United States District Court, D. Nevada
M. Navarro, District Judge.
before the Court is Defendant Las Vegas Resort Holdings,
LLC’s (“Defendant”) Motion to Dismiss, (ECF
No. 8), regarding Plaintiff Coy Cook’s
(“Plaintiff) First Amended Complaint, (ECF No. 7).
Plaintiff filed a Response, (ECF No. 13), to which Defendant
filed a Reply, (ECF No. 14).
before the Court is Plaintiffs Motion to Amend/Correct its
First Amended Complaint, (ECF No. 29). Defendant filed a
Response, (ECF No. 32), and Plaintiff filed a Reply, (ECF No.
33). For the reasons stated below, Plaintiffs Motion to
Amend/Correct is GRANTED in part and
DENIED in part, and Defendant’s Motion
to Dismiss is DENIED as MOOT
case arises from Plaintiffs allegations of workplace
discrimination and retaliation while Defendant employed him
as a bartender at the Lobby Bar. (First Am. Compl.
(“FAC”) ¶¶ 1, 12-39, ECF No. 7).
Plaintiff alleges that Defendant disciplined him for conduct
other employees engaged in without consequence; and that when
he complained to Human Resources about the purportedly
discriminatory treatment, Defendant ultimately fired him in
retaliation. (Id. ¶¶ 19–39).
on Defendant’s alleged retaliatory and discriminatory
treatment, Plaintiff filed his Complaint, (ECF No. 1), on
August 22, 2018. Plaintiff then amended that Complaint as a
matter of right on October 3, 2018, (ECF No. 7). In the First
Amended Complaint, Plaintiff raises five claims: (1)
discrimination under Title VII and Nevada law; (2)
retaliation in violation of 42 U.S.C. § 2000e-3 and
Nevada Revised Statute (“NRS”) 613.340; (3)
violation of his civil rights under 42 U.S.C. § 1981
(“§ 1981”); (4) violation of his equal
protection rights under 42 U.S.C. § 1983 (“§
1983”); and (5) negligent supervision/retention/hiring.
moved to dismiss the First Amended Complaint on November 19,
2018. (Mot. Dismiss (“MTD”), ECF No. 8). In
Plaintiff’s Response, (ECF No. 13), he voluntarily
withdrew his § 1983 and state law tort claims while
maintaining his other claims.
current counsel, Michael J. Mcavoyamaya
(“Counsel”) maintains that he repeatedly tried to
timely amend the First Amended Complaint to state a claim for
breach of the Collective Bargaining Agreement
(“CBA”) against Defendant and non-parties
Bartenders Union Local 165 (“Union”) and Local
Joint Executive Board of Las Vegas (“Board”).
Plaintiff alleges that, despite Counsel’s diligent
efforts, he was unable to timely amend after the Court
unexpectedly denied the parties’ First Stipulation to
Stay Discovery and related deadlines before Counsel made an
appearance. (ECF No. 19–20); (Mot. Am.
(“MTA”) 5:8–19); (Decl. Michael J.
Mcavoyamaya (“Decl.”) ¶¶ 3–7, ECF
No. 29-1). Plaintiff further alleges that if the
Court’s June 20, 2019 Order granting the parties’
Stipulation to Stay Discovery and “modify the schedule
order accordingly” extended the deadline to timely
amend, he was unable to do so because prior counsel did not
respond to Counsel’s inquiries about substituting
counsel before the purported deadline passed. (Decl.
Plaintiff’s instant Motion to Amend/Correct the First
Amended Complaint, Plaintiff seeks to add the Union and the
Board as parties. Plaintiff also seeks to assert a Section
301 claim against the new parties and Defendant. (MTA
2:24–27, 4:2–10). Section 301 claims require that
an employee-plaintiff “establish both that the union
breached its duty of fair representation and that the
employer breached the collective-bargaining agreement.”
Clayton v. Int’l Union, 451 U.S. 679, 683 n.4
party moves to amend the pleadings after the expiration of
the deadline established in a court’s scheduling order,
courts review the request through a two-step process. First,
courts resolve the motion to amend the scheduling order,
which is governed by the “good cause” standard
outlined in Federal Rule of Civil Procedure
(“FRCP”) 16(b). See, e.g.,
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
608 (9th Cir. 1992). Under Rule 16(b), the “‘good
cause’ standard primarily considers the diligence of
the party seeking the amendment.” Id. at 609.
In particular, courts look to whether the deadline set in the
scheduling order “cannot reasonably be met despite the
diligence of the party seeking the amendment.”
Id. “[C]arelessness is not compatible with a
finding of diligence and offers no reason for a grant of
relief.” Id. Although prejudice to the
opposing party may also be considered, the focus of the
inquiry is on the movant’s reasons for seeking
modification. Id. “If that party was not
diligent, the inquiry should end.” Id. The
party seeking amendment bears the burden of establishing
diligence. See, e.g., Morgal v.
Maricopa County Bd. Of Sup'rs, 284 F.R.D. 452, 460
(D. Ariz. 2012).
“good cause” has been established under Rule
16(b), courts will then examine whether amendment is proper
under the standards outlined in Rule 15(a). Rule 15(a)
provides that “[t]he court should freely give leave [to
amend] when justice so requires, ” and there is a
strong public policy in favor of permitting amendment.
Fed.R.Civ.P. 15(a); Bowles v. Reade, 198 F.3d 752,
757 (9th Cir. 1999). As such, the Ninth Circuit has made
clear that Rule 15(a) is to be applied with “extreme
liberality.” Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (per
curiam). Under Rule 15(a), courts consider various
factors, including: (1) bad faith; (2) undue delay; (3)
prejudice to the opposing party; (4) futility of the
amendment; and (5) whether the plaintiff has previously
amended the complaint. See Id . at 1052. These
factors do not carry equal weight, however, and prejudice is
the touchstone of the analysis. See Id . The party
opposing the amendment bears the burden of showing why leave
to amend should be denied. See, e.g.,
Desert Protective Council v. U.S. Dept. of the
Interior, 927 F.Supp.2d 949, 962 (S.D. Cal. 2013). It is
proper for courts to deny leave to amend if the amendment
would be futile or the amended complaint would be dismissed.
Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522
F.3d 1049, 1060 (9th Cir. 2008).
the standard outlined in Rule 16(b) to amend the scheduling
order, the Court finds Plaintiff has established good cause
to amend its First Amended Complaint because of
Counsel’s diligence in seeking leave to amend. Counsel
indicated his desire to amend the First Amended Complaint to
Plaintiff’s prior counsel within the deadline provided
in the Court’s first Scheduling Order. (MTA
5:8–12); (Decl. ¶¶ 4, 6). Plaintiff only
failed to amend within the time provided because he relied on
prior counsel’s representation that the Court would
grant the Stipulation to Stay Discovery and thereby extend
the deadline to file an amended pleading. (MTA 5:15–5);
(Decl. ¶ 5). The stay would have enabled Counsel to file
the desired amendment within the time provided were it not
for the Court’s unanticipated denial of the
stipulation. See (Scheduling Order 2:4–8, ECF
No. 15) (setting the deadline to amend pleadings for April 3,
2019); (First Stip. to Stay Discovery, ECF No. 19)