Yomi v. Carlos del Toro

• Court: District Court, W.D. Washington
• Decided: July 11, 2024
• Docket: 3:23-cv-05199
• Status: Unknown

Opinion

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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 FRANCIS WOUKOP YOMI, CASE NO. C23-5199-KKE 8

Plaintiff(s), ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE 10 CARLOS DEL TORO, et al., COMPLAINT

11 Defendant(s).

12 Plaintiff Francis Woukop Yomi filed this action in April 2023, asserting claims that he had 13 exhausted before the Equal Employment Opportunity Commission (“EEOC”) related to his 14 employment with the United States Navy in July and August 2014. Dkt. No. 6. In April 2016, 15 Yomi voluntarily withdrew a retaliation/discrimination claim listed in his complaint (“Claim 7”) 16 while his complaint was pending before the EEOC. See Dkt. No. 46-3. Between the time of the 17 2016 withdrawal and May 2024, Yomi did not reference Claim 7 in the EEOC proceedings or in 18 this case. But on May 28, 2024, Yomi filed a motion for leave to amend his complaint to add 19 Claim 7 and to edit the wording of the claims listed in the initial complaint. Dkt. No. 46. 20 Defendant Carlos Del Toro, secretary of the Navy, does not oppose Yomi’s motion insofar as it 21 seeks to edit the wording of claims, but does oppose his request for leave to add Claim 7. Dkt. 22 No. 47. For the following reasons, the Court agrees that Claim 7 is time-barred and thus will allow 23 24 1 Yomi to amend his complaint to edit the wording of his claims, but will not grant leave to add 2 Claim 7. 3 After the passage of 21 days since the service of a responsive pleading to a complaint, a

4 plaintiff may thereafter amend the complaint “only with the opposing party’s written consent or 5 the court’s leave.” Fed. R. Civ. P. 15(a)(1)–(2). “The court should freely give leave when justice 6 so requires.” Id. A court “considers the following five factors to assess whether to grant leave to 7 amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of 8 amendment; and (5) whether plaintiff has previously amended his complaint.” In re W. States 9 Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (cleaned up), aff’d sub nom. 10 Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015). An amendment is futile if it would be subject to 11 dismissal. See Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991). 12 Here, allowing Yomi to add Claim 7 to this action would be futile because that claim is

13 time-barred, for the reasons outlined in Defendant’s partial opposition. Dkt. No. 47. Under Title 14 VII, which governs Yomi’s claims here (Dkt. No. 6 at 3), claimants have 90 days to file an action 15 in federal court after receiving notice from the EEOC that it will not act on their claim. See 42 16 U.S.C. §§ 2000e-5(f)(1), 2000e-16(c)–(d); 29 C.F.R. § 1614.407. Although Yomi withdrew Claim 17 7 while it was pending before the EEOC (Dkt. No. 46-3), and therefore did not receive a right-to- 18 sue letter or other order that explicitly referenced the 90-day deadline to file a federal lawsuit, he 19 did receive notice that his withdrawal was effective and that Claim 7 was no longer remaining in 20 his EEOC case. See Dkt. No. 48-3. Yomi did not take any subsequent action to exhaust Claim 7 21 for approximately eight years while litigating his complaint before the EEOC or when filing his 22 complaint in this federal action. The statute of limitations on Claim 7 therefore either expired 90

23 days after he received notice that his withdrawal of Claim 7 was effective (Dkt. No. 48-3 at 3 24 (dated June 10, 2016)), or 90 days after the issuance of his right-to-sue letter (Dkt. 48-5 (dated 1 December 6, 2020)). Under either scenario, Claim 7 is now time-barred and would be subject to 2 dismissal if Yomi added it to his amended complaint. 3 Yomi raises several arguments in his reply. Dkt. No. 40. First, Yomi contends that

4 Defendant’s opposition is untimely, but he is mistaken. Yomi’s motion was filed on May 28, 5 2024, and was therefore ripe on June 18, 2024, under the Local Rules of this district. See Local 6 Rules W.D. Wash. LCR 7(d)(2). Defendant’s response was due on June 12, 2024, and it was in 7 fact filed on that day. See Dkt. No. 47. And as to Defendant’s argument regarding the statute of 8 limitations, Yomi asserts that any actions taken while his complaint was pending with the EEOC 9 are irrelevant to his federal lawsuit. Dkt. No. 49 at 4. But, as discussed earlier, the statute of 10 limitations on claims presented to the EEOC starts running when the EEOC takes certain actions, 11 and Yomi cites no authority indicating that the clock restarts in federal court. Yomi is mistaken 12 that either Federal Rule of Civil Procedure 15 or 41 can revive a time-barred claim. Id.

13 Defendant has met his burden to show that allowing Yomi to add Claim 7 to this lawsuit 14 would be futile, and the Court thus will not grant leave for that purpose. But to the extent that 15 Yomi wishes to edit the wording of the claims listed in his original complaint, he has leave to do 16 so. The Court therefore GRANTS IN PART and DENIES IN PART Yomi’s motion for leave to 17 amend his complaint. Dkt. No. 46. Yomi may file an amended complaint no later than July 31, 18 2024. 19 Dated this 11th day of July, 2024. 20 A 21 Kymberly K. Evanson 22 United States District Judge

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