Stilwell, Jr. v. Caesars Entertainment

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 * * *

8 STANLEY E. STILWELL, JR., Case No. 2:19-cv-01896-KJD-VCF

9 Plaintiff, ORDER

10 v.

11 CAESARS ENTERTAINMENT CORPORATION, et al., 12 Defendants. 13 Presently before the Court is Defendant Caesars Entertainment Corporation’s Motion to 14 Dismiss (#43). Plaintiff filed a response in opposition (#46) to which Defendant Casesars replied 15 (#47). 16 I. Background 17 On March 22, 2021, the Court granted (#40) Defendant Bartender’s Union Local 165’s 18 initial motion to dismiss because it found that Plaintiff had failed to appropriately plead his claim 19 that the Union failed to adequately represent him. However, the Court granted Plaintiff leave to 20 file an amended complaint to correct the deficiencies in his claim. When Plaintiff filed his First 21 Amended Complaint (#41), in addition to adding allegations to his fair representation claim, he 22 added a claim under the Family Medical Leave Act, 29 CFR 825 et seq. (“FMLA”) against 23 Defendant Caesars. Defendant Caesars now moves to dismiss this claim, because Defendant did 24 not first seek permission of the Court to file it. 25 Plaintiff’s initial Complaint (#1) was filed on October 25, 2019. The Union moved to 26 dismiss the complaint on March 10, 2020. The deadline to file a motion to amend the pleadings 27 was June 8, 2020 (#11). 28 1 II. Analysis 2 Generally speaking, a party may amend their pleadings “as a matter of course” before a 3 responsive pleading has been served. Fed. R. Civ. Pr. 15(a). After that, a party may amend their 4 pleadings “only by leave of the court...[which] leave shall be freely given when justice so 5 requires.” Id. In such instances, the Court would balance the strong policy towards permitting 6 amendment versus “undue delay, bad faith or dilatory motive on the part of the movant, repeated 7 failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing 8 party by virtue of allowance of the amendment, futility of amendment, etc.” See Schlacter-Jones 9 v. General Telephone, 936 F.2d 435, 443 (9th Cir. 1991) (quoting Foman v. Davis, 371 U.S. 178, 10 182 (1962)). 11 However, where the Court has filed a pretrial scheduling order that has established a 12 timetable or deadline for amending the pleadings, the Court will consider proposed amendments 13 under Federal Rule of Civil Procedure 16(b). That rule requires that the schedule for amending 14 pleadings not be modified without a showing of good cause for failure to amend within the time 15 specified in the scheduling order. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th 16 Cir. 2000). This standard “primarily considers the diligence of the party seeking the 17 amendment.” See Johnson v. Mammoth Recreations, Inc. 975 F.2d 604, 608 (9th Cir. 1992). A 18 scheduling order (#14) was issued in this case that set June 8, 2020 as the deadline for amending 19 the pleadings. Therefore, the Court will review Plaintiff’s untimely addition of the FMLA claim 20 under Rule 16's good cause standard, because the amendment was filed well past the deadline set 21 in the discovery scheduling order and without prior authorization of the Court. 22 In fact, Plaintiff agrees that the amendment is untimely and asserts that he intends to seek 23 a stipulation to amend or move for leave to amend pursuant to Rule 15. However, Plaintiff does 24 not explain the failure to file a motion to amend before the expiration date of the amendment 25 deadline in the scheduling order. Further, even though Plaintiff knew the claim existed before the 26 expiration of the deadline, Plaintiff has had twenty months in which to file a motion to amend 27 and has failed to do so. Accordingly, the Court finds that Plaintiff has failed to show good cause 28 for his failure to amend within the allowed time. Additionally, Plaintiff’s failure to file a motion 1 | to amend following the expiration of the deadline is inexcusable. Therefore, the Court grants 2 | Defendant’s motion to dismiss Plaintiff's claim arising under the FMLA. Ill. Conclusion 4 Accordingly, IT IS HEREBY ORDERED that Defendant Caesars Entertainment 5 | Corporation’s Motion to Dismiss (#43) is GRANTED; 6 IT IS FURTHER ORDERED that Plaintiff's fifth cause of action for violation of the FMLA is DISMISSED. 8 | Dated this 28th day of February, 2022. J Oo 10 Kent]. Dawson SOS 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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