1 2 3 4 5 8 9 KIMBERLY EMERSON, CASE NO. 20-CV-08607-YGR
10 Plaintiff, ORDER GRANTING MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 11 vs. Re: Dkt. No. 36 MANAGEMENT SERVICES, INC. AND
14 Defendants.
15 On October 15, 2021, plaintiff Kimberly Emerson filed this employment discrimination 16 action against defendants Iron Mountain Information Management Services, Inc., (“IMIMS”) and 17 Iron Mountain Incorporated (“IM”). Currently pending is plaintiff’s motion for leave to file a first 18 amended complaint (“FAC”), seeking to substitute Iron Mountain Information Management, LLC 19 (“IMIM”) as Doe Defendant No. 1 and to add allegations of fact supporting a pattern of disability 20 discrimination, among other changes. (Dkt. No. 36.) Pursuant to the Court’s scheduling order 21 (Dkt. No. 19), any motions to amend pleadings at this point in the proceedings require a showing 22 of good cause pursuant to Rule 16(b)(4). The Court finds such good cause and therefore GRANTS 23 the motion. 24 Pursuant to General Order 71, on January 4, 2021, defendants identified Gia Allen, 25 Michelle Coffey, Michael Mahoney, and Sarah Rook as persons “known to defendant[s] who were 26 involved in making the decision to take the adverse action.” (Dkt. No. 36-1, ¶ 10.) By e-mail 27 dated January 21, 2021, defendants advised plaintiff that Allen was employed by IMIMS and that 1 stated that IMIM converted to IMIMS and that the former ceased to exist. (Id.) On March 12, 2 2021, in response to written discovery requests propounded by plaintiff on January 20, 2021, 3 including a request for organizational charts, defendants again identified Mahoney, Coffey, and 4 Rook as employees of IMIM but did not produce documents evidencing as much. (Dkt. No. 36-1, 5 ¶ 12.) On April 16, 2021, following the unsuccessful mediation conducted that day, plaintiff 6 requested to meet and confer with defendants regarding their allegedly defective written discovery 7 responses. (Id. ¶ 14.) A meet and confer occurred on May 3, followed by plaintiff sending 8 defendant a proposed joint discovery letter on May 5. (Id. ¶¶ 15–16.) Defendants did not send the 9 initial draft of their portion of the joint discovery letter until May 21. (Id.) Plaintiff submits that 10 she finally was compelled to add IMIM as a party to this action when, “[o]n June 2, 2021 defense 11 counsel removed the reference of deponent Mr. Mahoney as an employee of the Defendants and 12 asserted that he is only an employee of IMIM LLC for purposes of deposition.” (Id. ¶ 17.) On 13 June 3, plaintiff’s counsel requested defendants’ agreement to a stipulation to join IMIM as a 14 named defendant because IMIM “was, and may still be, a direct employer of Plaintiff . . . .” (Dkt. 15 No. 36-4.)1 16 Defendants “were open to stipulat[ing] to the filing of the proposed [FAC] in order to 17 avoid further law and motion.” (Dkt. No. 40 at 4.) However, after the stipulation drafted by 18 plaintiff’s counsel resulted in additional revisions, the parties were unable to resolve one last 19 change. Specifically, on June 23, defendants proposed the following addition to the stipulation: 20 “WHEREAS, on January 21, 2021, Defendant Iron Mountain Information Management Services, 21 Inc. (“IMIMS”) notified Plaintiff that three witnesses identified by Plaintiff were employed by 22 Iron Mountain Information Management, LLC (“IMIM”) and not by IMIMS.” (Dkt. No. 36-1, ¶ 23 25.) In response, plaintiff’s counsel suggested adding “Defendants contend” to the proposed 24 recital purportedly in order to put things in context. (Id. ¶ 26.) On July 8, defense counsel 25 communicated that she could not agree to this suggestion. (Id. ¶ 27; see also Dkt. No. 40-1.) 26 1 “Due to independent investigation after this case was filed, [plaintiff’s counsel] learned 27 that IMIM LLC was listed as the payor on Plaintiff’s 2013 IRS-W-2 Forms.” (Dkt. No. 36-1, ¶ 1 Within a week of this communication, on July 13, plaintiff filed the instant motion. 2 A request to amend a pleading after the Court’s deadline for doing so implicates both Rule 3 15 and 16.2 Rule 16(b) governs the issuance and modification of pretrial scheduling orders, and 4 Rule 15(a) governs amendment of pleadings. Fed. R. Civ. P. 16(b) and 15(a). “Rule 16(b)’s 5 ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” 6 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Under Rule 15(a), 7 “[t]he four factors commonly used to determine the proprietary of a motion for leave to amend are 8 bad faith, undue delay, prejudice to the opposing party, and futility of amendment.” Abels v. JBC 9 Legal Group, P.C., 229 F.R.D. 152, 155–56 (N.D. Cal. 2005) (citing Foman v. Davis, 371 U.S. 10 178, 182 (1962)). 11 In evaluating plaintiff’s diligence for purposes of Rule 16, the Court considers defendants’ 12 argument that plaintiff unduly delayed in seeking the proposed amendments. Defendants point to 13 the period between January 21, 2021, when they first advised plaintiff that the decisionmakers of 14 the alleged adverse action were employed by IMIM, and June 3, 2021, when plaintiff requested 15 the amendment to join IMIM. (Dkt. No 40 at 4.) However, the Court is not persuaded by 16 defendants’ claim of undue delay because up until recently, they had been “open to stipulat[ing] to 17 the filing of the proposed [FAC] in order to avoid further law and motion.” (Id.) Defendants 18 cannot now point to a failure of diligence on the part of plaintiff when, up until June 23, they 19 evidently did not consider any delay at that point so “undue” that they could not agree to the 20 stipulation for the filing of the FAC.3 Because the motion to amend was filed with reasonable 21 diligence after nearly securing such stipulation, the Court finds good cause to permit the filing of 22
23 2 See Phillips, J. and Stevenson, J., FED. CIV. PRO. BEFORE TRIAL (Rutter Group Prac. Guide) § 15:32 (“Once the scheduling order deadline has passed, Rule 16(b)(4) requires a party to 24 show ‘good cause’ before being granted leave to amend the pleadings, in addition to the showing required under Rule 15.”) (emphasis in original). 25
3 In addition, the Court finds any delay to add IMIM as a named defendant not 26 unreasonable, particularly in light of plaintiff’s initial written discovery requests propounded shortly after defendants’ General Order 71 disclosures. Plaintiff specifically requested 27 organizational charts presumably to determine the relationship between the various entities and 1 the FAC pursuant to Rule 16(b)(4). 2 Further, considering the factors applicable to leave to amend under Rule 15, the Court does 3 not find bad faith, undue delay, prejudice to defendants, or futility of the proposed amendment. 4 First, defendants do not suggest any bad faith or futility of the proposed amendments. Indeed, the 5 party sought to be added, IMIM, appears to be wholly owned by defendant IM, and IMIM itself 6 appears to be a second-level parent of defendant IMIMS.4 In other words, a joint employment 7 relationship may exist between the currently named defendants and the proposed defendant. Thus, 8 the Court cannot conclude that any bad faith exists in seeking the proposed amendments or that 9 such amendments would be futile. 10 Moreover, as discussed above, the Court is not persuaded that plaintiff unduly delayed in 11 bringing this motion. Lastly, defendants argue that they will be “highly prejudic[ed]” by the 12 proposed amendments. (Dkt. No. 40 at 4.) However, defendants’ claim of prejudice is predicated 13 entirely on the alleged delay and therefore appears disingenuous given their recent willingness to 14 agree to the proposed amendments.
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1 2 3 4 5 8 9 KIMBERLY EMERSON, CASE NO. 20-CV-08607-YGR
10 Plaintiff, ORDER GRANTING MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 11 vs. Re: Dkt. No. 36 MANAGEMENT SERVICES, INC. AND
14 Defendants.
15 On October 15, 2021, plaintiff Kimberly Emerson filed this employment discrimination 16 action against defendants Iron Mountain Information Management Services, Inc., (“IMIMS”) and 17 Iron Mountain Incorporated (“IM”). Currently pending is plaintiff’s motion for leave to file a first 18 amended complaint (“FAC”), seeking to substitute Iron Mountain Information Management, LLC 19 (“IMIM”) as Doe Defendant No. 1 and to add allegations of fact supporting a pattern of disability 20 discrimination, among other changes. (Dkt. No. 36.) Pursuant to the Court’s scheduling order 21 (Dkt. No. 19), any motions to amend pleadings at this point in the proceedings require a showing 22 of good cause pursuant to Rule 16(b)(4). The Court finds such good cause and therefore GRANTS 23 the motion. 24 Pursuant to General Order 71, on January 4, 2021, defendants identified Gia Allen, 25 Michelle Coffey, Michael Mahoney, and Sarah Rook as persons “known to defendant[s] who were 26 involved in making the decision to take the adverse action.” (Dkt. No. 36-1, ¶ 10.) By e-mail 27 dated January 21, 2021, defendants advised plaintiff that Allen was employed by IMIMS and that 1 stated that IMIM converted to IMIMS and that the former ceased to exist. (Id.) On March 12, 2 2021, in response to written discovery requests propounded by plaintiff on January 20, 2021, 3 including a request for organizational charts, defendants again identified Mahoney, Coffey, and 4 Rook as employees of IMIM but did not produce documents evidencing as much. (Dkt. No. 36-1, 5 ¶ 12.) On April 16, 2021, following the unsuccessful mediation conducted that day, plaintiff 6 requested to meet and confer with defendants regarding their allegedly defective written discovery 7 responses. (Id. ¶ 14.) A meet and confer occurred on May 3, followed by plaintiff sending 8 defendant a proposed joint discovery letter on May 5. (Id. ¶¶ 15–16.) Defendants did not send the 9 initial draft of their portion of the joint discovery letter until May 21. (Id.) Plaintiff submits that 10 she finally was compelled to add IMIM as a party to this action when, “[o]n June 2, 2021 defense 11 counsel removed the reference of deponent Mr. Mahoney as an employee of the Defendants and 12 asserted that he is only an employee of IMIM LLC for purposes of deposition.” (Id. ¶ 17.) On 13 June 3, plaintiff’s counsel requested defendants’ agreement to a stipulation to join IMIM as a 14 named defendant because IMIM “was, and may still be, a direct employer of Plaintiff . . . .” (Dkt. 15 No. 36-4.)1 16 Defendants “were open to stipulat[ing] to the filing of the proposed [FAC] in order to 17 avoid further law and motion.” (Dkt. No. 40 at 4.) However, after the stipulation drafted by 18 plaintiff’s counsel resulted in additional revisions, the parties were unable to resolve one last 19 change. Specifically, on June 23, defendants proposed the following addition to the stipulation: 20 “WHEREAS, on January 21, 2021, Defendant Iron Mountain Information Management Services, 21 Inc. (“IMIMS”) notified Plaintiff that three witnesses identified by Plaintiff were employed by 22 Iron Mountain Information Management, LLC (“IMIM”) and not by IMIMS.” (Dkt. No. 36-1, ¶ 23 25.) In response, plaintiff’s counsel suggested adding “Defendants contend” to the proposed 24 recital purportedly in order to put things in context. (Id. ¶ 26.) On July 8, defense counsel 25 communicated that she could not agree to this suggestion. (Id. ¶ 27; see also Dkt. No. 40-1.) 26 1 “Due to independent investigation after this case was filed, [plaintiff’s counsel] learned 27 that IMIM LLC was listed as the payor on Plaintiff’s 2013 IRS-W-2 Forms.” (Dkt. No. 36-1, ¶ 1 Within a week of this communication, on July 13, plaintiff filed the instant motion. 2 A request to amend a pleading after the Court’s deadline for doing so implicates both Rule 3 15 and 16.2 Rule 16(b) governs the issuance and modification of pretrial scheduling orders, and 4 Rule 15(a) governs amendment of pleadings. Fed. R. Civ. P. 16(b) and 15(a). “Rule 16(b)’s 5 ‘good cause’ standard primarily considers the diligence of the party seeking the amendment.” 6 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Under Rule 15(a), 7 “[t]he four factors commonly used to determine the proprietary of a motion for leave to amend are 8 bad faith, undue delay, prejudice to the opposing party, and futility of amendment.” Abels v. JBC 9 Legal Group, P.C., 229 F.R.D. 152, 155–56 (N.D. Cal. 2005) (citing Foman v. Davis, 371 U.S. 10 178, 182 (1962)). 11 In evaluating plaintiff’s diligence for purposes of Rule 16, the Court considers defendants’ 12 argument that plaintiff unduly delayed in seeking the proposed amendments. Defendants point to 13 the period between January 21, 2021, when they first advised plaintiff that the decisionmakers of 14 the alleged adverse action were employed by IMIM, and June 3, 2021, when plaintiff requested 15 the amendment to join IMIM. (Dkt. No 40 at 4.) However, the Court is not persuaded by 16 defendants’ claim of undue delay because up until recently, they had been “open to stipulat[ing] to 17 the filing of the proposed [FAC] in order to avoid further law and motion.” (Id.) Defendants 18 cannot now point to a failure of diligence on the part of plaintiff when, up until June 23, they 19 evidently did not consider any delay at that point so “undue” that they could not agree to the 20 stipulation for the filing of the FAC.3 Because the motion to amend was filed with reasonable 21 diligence after nearly securing such stipulation, the Court finds good cause to permit the filing of 22
23 2 See Phillips, J. and Stevenson, J., FED. CIV. PRO. BEFORE TRIAL (Rutter Group Prac. Guide) § 15:32 (“Once the scheduling order deadline has passed, Rule 16(b)(4) requires a party to 24 show ‘good cause’ before being granted leave to amend the pleadings, in addition to the showing required under Rule 15.”) (emphasis in original). 25
3 In addition, the Court finds any delay to add IMIM as a named defendant not 26 unreasonable, particularly in light of plaintiff’s initial written discovery requests propounded shortly after defendants’ General Order 71 disclosures. Plaintiff specifically requested 27 organizational charts presumably to determine the relationship between the various entities and 1 the FAC pursuant to Rule 16(b)(4). 2 Further, considering the factors applicable to leave to amend under Rule 15, the Court does 3 not find bad faith, undue delay, prejudice to defendants, or futility of the proposed amendment. 4 First, defendants do not suggest any bad faith or futility of the proposed amendments. Indeed, the 5 party sought to be added, IMIM, appears to be wholly owned by defendant IM, and IMIM itself 6 appears to be a second-level parent of defendant IMIMS.4 In other words, a joint employment 7 relationship may exist between the currently named defendants and the proposed defendant. Thus, 8 the Court cannot conclude that any bad faith exists in seeking the proposed amendments or that 9 such amendments would be futile. 10 Moreover, as discussed above, the Court is not persuaded that plaintiff unduly delayed in 11 bringing this motion. Lastly, defendants argue that they will be “highly prejudic[ed]” by the 12 proposed amendments. (Dkt. No. 40 at 4.) However, defendants’ claim of prejudice is predicated 13 entirely on the alleged delay and therefore appears disingenuous given their recent willingness to 14 agree to the proposed amendments. Defendants do not otherwise explain how they would suffer 15 prejudice, apart from the delay.5 See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 16 (9th Cir. 2003) (“Prejudice is the touchstone of the inquiry under Rule 15(a).”) (internal quotations 17 and citations omitted). Thus, plaintiff meets the objective factors for granting leave to amend. 18 Accordingly, the motion for leave to file the FAC is GRANTED. Plaintiff shall file the 19 proposed FAC within 3 court days of issuance of this Order. Defendants shall file their response 20 within 10 calendar days thereafter. 21 22
23 4 Plaintiff’s counsel avers that defendants responded to the discovery request for organization charts as follows: “Defendant Iron Mountain Incorporated wholly owns Iron 24 Mountain Information Management, LLC. Iron Mountain Information Management, LLC wholly owns Iron Mountain US Holdings, Inc., which wholly owns Defendant Iron Mountain Information 25 Management Services, Inc.” (Dkt. No. 36-1, ¶ 12.) However, counsel’s declaration did not attach the discovery response itself. 26
5 Defendants’ response brief primarily points to plaintiff’s delay in other matters of this 27 litigation, including her refusal to sit for a deposition, a dispute which has since been handled by 1 The parties are reminded that federal courts are incredibly busy. They should not be 2 || filing motions where reasonable stipulations can achieve the same result without the need for 3 judicial intervention or prejudice to either side. 4 This Order terminates Docket Number 36. 5 IT Is SO ORDERED. 6 || Dated: September 22, 2021 YVONN ONZALEZ RO S 7 UNITED STATES DISTRICT COURT JUDGE 8 9 10 11 12
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