1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JOCELYN SILVANO, an individual, Case No. 2-24-cv-01712-RFB-MDC 4 Plaintiff(s), ORDER GRANTING THE MOTION TO 5 vs. AMEND 6 CIRCA HOSPITALITY GROUP III LLC, a 7 Nevada limited liability company, dba CIRCA RESORT & CASINO, 8 Defendant(s). 9 Pending before the Court is plaintiff Jocelyn Silvano’s Motion to Amend (ECF No. 16) 10 (“Motion”). The Court has reviewed the filings and related briefings. For the reasons stated below, the 11 Court GRANTS the Motion.
12 DISCUSSION 13 I. BACKGROUND 14 This is an action arising from plaintiff’s allegations that she experienced disability discrimination 15 and retaliation during her employment with defendant Circa Hospitality Group III, PLLC dba Circa 16 Resort & Casino. Plaintiff additionally claims that defendant violated her rights under the Family 17 Medical Leave Act (“FMLA”). Plaintiff moves to amend her Complaint to include a request for 18 liquidated damages, a claim of FMLA interference, and allegations to support the claim. ECF No. 16. 19 II. MOTION TO AMEND 20 A. Legal Standard 21 Generally, a party may amend its pleadings “as a matter of course” within 21 days of serving it 22 or within 21 days after service of a responsive pleading under Rule 12(b), (e), or (f). Fed. R. Civ. P. 23 15(a)(1). Otherwise, amendments are only permitted “with the opposing party’s written consent or the 24 court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 provides that “[t]he court should freely give leave when 25 1 1 justice so requires.” Id. Generally, the Ninth Circuit has held that Rule 15(a) should be “applied with 2 extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “Five 3 factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue 4 delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously 5 amended the complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citing 6 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)); see also Eminence Capital, LLC, 316 F.3d at 7 1052 (“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 8 deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of 9 allowance of the amendment, futility of amendment, etc.”) (citing Foman v. Davis, 371 U.S. 178, 182 10 (1962). “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15—to 11 facilitate decision on the merits, rather than on the pleadings or technicalities.” Roth v. Garcia Marquez, 12 942 F.2d 617, 628 (9th Cir. 1991) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). 13 Ultimately, there is considerable deference to amendment and the analysis “should be performed with all 14 inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 15 1999). 16 B. Analysis 17 a. Bad Faith And Dilatory Motive 18 The first factor courts consider is bad faith and/or dilatory motive. “[B]ad faith is not simply bad 19 judgment or negligence, but rather implies the conscious doing of a wrong because of dishonest purpose 20 or moral obliquity…it contemplates a state of mind affirmatively operating with furtive design or ill 21 will.” United States v. Manchester Farming P’Ship, 315 F.3d 1176, 1185 (9th Cir. 2003) (internal 22 citations omitted). In the context of a motion for leave to amend, “bad faith” means acting with intent to 23 deceive, harass, mislead, delay, or disrupt. Cf. Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 24 2006); see Wizards of the Coast LLC v. Cryptozoic Entm’t LLC, 309 F.R.D. 645, 651 (W.D. Wash. 25 2 1 2015) (internal citations omitted). “[B]ad faith or dilatory motive may be demonstrated by actions 2 demonstrating gamesmanship…but when a plaintiff can provide a satisfactory explanation for its delay, 3 and there is no evidence in the record that would indicate wrongful motive, there is no cause to uphold 4 the denial of a leave to amend on the basis of bad faith or undue delay.” Ernest Bock, LLC v. Steelman, 5 2021 U.S. Dist. LEXIS 75614, at *14 (D. Nev. April 20, 2021) (citing DCD Programs, Ltd. v. Leighton, 6 833 F.2d 183, 187 (9th Cir. 1987)) (internal quotations omitted). 7 Defendant argues that plaintiff’s amendment is in bad faith because plaintiff knew the facts 8 underlying her proposed amendment since the inception of the action but withheld moving to amend 9 prior to the Early Neutral Evaluation (“ENE”) for “gamesmanship.” ECF No. 18. 10 Plaintiff replies that she did not learn of the specific facts supporting her amendment - which are 11 distinctively different from the facts she understood at the time she filed her complaint on September 13, 12 2024 (ECF No. 1) - until she received defendant’s initial disclosures on January 23, 2025. ECF No. 20. 13 Plaintiff further argues that she provided a copy of her proposed amended complaint to defendant eleven 14 days before ENE to inquire whether defendant would stipulate to the proposed amendment. ECF No. 20. 15 Finally, plaintiff notes that her Motion and proposed amended complaint were filed and served on 16 February 25, 2025, which was one week prior to the March 4, 2025, ENE. Id. After receiving 17 plaintiff’s proposed amendment, defendant did not request to move the ENE. 18 Defendant’s bad faith and gamesmanship arguments are largely conclusory and further 19 weakened by the chronology of events that show the proposed amendment was provided a reasonable 20 amount of time before the ENE. The Court is therefore persuaded that plaintiff’s proposed amendment 21 is not in bad faith. More importantly, plaintiff has provided a satisfactory explanation to support 22 amendment. See Ernest Bock, LLC, 2021 U.S. Dist. LEXIS 75614, at *14. 23 // 24 // 25 3 1 b. Undue Delay 2 The second factor courts consider is undue delay. In evaluating whether a Motion to Amend is 3 timely, courts consider (1) whether the amendment was sought before the amended pleadings deadline 4 in a scheduling order and (2) “whether the moving party knew or should have known the facts and 5 theories raised by the amendment in the original pleading.” AmerisourceBergen Corp. v. Dialysist West, 6 Inc., 465 F.3d 946, 953 (9th Cir. 2006) (internal citations omitted). The Court finds no undue delay. 7 Here, the parties agreed that they could have until February 26, 2025, to amend the pleadings. 8 ECF No. 10. Plaintiff’s Motion was timely filed on February 25, 2025. ECF No. 16.
Free access — add to your briefcase to read the full text and ask questions with AI
1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JOCELYN SILVANO, an individual, Case No. 2-24-cv-01712-RFB-MDC 4 Plaintiff(s), ORDER GRANTING THE MOTION TO 5 vs. AMEND 6 CIRCA HOSPITALITY GROUP III LLC, a 7 Nevada limited liability company, dba CIRCA RESORT & CASINO, 8 Defendant(s). 9 Pending before the Court is plaintiff Jocelyn Silvano’s Motion to Amend (ECF No. 16) 10 (“Motion”). The Court has reviewed the filings and related briefings. For the reasons stated below, the 11 Court GRANTS the Motion.
12 DISCUSSION 13 I. BACKGROUND 14 This is an action arising from plaintiff’s allegations that she experienced disability discrimination 15 and retaliation during her employment with defendant Circa Hospitality Group III, PLLC dba Circa 16 Resort & Casino. Plaintiff additionally claims that defendant violated her rights under the Family 17 Medical Leave Act (“FMLA”). Plaintiff moves to amend her Complaint to include a request for 18 liquidated damages, a claim of FMLA interference, and allegations to support the claim. ECF No. 16. 19 II. MOTION TO AMEND 20 A. Legal Standard 21 Generally, a party may amend its pleadings “as a matter of course” within 21 days of serving it 22 or within 21 days after service of a responsive pleading under Rule 12(b), (e), or (f). Fed. R. Civ. P. 23 15(a)(1). Otherwise, amendments are only permitted “with the opposing party’s written consent or the 24 court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 provides that “[t]he court should freely give leave when 25 1 1 justice so requires.” Id. Generally, the Ninth Circuit has held that Rule 15(a) should be “applied with 2 extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “Five 3 factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue 4 delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously 5 amended the complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citing 6 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)); see also Eminence Capital, LLC, 316 F.3d at 7 1052 (“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 8 deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of 9 allowance of the amendment, futility of amendment, etc.”) (citing Foman v. Davis, 371 U.S. 178, 182 10 (1962). “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15—to 11 facilitate decision on the merits, rather than on the pleadings or technicalities.” Roth v. Garcia Marquez, 12 942 F.2d 617, 628 (9th Cir. 1991) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). 13 Ultimately, there is considerable deference to amendment and the analysis “should be performed with all 14 inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 15 1999). 16 B. Analysis 17 a. Bad Faith And Dilatory Motive 18 The first factor courts consider is bad faith and/or dilatory motive. “[B]ad faith is not simply bad 19 judgment or negligence, but rather implies the conscious doing of a wrong because of dishonest purpose 20 or moral obliquity…it contemplates a state of mind affirmatively operating with furtive design or ill 21 will.” United States v. Manchester Farming P’Ship, 315 F.3d 1176, 1185 (9th Cir. 2003) (internal 22 citations omitted). In the context of a motion for leave to amend, “bad faith” means acting with intent to 23 deceive, harass, mislead, delay, or disrupt. Cf. Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 24 2006); see Wizards of the Coast LLC v. Cryptozoic Entm’t LLC, 309 F.R.D. 645, 651 (W.D. Wash. 25 2 1 2015) (internal citations omitted). “[B]ad faith or dilatory motive may be demonstrated by actions 2 demonstrating gamesmanship…but when a plaintiff can provide a satisfactory explanation for its delay, 3 and there is no evidence in the record that would indicate wrongful motive, there is no cause to uphold 4 the denial of a leave to amend on the basis of bad faith or undue delay.” Ernest Bock, LLC v. Steelman, 5 2021 U.S. Dist. LEXIS 75614, at *14 (D. Nev. April 20, 2021) (citing DCD Programs, Ltd. v. Leighton, 6 833 F.2d 183, 187 (9th Cir. 1987)) (internal quotations omitted). 7 Defendant argues that plaintiff’s amendment is in bad faith because plaintiff knew the facts 8 underlying her proposed amendment since the inception of the action but withheld moving to amend 9 prior to the Early Neutral Evaluation (“ENE”) for “gamesmanship.” ECF No. 18. 10 Plaintiff replies that she did not learn of the specific facts supporting her amendment - which are 11 distinctively different from the facts she understood at the time she filed her complaint on September 13, 12 2024 (ECF No. 1) - until she received defendant’s initial disclosures on January 23, 2025. ECF No. 20. 13 Plaintiff further argues that she provided a copy of her proposed amended complaint to defendant eleven 14 days before ENE to inquire whether defendant would stipulate to the proposed amendment. ECF No. 20. 15 Finally, plaintiff notes that her Motion and proposed amended complaint were filed and served on 16 February 25, 2025, which was one week prior to the March 4, 2025, ENE. Id. After receiving 17 plaintiff’s proposed amendment, defendant did not request to move the ENE. 18 Defendant’s bad faith and gamesmanship arguments are largely conclusory and further 19 weakened by the chronology of events that show the proposed amendment was provided a reasonable 20 amount of time before the ENE. The Court is therefore persuaded that plaintiff’s proposed amendment 21 is not in bad faith. More importantly, plaintiff has provided a satisfactory explanation to support 22 amendment. See Ernest Bock, LLC, 2021 U.S. Dist. LEXIS 75614, at *14. 23 // 24 // 25 3 1 b. Undue Delay 2 The second factor courts consider is undue delay. In evaluating whether a Motion to Amend is 3 timely, courts consider (1) whether the amendment was sought before the amended pleadings deadline 4 in a scheduling order and (2) “whether the moving party knew or should have known the facts and 5 theories raised by the amendment in the original pleading.” AmerisourceBergen Corp. v. Dialysist West, 6 Inc., 465 F.3d 946, 953 (9th Cir. 2006) (internal citations omitted). The Court finds no undue delay. 7 Here, the parties agreed that they could have until February 26, 2025, to amend the pleadings. 8 ECF No. 10. Plaintiff’s Motion was timely filed on February 25, 2025. ECF No. 16. Further, plaintiff 9 has provided a satisfactory explanation that she did not learn of the facts raised by her proposed 10 amendment until after defendant’s made their initial disclosures on January 23, 2025. Therefore, this 11 factor weighs in favor of amendment. 12 c. Prejudice To The Opposing Party 13 The third factor courts consider prejudice to the opposing party. “Prejudice to the opposing party 14 is the most important factor.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (citing 15 Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 28 L. Ed. 2d 77, 91 S. Ct. 795 16 (1971)). “The party opposing amendment bears the burden of showing prejudice.” Eminence Capital, 17 316 F.3d at 1052. Defendant’s claim prejudice because the timing of the amendment has prevented 18 them from investigating plaintiff’s new factual claims and theories. ECF No. 18. Plaintiff argues that 19 defendant would not be prejudiced because, at the time of her motion, there were three months of 20 discovery remaining (ECF No. 16 at 3) and the parties later discussed an extension (ECF No. 20 at 5). 21 Defendant does not elaborate on its objection or show any specific prejudice but instead relies 22 conclusory argument that plaintiff does not “get to dictate what amount of time is adequate for Circa to 23 prepare its defense.” ECF No. 18 at 4. Moreover, the parties did agree to extend discovery after 24 defendant filed her opposition. ECF No. 23. 25 4 1 Therefore, the defendant has not met its burden of establishing prejudice and this factor weighs 2 ||in favor of amendment. “‘Absent prejudice, or a strong showing of any of the remaining Foman factors, 3 || there exists a presumption under Rule 15(a) in favor of granting leave to amend.” /d. ““Where there is a 4 || lack of prejudice to the opposing party and the amended complaint is obviously not frivolous, or made 5 a dilatory maneuver in bad faith, it is an abuse of discretion to deny [a motion to amend].” Howey v. 6 || United States, 481 F.2d 1187, 1190-91 (9th Cir. 1973). 7 The remining factors were not raised by defendant in opposing amendment and therefore, favor 8 || amendment. 9 CONCLUSION 10 For the foregoing reasons, the Court finds good cause to allow plaintiff leave to amend her 11 || complaint and therefore, GRANTS plaintiff's Motion (ECF No. 16). 12 ACCORDINGLY, 13 IT IS ORDERED that: 14 1. The Motion to Amend (ECF No. 16) is GRANTED. 15 2. Plaintiff must file her proposed Amended Complaint by May 20, 2025. 16 17 DATED: May 16, 2025. . Spy — i fF aw 18 IT IS SO ORDERED. , iP ) 19 —_ 4 A és Het. Maximiliah6 D. Gouvillier II 20 United States os Judge 21 22 23 24 25