Rivas v. Caesars Enterprise Services, LLC

Opinion

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DANIELA RIVAS, Case No. 2:19-cv-01637-KJD-DJA

Plaintiff, ORDER v.

Defendant.

This matter is before the Court on Plaintiff Daniela Rivas’ Motion for Leave to File First Amended Complaint (ECF No. 30), filed on September 30, 2020. Defendant filed a Response (ECF No. 36) on October 14, 2020. Plaintiff filed a Reply (ECF No. 37) on October 21, 2020. This matter is also before the Court on Defendant’s Motion for Leave to File Surreply (ECF No. 40), filed on October 23, 2020. Plaintiff filed a Response (ECF No. 41) on October 26, 2020. To date, no reply has been filed. The Court finds these matters properly resolved without a hearing. See Local Rule 78-1. The parties are familiar with the facts of this case and the Court will not repeat them here except as necessary. Plaintiff seeks to amend to add another defendant, Desert Palace, LLC, given that she has just learned that entity was her employer instead of the current Defendant who is listed on her IRS W-2 Form. (ECF No. 30). Defendant contends the late amendment would be prejudicial as Plaintiff was given multiple notices that she had sued the wrong entity, her request is made after a dispositive motion has been submitted, and 10 months after the deadline to amend expired. (ECF No. 36). Rule 15(a)(2) of the Federal Rules of Civil Procedure, regarding the amendment of pleadings, directs that “[t]he court should freely give leave when justice so requires.” The Ninth to amend its pleading.” Sonoma Cnty. Ass’n of Ret. Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013). “Courts may decline to grant leave to amend only if there is strong evidence of ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment, etc.’” Id. at 1117 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). When leave to amend is sought after the amendment deadline in the court’s scheduling order has expired, the movant must also show good cause to reopen the amendment period and excusable neglect for the delay. See Fed. R. Civ. P. 6(b)(1)(B) (stating “the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.”). In evaluating excusable neglect, the court weighs: “(1) the danger of prejudice to the non-moving party, (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the moving party’s conduct was in good faith.” Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004) (citing Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993)). The weight assigned to these factors is left to the court’s discretion. Id. When a court can “conceive of facts that would render plaintiff’s claim viable,” or “it appears at all possible that the plaintiff can correct the defect,” an amendment should not be found futile. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1988) (internal quotation marks and citations omitted). Preliminarily, the Court will grant Defendant’s request to file a surreply. It will consider all of the parties’ arguments in deciding the request to amend. As to Plaintiff’s request to amend, the deadline to amend the pleadings and add parties expired on December 17, 2019. (ECF No. 9). So, this request falls under the higher excusable neglect standard. After careful consideration of all of the arguments, the Court finds that Plaintiff’s requested amendment is supported by excusable neglect. First, there is no danger of prejudice to Defendants – current and proposed. As Plaintiff highlights, the current Defendant entity is listed on her W-2 form and since Plaintiff seeks to proceed with her case on the merits. Defendant is correct that discovery has expired; however, they do not explain, and the Court cannot see, how much further discovery would be needed just based on the addition of the new defendant entity. The joint employer issue is not new to the Court or the parties. Most importantly, the Court is willing to extend the discovery period to permit this case to be tried on its merits. Second, the length of the delay and reason for the delay weigh in favor of granting amendment. Plaintiff clearly had the opportunity to amend the complaint earlier and the Court finds the length of the delay troublesome. Nevertheless, Plaintiff contends that it operated in good faith based on the W-2 representation that she had sued the correct entity along with a job offer, job fair application, and paystubs. Indeed, the passage of time is not reason enough to preclude amendment. See, e.g., Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981) (“Ordinarily, leave to amend pleadings should be granted regardless of the length of time of delay by the moving party absent a showing of bad faith by the moving party or prejudice to the opposing party.”). There is no trial date scheduled and the dispositive motions have not been ruled on. As the Court cannot find Plaintiff’s operated in bad faith given her representations, it will permit the amendment. IT IS HEREBY ORDERED that Plaintiff Daniela Rivas’ Motion for Leave to File First Amended Complaint (ECF No. 30) is granted. Plaintiff shall file and serve the amended pleading in accordance with Local Rule 15-1. IT IS FURTHER ORDERED that Defendant’s Motion for Leave to File Surreply (ECF No. 40) is granted. DATED: November 2, 2020

DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE