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Cook v. Las Vegas Resort Holdings, LLC

United States District Court, D. Nevada

September 26, 2019

COY COOK, Plaintiff,
LAS VEGAS RESORT HOLDINGS, LLC d/b/a, SLS LAS VEGAS, a foreign limited liability company, Defendant.


          Gloria M. Navarro, District Judge.

         Pending 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).

         Also 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

         I. BACKGROUND

         This 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).

         Based 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.

         Defendant 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[1] and state law tort claims while maintaining his other claims.

         Plaintiff’s 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. ¶¶ 8–15).

         In 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 (1981).


         When a 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).

         When “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).


         Under 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) ...

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