United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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.
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.)
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. Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 608-09 (9th Cir. 1992).
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.
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.
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.)
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 ...