Easley v. Ameriprise Financial, Inc.

• Court: District Court, D. Nevada
• Decided: September 11, 2020
• Docket: 2:19-cv-02214
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 JASMINE A. EASLEY, Case No. 2:19-cv-02214-APG-BNW 6 Plaintiff, 7 ORDER AND REPORT AND v. RECOMMENDATION 8 AMERIPRISE FINANCIAL, 9 INC., et al.,

10 Defendants.

11 12 Presently before the Court is Plaintiff Jasmine A. Easley’s (“Easley’s”) motion to amend 13 (“Easley’s Motion”). ECF No. 23. For the reasons discussed below, the Court will grant 14 Plaintiff’s motion in part and recommend that it be denied in part. 15 I. Background 16 This case centers around Easley’s allegation that Ameriprise Financial Services, Inc. 17 (“Ameriprise”) wrongfully terminated her employment for reasons related to her disability. ECF 18 No. 29 at 2. 19 Easley timely filed her motion to amend. ECF No. 23; see ECF No. 15 at 2. Easley seeks 20 leave to add a claim for intentional interference with prospective economic advantage and will 21 drop her claim for failure to accommodate brought under the ADA. ECF No. 23. 22 Easley alleges that Ameriprise intentionally reported false information to the Financial 23 Industry Regulation Authority (“FINRA”) on a required form, stating that the company fired 24 Easley for violating a final behavioral warning. ECF No. 23 at 4. Easley alleges Ameriprise’s this 25 was pretextual because Easley properly notified Ameriprise that she was leaving work to visit a 26 doctor, approved through her intermittent FMLA leave. Id. Easley alleges that this disclosure 27 prevented her from securing future employment. Id. Before termination, Easley alleges her 1 her disabilities. Id. at 3. Easley also alleges that her manager tried to make her watch a video 2 about adult-aged triplets that suffered from some of the same mental health issues Easley suffers 3 from, one of which committed suicide in the video. Id. 4 Ameriprise filed a partial opposition to Plaintiff’s motion to amend (“Ameriprise’s 5 Opposition”), arguing that Easley’s new claim would be futile. ECF No. 26. And subsequently, 6 Easley filed a reply (“Easley’s Reply”). ECF No. 29. 7 II. DISCUSSION 8 Generally, a party may amend its pleading once “as a matter of course” within twenty-one 9 days of serving it, or within twenty-one days after service of a responsive pleading or motion 10 under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Otherwise, “a party may amend its pleading 11 only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 12 “The court should freely give leave when justice so requires.” Id. “The court considers five 13 factors [under Rule 15] in assessing the propriety of leave to amend—bad faith, undue delay, 14 prejudice to the opposing party, the futility of amendment, and whether the plaintiff has 15 previously amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th 16 Cir. 2011). “The standard for granting leave to amend is generous.” Id. 17 A. Easley’s Motion 18 Here, Easley argues the Court should grant her leave to amend her complaint to add a 19 claim for intentional interference with prospective economic advantage. ECF No. 23. Easley’s 20 motion addresses the factors courts consider when assessing the propriety of granting leave to 21 amend. ECF No. 23 at 5-7. 22 First, Easley argues that amendment would not cause undue delay: she timely filed her 23 motion to amend and only recently learned of Ameriprise’s inaccurate disclosure during 24 negotiations with a potential employer. Id. at 5. 25 Second, Easley argues that she is not acting in bad faith or with a dilatory motive. Id. at 6. 26 Easley is conforming the pleading to the facts as recently discovered; she is not seeking to add 27 parties that were uninvolved or disinterested, and the additional cause of action is a foreseeable 1 Third, Easley argues that she has not repeatedly failed to cure deficiencies by previous 2 amendments, because this is Easley’s first request for leave to amend. Id. 3 Fourth, Easley argues that her amendment would not cause any undue prejudice to 4 Ameriprise. Id at 6-7. Easley is not seeking to add additional parties. Id. Ameriprise will have 5 sufficient time to complete discovery by the cut-off date. Id. And if Easley is permitted to add the 6 claim, Ameriprise will continue the same investigation of Easley’s claims. Id. 7 Fifth, the amendment is not futile. Id. at 7. The single additional claim Easley seeks to 8 bring is relevant, necessary, and would allow full compensation for her loss. Id. 9 And sixth, Easley’s proposed amended complaint will bring clarity to her claims by 10 breaking up several causes of action brought under the ADA. Id. 11 B. Ameriprise’s Opposition 12 Ameriprise argues that the Court should deny Easley’s request to add a claim for 13 intentional interference with prospective economic advantage but does not oppose Easley 14 amending her claims brought under the ADA. ECF No. 26 at 1, 5. 15 Ameriprise argues that Easley’s claim for intentional interference with prospective 16 economic advantage would be futile because it is based “merely on a recitation of elements and 17 speculation of fact.” ECF No. 26 at 5-6. More specifically, its overarching argument is that it 18 cannot be held liable for making a required disclosure to FINRA even if Easley disagrees with the 19 termination or contends that it was discriminatory. Id. at 3. 20 Ameriprise argues that when a party opposes a motion as futile, the standard of review is 21 whether the claim meets the threshold under Rule 12(b)(6) for failure to state a claim. ECF No. 26 22 at 5; See Farina v. Compuware Corp., 256 F. Supp.2d 1033, 1061 (D. Ariz. 2003) (citing Miller 23 v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)). Accordingly, to state a claim for 24 intentional interference with prospective economic advantage, Ameriprise argues that Easley 25 must allege facts showing: (1) a prospective contractual relationship between plaintiff and a third 26 party; (2) defendant’s knowledge of the prospective relationship; (3) intent to harm the plaintiff 27 by preventing the relationship; (4) the absence of privilege or justification by defendant; and (5) 1 actual harm to plaintiff as a result of defendant’s conduct. ECF No. 26 at 6; Leavitt v. Leisure 2 Sports Inc., 103 Nev. 81, 88 (1987). 3 Ameriprise first argues that Easley does not meet the second element of the claim because 4 she does not allege facts to show that Ameriprise knew of Easley’s employment opportunities. 5 ECF No. 26 at 4. 6 Ameriprise next argues that Easley does not meet the third element of the claim because 7 she “makes the speculative and conclusory assertion that [Ameriprise] intended to cause [Easley] 8 harm by ‘falsely’ reporting the nature of her termination to FINRA.” Id. at 4. 9 Ameriprise argues Easley has not met the fourth element of the claim because Ameriprise 10 had absolute privilege and was “required by law” to disclose the reason for terminating Easley to 11 FINRA. ECF No. 26 at 5-7 (citing Cucinotta v. Deloitte & Touche, L.L.P., 129 Nev. 322, 327 12 (2013) (holding that an accounting firm had absolute privileged to disclose defamatory 13 information made pursuant to federal securities law)). 14 C. Easley’s Reply 15 Easley argues that Ameriprise’s arguments fail. ECF No. 29 at 2. Easley argues that she 16 meets the first element of intentional interference with prospective economic advantage by 17 attaching exhibits of email correspondence with potential employers. ECF Nos. 29-2, 29-3. 18 Easley argues that she meets the second element because Ameriprise knew or should have known 19 Easley would seek future employment upon termination. ECF No. 29 at 4. Easley does not 20 directly address the third element but argues that Ameriprise intentionally reported incorrect 21 information to FINRA, and that disclosure precluded her from obtaining future employment. Id. 22 at 2. 23 Easley next addresses the fourth element, arguing that Ameriprise does not have a legal 24 obligation to wrongfully terminate her and report false information to FINRA. Id. Easley argues 25 that disclosure of non-securities related misconduct to FINRA is not absolutely privileged. Id. at 26 6-8. Easley argues that Nevada has not explicitly addressed whether financial firms have absolute 27 privilege or qualified privilege concerning statements made on Form U-5. Id. at 6. Easley argues 1 because it involved an accounting firm disclosing what it believed to be illegal securities 2 misconduct. ECF No. 29 at 7; 129 Nev. at 323-24. And here, Ameriprise, an investment firm, 3 disclosed conduct unrelated to securities misconduct, fraud, or dishonesty. ECF No. 29 at 7. 4 Reporting this information to FINRA, Easley argues, does not serve the public interest. Id. Easley 5 contends that the Court should adopt the position that disclosure of non-securities related 6 misconduct to FINRA is not absolutely privileged. Id. at 7-8; Tilkey v. Allstate Ins. Co., 261 Cal. 7 Rptr. 3d 435, 453 (Ct. App. 2020), reh’g denied (May 7, 2020), order vacated (May 27, 2020), 8 reh’g granted, opinion not citeable (May 27, 2020). 9 D. Analysis 10 The Court will grant Easley’s motion in part and recommend that it be denied in part. The 11 Court will grant Easley’s motion to the extent she seeks to amend her ADA claims, as Ameriprise 12 does not oppose this. ECF No. 26 at 1. The Court will recommend that her motion be denied to 13 the extent she attempts to add a claim for intentional interference with prospective economic 14 advantage. 15 Defendant has not argued, and the Court does not find that bad faith, undue delay, or 16 prejudice to the opposing party exist here. See ECF No. 23 at 6-7. Also, Easley has not previously 17 amended her Complaint. See id. at 6. However, the Court finds that Easley’s amendment to add a 18 claim for intentional interference with prospective economic advantage would be futile, as 19 discussed below. 20 “A proposed amended complaint is futile if it would be immediately ‘subject to 21 dismissal.’” Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011). Accordingly, the Court will 22 apply the standard articulated in Twombly and Iqbal. Nordyke, 644 F.3d at 788 n.12 (“the proper 23 test to be applied when determining the legal sufficiency of a proposed amendment is identical to 24 the one used when considering the sufficiency of a pleading challenged under Rule 12(b)(6)”); 25 see Fulton v. Advantage Sales & Mktg., LLC, No. 3:11-CV-01050-MO, 2012 WL 5182805, at *3 26 (D. Or. Oct. 18, 2012) (applying the Twombly and Iqbal standard to motion to amend opposed as 27 futile). Easley’s pleadings must “contain sufficient factual matter, accepted as true, to state a 1 2 claim for relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 4 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 5 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. 6 To state a claim for intentional interference with prospective economic advantage, Easley 7 must show (1) a prospective contractual relationship between plaintiff and a third party; (2) 8 Defendant’s knowledge of the prospective relationship; (3) intent to harm the plaintiff by 9 10 preventing the relationship; (4) the absence of privilege or justification by defendant; and (5) 11 actual harm to plaintiff as a result of defendant’s conduct. Leisure Sports Inc., 103 Nev. at 88. 12 The Court finds that Easley cannot show that Ameriprise’s statement was not privileged 13 and thus cannot state a claim for interference with prospective economic advantage. See id. The 14 parties dispute whether Ameriprise had an absolute privilege to disclose the reason she was 15 terminated. ECF Nos. 26 at 6-7, 29 at 5-8. Ameriprise contends that it had an absolute privilege to 16 disclose this information, citing Cucinotta v. Deloitte & Touche, L.L.P., 129 Nev. 322, 327 17 18 (2013) (holding that an accounting firm had absolute privileged to disclose defamatory 19 information made pursuant to federal securities law). Plaintiff disagrees, citing Tilkey v. Allstate 20 Ins. Co., 261 Cal. Rptr. 3d 435, 453 (Ct. App. 2020), reh’g denied (May 7, 2020), order vacated 21 (May 27, 2020), reh’g granted, opinion not citeable (May 27, 2020) (privilege for fraud-and- 22 securities-related information required by FINRA did not extend to reasons for termination on 23 Form U5 that were unrelated to securities issues). 24 25 Here, the Court applies Nevada law to determine whether Ameriprise’s statements were 26 privileged. In Cucinotta, the Nevada Supreme Court held that “those who are required by law to 27 publish defamatory statements should be absolutely privileged in making such statements.” 129 Nev. at 326. Still, it required that “(1) the communications be made pursuant to a lawful process, 1 2 and (2) the communications be made to a qualified person.” Id. Here, there is no dispute that the 3 communications were made under FINRA and to a qualified person. ECF Nos. 26 at 2-3, 29 at 5. 4 Accordingly, the Court finds that Ameriprise’s statements were absolutely privileged. See 5 Cucinotta, 129 Nev. at 326. 6 The Court considered whether Cucinotta is distinguishable from the facts of this case but 7 finds that it is not distinguishable in a way that changes the Court’s conclusion. In Cucinotta, it 8 was not clear that the defendant reported information it knew to be false. 129 Nev. at 323-24. 9 10 Here, by contrast, Easley alleges that Defendant reported information it knew to be false. ECF 11 No. 29 at 2. Even assuming Easley’s allegations are true, as the Court must, the Court finds that 12 this is not a relevant fact upon which to distinguish this case from Cucinotta. This is so because, 13 in Cucinotta, the Nevada Supreme Court explicitly considered that the absolute privilege it 14 created could be abused but created it despite this risk. 129 Nev. at 325. The court reasoned that 15 “[c]ertain communications, although defamatory, should not serve as a basis for liability in a 16 defamation action and are entitled to an absolute privilege because ‘the public interest in having 17 18 people speak freely outweighs the risk that individuals will occasionally abuse the privilege by 19 making false and malicious statements.’” Id. Accordingly, the Nevada Supreme Court implicitly 20 acknowledged that the absolute privilege it created would occasionally protect false statements 21 (but still, it did not condition the privilege on the defendant knowing the statement to be true or at 22 least not false). Id. As such, the Court believes that if the Nevada Supreme Court were presented 23 with the facts of this case, it would find Ameriprise’s statements to be absolutely privileged. Id. 24 25 26 27 Wl. CONCLUSION 2 IT IS THEREFORE ORDERED that Easley’s motion to amend (ECF No. 23) is 3 || GRANTED in PART. It is granted to the extent that Easley seeks to amend her claims under the 4 | ADA. 5 IT IS RECOMMENDED that Easley’s motion be DENIED to the extent that she seeks to add a claim for intentional interference with prospective economic advantage. 7 g IV. NOTICE 9 This report and recommendation is submitted to the United States district judge assigned 10 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 11 || may file a written objection supported by points and authorities within fourteen days of being 12 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 13 || objection may waive the right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 1153, 14 |} 1157 (9th Cir. 1991). 15 16 DATED: September 9, 2020 17 18 ya lowe BRENDA WEKSLER 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28