‘I don’t care about that guy’, ‘he’s pissed off’, ‘he thinks he’s so cool’; 15 • Ms. Daries promoted at least 2 younger, less experienced and qualified employees over [Plaintiff]; 16 • Upon returning from a month long leave, [Plaintiff’s] title as a Cap Team 17 One was taken away and he was reassigned to a less desirable position in 18 terms of duties. • Upon returning from a month long leave, [Plaintiff] was subjected to a 19 disparate workload (he was required to perform both Softline and hardline 20 duties); • Ms. Daries denied [Plaintiff’s] multiple requests for PTO; 21 • [Plaintiff] was not given any performance reviews; 22 • [Plaintiff] was not given any pay raise; • [Plaintiff] was forced to work in the rain; 23 • [Plaintiff] was subjected to excessive monitoring, daily micromanaging 24 and unnecessary criticism; … • [Plaintiff’s] multiple requests to fix his attendance record was ignored; and 25 • Ms. Daries ignored [Plaintiff’s] requests to certify him to operate a fork 26 lift.”

27 (Id. ¶ 24.) 28 To date, Defendant has not opposed Plaintiff’s various motions to “amend and 1 support” his Complaint or Plaintiff’s Proposed FAC. 2 D. Defendant’s Motion for Summary Judgment 3 On February 13, 2025, Defendant filed its MSJ. (Doc. 60.) In its MSJ, Defendant 4 argues that Plaintiff’s age discrimination claim is without merit because Plaintiff did not 5 apply for management positions after March 12, 2021 and because Plaintiff has maintained 6 the same position, has received raises, and cannot identify others who received 7 performance reviews since March 12, 2021. (Doc. 60-1 at 9–11.) Defendant also argues 8 that Plaintiff has failed to provide any evidence related to his retaliation, harassment, and 9 failure to prevent discrimination or retaliation claims. (Id. at 11–14.) 10 Plaintiff filed numerous documents in response to Defendant’s MSJ, including 11 “Plaintiff’s Dispute and Opposition of Defendant[’]s [MSJ]” (Doc. 61), “Plaintiff[’]s 12 Motion to Dispute Defendant[’]s [MSJ] Number 2” (Doc. 62), “Motion Plaintiff’s Posting 13 of Joint Statements of Facts Admitting as Evidence” (Doc. 63), “Motion of Acceptance 14 and Tolerance for Plaintiff’s Format Using Statement of Facts Without a Lined Format” 15 (Doc. 67), and “Motion Plaintiff’s Posting of Joint Statements of Facts Admitting as 16 Evidence for Opposition to Summary Judgement” (Doc. 68). 17 II. LEGAL STANDARD 18 A. Leave to Amend—Federal Rule of Civil Procedure 15(a) 19 Federal Rule of Civil Procedure 15(a) governs motions for leave to amend filed 20 before the motion filing deadline set in the operative scheduling order. See Johnson v. 21 Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). Rule 15 affords the Court 22 broad leeway to grant plaintiffs leave to amend their pleadings before, during, or after trial. 23 See Fed. R. Civ. P. 15(a)–(c). 24 Before trial, the Court “should freely give leave [to amend] when justice so 25 requires.” Fed. R. Civ. P. 15(a)(2); see also Hurn v. Ret. Fund Tr. of Plumbing, Heating 26 & Piping Indus. of S. Cal., 648 F.2d 1252, 1254 (9th Cir. 1981) (“‘[T]he Supreme Court 27 has instructed the lower federal courts to heed carefully the command of Rule 15(a) … by 28 freely granting leave to amend when justice so requires.’”) (quoting Howey v. United 1 States, 481 F.2d 1187, 1190 (9th Cir. 1973)); AmerisourceBergen Corp. v. Dialysist W., 2 Inc., 465 F.3d 946, 951 (9th Cir. 2006) (“Rule 15(a) is very liberal and leave to amend shall 3 be freely given when justice so requires.”) (internal quotation marks and citations omitted). 4 “[T]he rule favoring liberality in amendments to pleadings is particularly important for the 5 pro se litigant.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (internal quotation 6 omitted). 7 In the Ninth Circuit, “[t]he propriety of a motion for leave to amend is generally 8 determined by reference to several factors: (1) undue delay; (2) bad faith; (3) futility of 9 amendment; and (4) prejudice to the opposing party.” Hurn, 648 F.2d at 1254; see also 10 Foman v. Davis, 371 U.S. 178, 182 (1962) (finding that, absent undue delay, bad faith or 11 dilatory motive on the part of the movant, a repeated failure to cure deficiencies by 12 amendments previously allowed, undue prejudice to the opposing party by virtue of 13 allowance of the amendment, futility of amendment, etc., leave to amend should be freely 14 given). 15 B. Leave to Supplement—Federal Rule of Civil Procedure 15(d) 16 Federal Rule of Civil Procedure 15(d) governs supplemental pleadings. It provides, 17 “the court may … permit a party to serve a supplemental pleading setting out any 18 transaction, occurrence, or event that happened after the date of the pleading to be 19 supplemented.” Fed. Rule Civ. P. 15(d) (emphasis added). “The court may permit 20 supplementation even though the original pleading is defective in stating a claim or 21 defense” and “may order that the opposing party plead to the supplemental pleading within 22 a specified time.” Id. 23 “A supplemental pleading is designed to bring the action up to date and to set forth 24 new facts affecting the controversy that may have occurred since the original pleading was 25 filed. This distinguishes it from an amended pleading, which relates to matters existing 26 when the original pleading was filed.” Moore v. Lankford, Case No.: 19CV2406-DMS 27 (BLM), 2020 WL 3129563, at *1 (S.D. Cal. June 12, 2020) (internal quotation marks and 28 citations omitted). 1 “A trial court has broad discretion in deciding whether to permit a supplemental 2 pleading.” Yates v. Auto City 76, 299 F.R.D. 611, 613 (N.D. Cal. 2013) (citing Keith v. 3 Volpe, 858 F.2d 467, 473 (9th Cir.1988)). “[A] court’s focus is on judicial efficiency.” Id. 4 (citing Planned Parenthood v. Neely, 130 F.3d 400, 402 (9th Cir.1997)) (additional 5 citations omitted). “[E]ven though supplemental pleadings are favored, they ‘cannot be 6 used to introduce a ‘separate, distinct and new cause of action.’’” Id. (quoting Planned 7 Parenthood, 130 F.3d at 402). 8 III. DISCUSSION 9 “In light of Plaintiff’s pro se status and the Court’s duty to construe pro se pleadings 10 liberally,” the Court construes Plaintiff’s various motions to “amend and support” as (1) a 11 Motion to Amend his Complaint pursuant to Rule 15(a) and (2) a Motion to Supplement 12 his Complaint pursuant to Rule 15(d). Moore, 2020 WL 3129563, at *1 (construing a pro 13 se litigant’s motion for leave to amend as a motion to supplement). Specifically, the Court 14 construes Plaintiff’s Motion to Amend as a request to file the Proposed FAC and Plaintiff’s 15 Motion to Supplement as a request to update his pleading with alleged instances of 16 harassment, retaliation, and bullying occurring after the filing of Plaintiff’s original 17 Complaint on June 16, 2023, e.g., the instances of bullying described in Plaintiff’s notes. 18 See id. The Court addresses each motion in turn. 19 A. Plaintiff’s Motion to Amend 20 As set forth above, “[t]he propriety of a motion for leave to amend is generally 21 determined by reference to several factors: (1) undue delay; (2) bad faith; (3) futility of 22 amendment; and (4) prejudice to the opposing party.” Hurn, 648 F.2d at 1254. “The 23 factors are not weighed equally.” Gilbert v. Doctor’s Choice Modesto LLC, Case No. 1:21- 24 cv-00690-AWI-SAB, 2022 WL 65161, at *1 (E.D. Cal. Jan. 6, 2022). “‘It is the 25 consideration of prejudice to the opposing party that carries the greatest weight.’” Id. 26 (quoting Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). “The 27 burden to demonstrate prejudice falls upon the party opposing the amendment.” Id. (citing 28 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)). 1 Here, Plaintiff’s first motion to “amend and support” was filed before the motion 2 filing cutoff identified in the operative scheduling order (Doc. 26) and before Defendant 3 filed its Motion for Summary Judgment (Doc. 60). Therefore, the Court finds that Plaintiff 4 has not acted with undue delay or in bad faith, and the first and second factors weigh in 5 favor of granting Plaintiff leave to amend his Complaint. 6 Further, amendment would not be futile. Plaintiff’s Proposed FAC appears to 7 address this Court’s MTD Order dismissing Plaintiff’s FEHA claims pre-dating March 12, 8 2021 by alleging instances of retaliation and harassment occurring after Plaintiff reported 9 the alleged harassment to the CRD. (Proposed FAC ¶ 24.) Thus, the third factor weighs 10 in favor of granting Plaintiff leave to amend his Complaint. 11 Lastly, while the Court acknowledges that the filing of an amended complaint will 12 prolong this litigation, including the resolution of Defendant’s pending Motion for 13 Summary Judgment (Doc. 60), Plaintiff filed his first motion to “amend and support” 14 before the motion filing cutoff and before Defendant filed its Motion for Summary 15 Judgment. Plaintiff also does not seek to alter his causes of action, minimizing the 16 prejudice to Defendant. Further, Defendant, by not filing an opposition to Plaintiff’s 17 Motion to “Amend and Support,” has not met its burden to establish prejudice as required. 18 See Gilbert, 2022 WL 65161, at *2 (“Given Defendants have not submitted an opposition 19 to the motion to amend, the Court finds that granting Plaintiff’s motion to amend would 20 not prejudice Defendants.”). 21 Accordingly, Plaintiff’s Motion to Amend his Complaint is GRANTED. Plaintiff 22 may file the Proposed FAC (Doc. 59-1 at 2–16) in its current form on or before June 16, 23 2025. Additional filings not in compliance with this Order will be stricken from the docket. 24 B. Motion to Supplement 25 The factors weighed to determine the propriety of a motion for leave to amend are 26 the same as the factors weighed to determine the propriety of a motion for leave to 27 supplement. See Lyon v. U.S. Immigr. & Customs Enf’t, 308 F.R.D. 203, 214 (N.D. Cal. 28 2015) (citing Foman, 371 U.S. at 182). “Courts also consider whether allowing leave to 1 supplement would align with the goal of Rule 15(d), which is to promote judicial 2 efficiency.” Id. (citing Planned Parenthood, 130 F.3d at 402; Keith, 858 F.2d at 473). 3 As set forth above (see Section III.A), the first, second, and fourth factors—undue 4 delay, bad faith, and prejudice—weigh in favor of allowing Plaintiff to file a Supplemental 5 Complaint. Additionally, the filing of a supplemental complaint will promote judicial 6 efficiency by resolving all of Plaintiff’s claims in one litigation. See Lyon, 308 F.R.D. at 7 215 (“The goal of Rule 15 is to promote judicial efficiency by avoiding ‘the cost, delay and 8 waste of separate actions, which must be separately tried and prosecuted.’”) (quoting Keith, 9 858 F.2d at 473). 10 However, having reviewed Plaintiff’s personal notes filed in the docket as “exhibits” 11 (see Docs. 54, 55, 56), the Court is concerned that any Supplemental Complaint would be 12 futile. As Defendant notes in its Reply Brief in Support of its MSJ, “[n]one of the exhibits 13 cited by Plaintiff [appear to] demonstrate that he was either harassed because of his age or 14 retaliated against for engaging in protected activity.” Nevertheless, in light of the liberal 15 standard governing supplemental pleadings, as well as Plaintiff’s pro se status, the Court 16 will give Plaintiff one opportunity to file a Supplemental Complaint with allegations of 17 harassment, retaliation, and bullying that occurred after the filing of Plaintiff’s original 18 Complaint on June 16, 2023. See Lopez, 203 F.3d at 1131. 19 Accordingly, Plaintiff’s Motion to Supplement his Complaint is GRANTED. 20 Plaintiff may file one Supplemental Complaint on or before on or before June 16, 2025. 21 Plaintiff’s Supplemental Complaint may include allegations of harassment, retaliation, and 22 bullying occurring after the filing of Plaintiff’s original Complaint on June 16, 2023, e.g., 23 the instances of bullying described in Plaintiff’s notes. Additional filings not in compliance 24 with this Order will be stricken from the docket. 25 IV. CONCLUSION 26 Based on the foregoing, Plaintiff’s various motions to “amend and support” his 27 Complaint (See Docs. 52–57, 59), construed as both a Motion to Amend and a Motion to 28 Supplement Plaintiff’s Complaint, are GRANTED. See Lopez, 203 F.3d at 1131 (“[T]he 1 rule favoring liberality in amendments to pleadings is particularly important for the pro se 2 litigant.”) (internal quotation omitted). 3 Plaintiff may file the Proposed FAC (Doc. 59-1 at 2–16) in its current form on or 4 before June 16, 2025. Plaintiff may also file one Supplemental Complaint on or before 5 June 16, 2025. The Supplemental Complaint may include allegations of harassment, 6 retaliation, and bullying occurring after the filing of Plaintiff’s original Complaint on June 7 16, 2023, e.g., the instances of bullying described in Plaintiff’s notes. Additional filings 8 not in compliance with this Order will be stricken from the docket. Defendant SHALL 9 answer or otherwise respond to Plaintiff’s FAC and Plaintiff’s Supplemental Complaint on 10 or before June 30, 2025. 11 Because Plaintiff’s original Complaint will be superseded by Plaintiff’s FAC, the 12 Court DENIES AS MOOT and WITHOUT PREJUDICE Defendant’s Motion for 13 Summary Judgment (Doc. 60). See Jones v. Toft, No. CIV S-11-0192 MCE, 2012 WL 14 156284, at *3 (E.D. Cal. Jan. 18, 2012) (“The court will … deny [the defendant’s] motion 15 to dismiss and … motion for summary judgment as moot, because the original complaint 16 is now super[s]eded by the first amended complaint.”). Likewise, the Court DENIES AS 17 MOOT and WITHOUT PREJUDICE Plaintiff’s “motions” filed in response to 18 Defendant’s MSJ. (See Docs. 61–68, 73.) 19 Lastly, the Court VACATES the pretrial conference currently scheduled for June 20 12, 2025 at 1:30 PM. (Doc. 26.) The Court EXTENDS the motion filing cutoff date to 21 August 25, 2025 by which Defendant may file a renewed MSJ. The Court also SETS a 22 new final pretrial conference date for October 20, 2025. Should one or both parties desire 23 to file updated trial-related documents before the final pretrial conference, they may file a 24 motion with the Court. 25 Plaintiff is cautioned that all of his filings must comply with the Federal Rules of 26 Civil Procedure, the Southern District of California’s Local Rules, and this Court’s 27 Chambers Rules. Future non-compliant filings, including duplicative filings, will be 28 stricken from the docket and may result in the loss of Plaintiff’s e-filing privileges. 1 IT IS SO ORDERED. 2 DATE: June 6, 2025