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Miller v. United States

United States District Court, D. Nevada

March 15, 2018

JOHN MILLER, Plaintiff,
v.
UNITED STATES OF AMERICA, and DOES 1-25, Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court are Defendant United States of America's Motion to Dismiss (ECF No. 9) and Plaintiff John Miller's Motion for Leave to File First Amended Complaint (“Motion to Amend”) (ECF No. 24). The Court has reviewed the parties' responses and replies (ECF Nos. 10, 11, 26, 28). For the following reasons, the Court denies the Motion to Amend without prejudice and with leave to file a second amended complaint, rendering moot the United States' Motion to Dismiss.

         II. BACKGROUND

         Plaintiff filed a Complaint against the United States under the Federal Tort Claims Act (“FTCA”) on February 24, 2017, based on allegations that he was wrongfully terminated by the Bureau of Indian Affairs, an agency within the Department of the Interior. (ECF No. 1 at 7.) Plaintiff moved to amend his Complaint (ECF No. 24) after the United States moved to dismiss it (ECF No. 9). Plaintiff's initial Complaint did not expressly set out specific causes of action. (See ECF No. 1) Plaintiff's proposed First Amended Complaint (“FAC”) contains five express causes of action: (1) wrongful termination by breach of employment contract under the FTCA; (2) wrongful termination by retaliatory discharge under the FTCA; (3) wrongful termination in bad faith under the FTCA; (4) wrongful termination/tortious discharge under the FTCA; and (5) breach of contract. (ECF No. 24-1.)

         III. LEGAL STANDARD

         Rule 16 of the Federal Rules of Civil Procedure requires a court to enter a scheduling order that sets a time limit for amendments to pleadings. When a party seeks leave to amend after the deadline for amendment has expired, Rule 16 requires a showing of “good cause” for the late amendment.[1] Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992).

         If a party satisfies Rule 16, the party must also comply with Rule 15, which allows amendment only by leave of the court once responsive pleadings have been filed and in the absence of the adverse party's written consent. The court has discretion to grant leave and should freely do so "when justice so requires." Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (quoting Fed.R.Civ.P. 15(a)). Nonetheless, courts may deny leave to amend “due to ‘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, [and] futility of amendment.'” Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). “In exercising its discretion, ‘a court must be guided by the underlying purpose of Rule 15-to facilitate a decision on the merits rather than on the pleadings or technicalities.'" DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). A party opposing amendment bears the burden of showing prejudice. Id. at 187.

         IV. DISCUSSION

         The United States opposes Plaintiff's Motion to Amend only on the ground that such amendment would be futile. The Court evaluates the futility of Plaintiff's second and fourth claims, then turns to the futility of Plaintiff's first, third, and fifth claims.[2]

         A. Second and Fourth Claims

Plaintiff's second and fourth claims are for retaliatory and tortious discharge. (ECF No. 24-1 at 15, 18.) The United States first argues that amendment would be futile because Plaintiff failed to exhaust his administrative remedies with respect to these claims. (ECF No. 26 at 7.) The United States further argues that amendment would be futile because Plaintiff's proposed FAC fails to state claims for retaliatory and tortious discharge. (Id. at 8-9.)

         1. Exhaustion

         A plaintiff seeking to sue the United States under the FTCA must submit an administrative claim to the relevant federal agency for review before filing suit. See 28 U.S.C. § 2675(a). “The administrative claim need not be detailed; rather, ‘a skeletal claim form, containing only the bare elements of notice of accident and injury and a sum certain representing damages, suffices.'” S.H. by Holt v. United States, 853 F.3d 1056, 1063-64 (9th Cir. 2017) (Graber, J., concurring) (quoting Avery v. United States, 680 F.2d 608, 610 (9th ...


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