Sean Sullivan v. Ashley Furniture Industries, LLC.

Opinion

Case 5:21-cv-01053-MEMF-SP Document 68 Filed 12/12/22 Page 1 of 7 Page ID #:1273

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12 Plaintiff, ORDER DENYING MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT 13 v. [ECF NO. 60] 14 et al., 16 Defendants. 17

18 19 20 Before the Court is the Motion for Leave to File Plaintiff’s First Amended Complaint filed 21 by Plaintiff Sean Sullivan. ECF No. 60. For the reasons stated herein, the Court hereby DENIES the 22 Motion for Leave to File Plaintiff’s First Amended Complaint. 23 24 25 26 27 / / / 28 / / /

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1 I. Background 2 A. Factual Background1 3 Plaintiff Sean Sullivan was employed by Defendant Ashley Furniture Industries, Inc. 4 (“AFI”). DSUF ¶ 11. On March 6, 2020, Sullivan suffered a disability requiring medical attention 5 and accommodation. PSAF ¶ 49. Over the following weeks, Sullivan contacted AFI’s attendance 6 line multiple times to inform AFI that he would be absent and had a doctor’s note supporting his 7 need for an absence. DSUF ¶¶ 18–19. On March 30, 2020, Sullivan again informed AFI via the 8 attendance line that he would be out due to his disabling condition until further notice. PSAF ¶ 39. 9 He did not return to work that day, nor did he provide AFI with copies of his doctor’s note. DSUF ¶ 10 22. On April 8, 2020, AFI terminated Sullivan’s employment for violating AFI’s attendance policy, 11 which prohibited absences of more than three consecutive days without notification. Id. ¶ 24. 12 B. Procedural History 13 On April 22, 2021, Sullivan filed a complaint against Defendants AFI and Stoneledge 14 Furniture LLC (“Stoneledge”), alleging: (1) disability discrimination under the Fair Employment and 15 Housing Act (“FEHA”); (2) retaliation under FEHA; (3) failure to provide reasonable 16 accommodation under FEHA; (4) failure to engage in the interactive process under FEHA; (5) aiding 17 and abetting under FEHA; (6) wrongful termination in violation of public policy; and (7) waiting 18 time penalties. ECF No. 1-1. On June 9, 2022, the Court issued a Civil Trial Order governing the 19 action. ECF No. 31 (“CTO”). On June 23, 2021, the case was removed to federal court. ECF No. 1. 20 On July 7, 2022, AFI filed the instant Motion for Summary Judgment or, in the Alternative, Partial 21 Summary Judgment. ECF No. 32 (“MSJ”). On August 9, 2022, the parties submitted a joint 22 stipulation to dismiss Stoneledge, which the Court subsequently granted. ECF Nos. 41, 42. The 23 24 25 26 1 The facts set forth below are taken from the parties’ prepared Statements of Uncontroverted Material Facts, ECF Nos. 33 (“Defendant’s Statement of Uncontroverted Facts” or “DSUF”); 44, at 2 (“Plaintiff’s Opposition 27 to Defendant’s SUF” or “PODSUF”); 44, at 13 (“Plaintiff’s Statement of Additional Facts” or “PSAF”); 51, at 1 (“Defendant’s Reply in Support of SUF” or “DRSUF”); 51, at 14 (“Defendant’s Opposition to Plaintiff’s 28 SAF” or “DOPSAF”). The Court previously found the below material facts are established for trial under FED. R. CIV. P. 56(a) and FED. R. CIV. P. 56(g).

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1 Court held oral argument on the Motion for Summary Judgment on October 6, 2022, after providing 2 the parties with a tentative ruling in advance. 3 The crux of the operative complaint is Sullivan’s April 8, 2020 termination. See generally 4 Compl. In his Opposition to AFI’s Motion for Summary Judgment, Sullivan referenced a separate 5 occasion in August 2019 during which he allegedly experienced discrimination on disability when 6 AFI denied his request for reasonable accommodations. Opposition to Motion for Summary 7 Judgment (“MSJ Opp’n”), ECF No. 43, at 12, 15, 19–20. By referencing these incidents, Sullivan 8 appeared to be attempting to claim additional bases of discrimination. However, Sullivan conceded 9 during the hearing that no allegations regarding this August 2019 incident appear in the Complaint. 10 Order Granting in Part Motion for Summary Judgment (“MSJ Order”), ECF No. 58, at 12 n.34. On 11 October 13, 2022, the Court adopted its tentative order, granting in part the Motion for Summary 12 Judgment. Because the August 2019 allegations were not properly alleged in the Complaint, the 13 Court concluded that it was inappropriate to consider them as part of Sullivan’s claims. Id. 14 On October 20, 2022, Sullivan filed the instant Motion for Leave to File Plaintiff’s First 15 Amended Complaint (“FAC”). ECF No. 60 (“Motion” or “Mot.”). The Motion was fully briefed on 16 November 2, 2022. ECF Nos. 63 (“Opp’n”), 65 (“Reply”). The Court deemed this matter appropriate 17 for resolution without oral argument and took the Motion under submission. 18 Sullivan’s Proposed First Amended Complaint adds, in relevant part, new factual allegations 19 regarding the August 2019 incident that the Court previously declined to consider in analyzing AFI’s 20 Motion for Summary Judgment. Mot. at 1; see also Proposed First Amended Complaint (“Proposed 21 FAC”), ECF No. 60-2, Ex. B, ¶¶ 20–23. In particular, the Proposed First Amended Complaint 22 includes the following new allegations: 23 20. On or about August 27, 2019, Plaintiff provided Defendants a note from his 24 medical doctor requesting the accommodation of light duty for the period of August 26, 2019 through September 2, 2019 due to his disabling condition. 25 21. From August 27, 2019 through August 28, 2019, Defendant conducted internal email communications confirming their knowledge of Plaintiff’s disabling condition 26 and his request for accommodations. On August 28, 2019, Plaintiff’s supervisor told Plaintiff that Defendants could not accommodate light duty work for a non-work 27 related injury. Defendant’s human resources representative responds in the email 28 chain without any suggestion that the supervisor’s position on accommodation was incorrect or improper.

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22. The August 2019 incident described in paragraphs 20-21 above evidence an 1 addition instance of discrimination and retaliation against Plaintiff by denying Plaintiff 2 employment benefits or privileges, by denying Plaintiff a good faith interactive process, and by failing to provide any reasonable accommodation for Plaintiff’s disability. The 3 discrimination and retaliation was based on Plaintiff’s disability, his resulting need, request and/or use of a disability-related accommodation, and/or his reporting or 4 resisting the discrimination and retaliation. 23. Plaintiff filed a timely complaint against Defendants with the Department of Fair 5 Employment and Housing (“DFEH”) thereby exhausting his administrative remedies 6 relating to the allegations in paragraphs 20 to 22 above. Plaintiff received a right to sue notice from the DFEH giving him the right to sue Defendants. A true and correct copy 7 of Plaintiff’s DFEH complaint and right to sue notice is attached hereto as Exhibit “B.” 8 Proposed FAC ¶¶ 20–23 (emphasis added). 9 II. Applicable Law 10 Once the district court has issued a CTO establishing the schedule of discovery, pretrial, and 11 trial dates, Federal Rule of Civil Procedure 16 governs the standards for amending a complaint. 12 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992). Rule 16 provides in 13 relevant part: 14 (b) [The district court] . . . shall, after consulting with the attorneys for the parties and 15 any unrepresented parties, by a scheduling conference, . . . enter a scheduling order that 16 limits the time (1) to join other parties and to amend the pleadings; 17 (2) to file and hear motions; and (3) to complete discovery. 18 . . . The order shall issue as soon as practicable but in no event more than 120 days after 19 filing of the complaint. A schedule shall not be modified except by leave of ... [the 20 district court] upon a showing of good cause.2 21 FED. R. CIV. P. 16. Under Rule 16, a district court may find “good cause” to amend the CTO “if [the 22 CTO deadline] cannot reasonably be met despite the diligence of the party seeking the extension.” 23 Johnson, 975 F.2d at 609. (quoting FED. R. CIV. P. 16 advisory committee’s notes (1983 24 amendment)). “If the party seeking the modification ‘was not diligent, the inquiry should end’ and 25

26 2 The Court notes that orders entered before the final pretrial conference may be modified upon a showing of 27 “good cause,” FED. R. CIV. P. 16(b), but orders “following a final pretrial conference shall be modified only 28 to prevent manifest injustice.” FED. R. CIV. P. 16(e). Because the final pretrial conference has not yet occurred, the Court considers this motion under the “good cause” standard.

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1 the motion to modify should not be granted.” Zivkovic v. Southern California Edison Co., 302 F.3d 2 1080, 1087 (9th Cir.2002) (quoting Johnson, 975 F.2d at 609). Moreover, Courts have held that 3 carelessness may not be cited as a reason for modification and is not a basis upon which relief may 4 be granted. See, e.g., Johnson, 975 F.2d at 609 (collecting cases). 5 Because a motion for amending the CTO and amending a complaint may appear similar at 6 first glance, courts have explicitly differentiated the evaluation of “good cause” under Rule 16 from 7 the evaluation of the propriety of amendment under Federal Rules of Civil Procedure Rule 15. Id. at 8 609. “Unlike Rule 15(a)’s liberal amendment policy, which focuses on the bad faith of the party 9 seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good 10 cause’ standard primarily considers the diligence of the party seeking the amendment.” Id. 11 III. Discussion 12 Here, Sullivan requests permission to file a First Amended Complaint (“FAC”) on the 13 grounds that he has acted in good faith and without undue delay, that allowing amendment would 14 not be prejudiced, and that amendment would not be futile. Mot. at 5–7. AFI opposes the Motion, 15 arguing that Sullivan knew or should have known the facts on which his proposed amendment is 16 based, that he cannot establish that he acted diligently in avoiding undue delay, and that AFI would 17 be prejudiced by an amendment. Opp’n at 4–7. 18 A. Sullivan has failed to demonstrate good cause to justify modification of the Civil 19 Trial Order. 20 Before the Court may grant leave for Sullivan to file a FAC, the Court must first determine 21 whether he has demonstrated “good cause” to justify modifying the CTO—and, more specifically, 22 the deadline to amend pleadings. Under the operative CTO, the deadline for Sullivan to amend his 23 pleadings or add parties expired on July 21, 2022. See generally CTO. Although the parties 24 previously jointly stipulated to continue the hearing on AFI’s Motion for Summary Judgment, ECF 25 No. 38, the parties have never stipulated to or otherwise indicated the need for a continuance of the 26 July 21, 2022 deadline to amend the pleadings. In determining whether “good cause” exists to 27 modify the deadline to amend the pleadings, the Court must determine whether Sullivan made 28 diligent attempts to amend the CTO.

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1 Sullivan contends that he acted diligently, as the information forming the basis of his 2 proposed new allegations was unavailable to him until August 4, 2022, due to AFI’s delay in 3 producing documents responsive to his discovery request. Mot. at 2–3, 5; Reply at 2–4. 4 First, the Court finds that by his own admission, the facts forming the basis for the new 5 allegations was available to Sullivan in August 2019: At that time, Sullivan was advised that he 6 would be denied an accommodation for his injury despite presenting a medical note. It is this denial 7 of the accommodation which forms the basis of his proposed claim today. Although Sullivan may 8 not have been in possession of AFI’s internal communications until more recently, these internal 9 communications do not form the basis of his claim but seek to support his claim. Therefore, 10 Sullivan’s failure to file a Motion to Amend the CTO or for Leave to File an FAC over the past year 11 and a half indicates a lack of diligence. 12 Even assuming that Sullivan did not become aware of this additional claim until receiving 13 AFI’s internal communications on August 4, 2022, Sullivan’s actions still indicate a lack of 14 diligence. The instant Motion for Leave to File an FAC was not filed until October 20, 2022—over 15 three months since AFI filed its Motion for Summary Judgment (ECF No. 32), two months since 16 Sullivan received the allegedly necessary documents, and a week after the Court already ruled upon 17 AFI’s Motion for Summary Judgment (ECF No. 58). Yet, Sullivan made no effort in that period to 18 seek Leave to Amend the CTO or the FAC. 19 Moreover, the Court finds that granting Leave to Amend the CTO and the CTO would cause 20 undue delay and prejudice to AFI. Indeed, the discovery cut-off has lapsed, and all discovery has 21 since been completed. Depositions of key witnesses have already been taken. Granting Sullivan’s 22 request would require the Court to re-open discovery on a distinct and unrelated issue that had not 23 previously been the focus of the pleadings or discovery and further continue the Trial date. In light 24 of the foregoing reasons, the Court concludes that Sullivan has failed to demonstrate good cause to 25 justify a modification of the CTO. See FED. R. CIV. P. 16(b). Accordingly, the Court DECLINES to 26 amend the CTO. 27 Because the Court has declined to amend the CTO, the Court need not consider Sullivan’s 28 Motion for Leave to File an FAC. Because Sullivan’s “ability to amend his complaint [is] governed

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1 by Rule 16(b)” and he has not demonstrated “good cause,” the CTO will not be amended. Johnson, 2 975 F.2d at 608. Since the CTO’s deadline to file amended pleadings remains in place, the Motion 3 for Leave to File a FAC is therefore DENIED as untimely. U.S. Dominator, Inc. v. Factory Ship 4 Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985) (concluding that because the parties never 5 modified the CTO before the deadline had passed, the district court properly denied the motion to 6 amend as untimely). 7 IV. Conclusion 8 For the foregoing reasons, the Court hereby ORDERS that the Motion for Leave to File 9 Plaintiff’s First Amended Complaint (ECF No. 60) is DENIED. 10 12 13 Dated: December 12, 2022 ___________________________________ 14 MAAME EWUSI-MENSAH FRIMPONG 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28