Peterson v. Acumed LLC, No. 3:2010cv00586 - Document 26 (D. Or. 2010)
Court Description: OPINION AND ORDER: Defendant's Motion to Amend its Answer, Affirmative Defenses, and Counterclaims 15 is GRANTED. Signed on 12/14/10 by Magistrate Judge Dennis J. Hubel. (see formal opinion) (kb)
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Peterson v. Acumed LLC Doc. 26 1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE DISTRICT OF OREGON 12 PORTLAND DIVISION 13 JEFFREY R. PETERSON, 14 Plaintiff, 15 v. 16 ACUMED, LLC, 17 ) ) ) ) ) ) ) ) CV-10-586-HU ) Defendant. No. OPINION & ORDER ) ) 18 19 20 Paul Breed 815 SW Second Ave., Suite 500 Portland, OR 97204 21 Attorney for Plaintiff 22 23 24 25 Courtney Angeli Buchanan Angeli Altschul & Sullivan LLP 321 SW Fourth Ave., Suite 600 Portland, OR 97204 Attorney for Defendant 26 27 28 Dockets.Justia.com 1 HUBEL, Magistrate Judge: 2 3 Before the court is defendant Acumed, LLC's Motion to Amend 4 its Answer, Affirmative Defenses, and Counterclaims [#15]. 5 the reasons set forth below, I grant the motion. For 6 Facts 7 Plaintiff Jeffrey Peterson worked for defendant Acumed LLC as 8 a controller. On January 12, 2010, Peterson alleges a conversation 9 with Acumed s president, David Jensen, about resigning from the 10 company in which plaintiff claims he was promised that in exchange 11 for his resignation, he would be given severance benefits better 12 than another employee who had previously left the company. Jensen 13 allegedly knew that the severance package was worth six months of 14 salary plus a $35,000 bonus. According to Peterson, he accepted 15 Jensen s offer. 16 Following Peterson s conversation with Jensen, Peterson 17 allegedly discussed severance with Acumed human resources employee 18 Noel Van Dyke. Van Dyke allegedly informed Peterson that no 19 commitments regarding severance could be made without the approval 20 of Colson Associates, and that the terms of severance packages were 21 confidential. 22 Peterson ended his employment on or about March 5, 2010, at 23 which time Acumed offered him a severance agreement that provided 24 for only five months' pay. 25 /// 26 /// 27 28 2 OPINION AND ORDER 1 Procedural History 2 On May 24, 2010, Peterson filed this lawsuit, contending that 3 an oral contract had been formed between himself and Jensen. 4 demanded six months pay, or $70,000, plus a $35,000 bonus, the 5 value of six months of health insurance, or $6,000, and statutory 6 penalties for the allegedly late wages. He 7 On June 17, 2010, Acumed filed its Answer, stating affirmative 8 defenses of failure to state a claim, no consideration, and wages 9 timely paid. 10 On July It did not file any counterclaims with the Answer. 21, 2010, Acumed served its First Request for 11 Production on Peterson. 12 disclosures on July 22, 2010. 13 a copy of the severance agreement that Acumed had negotiated with 14 a 15 retained. former employee, Sue Peterson served Acumed with his initial Included with those disclosures was Richardson1, and which Peterson had 16 On August 3, 2010, this court held a Rule 16 conference. 17 the conference the attorneys advised me that depositions were 18 scheduled for September 22-23, 2010. 19 attorneys the need for a deadline to amend a pleading so discovery 20 could proceed on finalized pleadings, I set a deadline of September At After discussing with the 21 22 1 23 24 25 26 Although Peterson's deposition testimony is clear that he retained a copy of Sue Richardson's severance agreement, for reasons not clear to the court, the parties' briefs refer to the retained severance agreement as the "Mockridge Agreement." See Decl. Courtney Angeli Ex. A, at 3; Pl.'s Mem. Opposition Def.'s Mot. Amend, at 2. For purposes of this opinion, the distinction is irrelevant and the court will refer to the Richardson agreement. 27 28 3 OPINION AND ORDER 1 17, 2010, to amend any pleading to add a party, claim, or defense. 2 All discovery was set to close on October 29, 2010. 3 On September 1, 2010, Peterson responded to Acumed's Request 4 for Production, and produced, among other things, an email that 5 Peterson had written to his parents that disclosed the terms of his 6 severance agreement. 7 On September 21, 2010, Acumed learned that Peterson had 8 retained a copy of a law firm bill to Acumed for, among other 9 things, consultation about Peterson's termination. 10 On September 22, 2010, Acumed s attorneys deposed Peterson and 11 learned that he had disclosed the terms of his alleged severance 12 agreement 13 Peterson had kept the Richardson agreement because it was of 14 interest 15 agreement. 16 During to other to him the third with month parties. respect of to October Acumed his own Acumed also learned expected that severance unsuccessfully sought 17 Peterson's consent to amend its answer to add claims and defenses 18 based on documents received in discovery and Peterson's deposition 19 testimony. 20 for Leave 21 Counterclaims. 22 of Unclean Hands and After Acquired Evidence, and counterclaims for 23 Breach of Contract and Breach of Fiduciary Duty. On October 27, 2010, Acumed filed the instant Motion to Amend Answer and Affirmative Defenses, and Add Specifically, it seeks to add affirmative defenses 24 Standards 25 If a district court enters a pretrial scheduling order that 26 sets a deadline to amend pleadings, and a party moves to amend 27 28 4 OPINION AND ORDER 1 pleadings after the deadline, the court should evaluate the motion 2 under FRCP 16 and its good cause standard, not FRCP 15. 3 Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) ( the district 4 court correctly found that it should address the issue under 5 Federal Rule of Civil Procedure 16 because it had filed a pretrial 6 scheduling order that established a timetable for amending the 7 pleadings, and the deadline had expired before [the parties] moved 8 to amend. ) 9 Coleman v. 14 A court's evaluation of good cause is not coextensive with an inquiry into the propriety of the amendment under ... Rule 15. Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s good cause standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension. 15 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 16 1992). 10 11 12 13 17 18 Discussion I. Good Cause 19 A party meets the good cause standard if it shows that despite 20 its diligence, it was unable to uncover the information underlying 21 its motion to amend. Mammoth Recreations, 975 F.2d at 609. But 22 where conduct[] pay 23 attention to the responses they receive[], the attorneys frustrate 24 the kind of case management that Rule 16 is designed to eliminate 25 and fail[] to establish good cause. 26 the attorneys but fail[] to Id. at 610. Acumed contends that leave to amend should be given freely, and 27 28 discovery 5 OPINION AND ORDER 1 that it could not have amended earlier because it did not learn of 2 the facts underlying the claims and defenses until it deposed 3 Peterson on September 22, five days after the deadline to amend a 4 pleading. 5 deposed him earlier, that his production of documents contained 6 information that pointed to the defenses and counterclaims, and 7 that Acumed s motion does not show good cause for not raising these 8 issues before the deadline for amendment. Peterson argues that Acumed could have and should have 9 At the Rule 16 conference on August 3, after discussing with 10 the attorneys whether either party might bring additional claims, 11 I set the deadline to amend a pleading for five days before the 12 depositions. 13 claims 14 depositions. 15 that it may seek to add claims, depending on the information 16 learned at the deposition at the Rule 16 conference this could have 17 been addressed in setting the schedule. There is a tension between 18 the need to have all the issues identified before the depositions 19 and the need for depositions to disclose or complete disclosure of 20 the issues involved in the claims and defenses. 21 the reason I discuss both the deadline for amended pleadings and 22 for fact discovery at the same time in a Rule 16 conference. and I set the deadline in order that all the relevant defenses would be disclosed by the time of the If Acumed had advised the plaintiff and the court This tension is 23 At oral argument, Acumed's attorney noted that she was aware of 24 the possibility of additional claims and defenses prior to the 25 amendment deadline, but did not have a good faith basis to bring 26 those claims and defenses 27 28 6 OPINION AND ORDER until after completing plaintiff's 1 deposition. 2 counsel, once she was aware of the possible need to amend, to raise 3 that issue with plaintiff's counsel and either request a change in 4 the deadline to amend or to take plaintiff's deposition before the 5 deadline. 6 the specific facts of this case, which leave a credible argument 7 that defendant did not yet have a Rule 11 good faith basis for 8 amendment before the deposition of plaintiff. 9 10 The better practice in this situation was for defense However, I will not deny the motion to amend in light of Accordingly, Acumed's motion to amend is granted. II. Form of Amendment 11 In its briefing and at oral argument, plaintiff argued that the 12 form of Acumed's proposed affirmative defenses and its proposed 13 statements of damages are insufficient in that they do not give 14 sufficient notice of their bases. 15 motion to dismiss standard applies to affirmative defenses as well 16 as to a plaintiff's claims, citing Barnes v. AT & T Pension Ben. 17 Plan-Nonbargained Program, ___ F.Supp.2d ___, 2010 WL 2507769, at 18 *4 (N. D. Cal. June 22, 2010) ( While neither the Ninth Circuit, 19 nor any other Circuit . . . has ruled on this issue, the vast 20 majority of courts presented with the issue have extended Twombly's 21 heightened pleading standard to affirmative defenses. ) 22 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007, the 23 standard for affirmative defenses was Rule 8's requirement of a 24 short and plain statement to give the opposing party fair notice 25 of the defense and the grounds upon which it rests. 26 Prior to Id. at *3. Here, the language of the proposed Answer reads, In light of 27 28 Peterson contends that the 7 OPINION AND ORDER 1 his inequitable conduct, plaintiff s claim for relief is barred by 2 the doctrine of unclean hands. Proposed Amended Answer ¶ 16. 3 The After Acquired Evidence defense reads, After acquired 4 evidence of breach of confidentiality renders plaintiff s alleged 5 severance contract unenforceable. Proposed Amended Answer ¶ 17. 6 The damages section of the Breach of Contract counterclaim 7 related to disclosure of the severance terms to third parties 8 reads, "As a result of Peterson's breach, Acumed was damaged in an 9 amount to be determined at trial." Proposed Amended Answer at ¶ 10 27. Similarly, the damages section of the Breach of Fiduciary Duty 11 counterclaim reads, "As a result of this breach, Acumed was damaged 12 in an amount to be proven at trial." 13 31. Proposed Amended Answer at ¶ 14 As written, the proposed defenses and the statements of damages 15 are not sufficiently particular to give Peterson notice of the 16 issues to address, nor do they provide sufficient limits to what 17 evidence will be relevant on these issues at trial. 18 files its amended answer, Acumed is directed to correct these 19 deficiencies. 20 III. Discovery Before it 21 Finally, at oral argument, Peterson advised the court that if 22 amendment were allowed, he would need to reopen discovery in order 23 to conduct additional depositions and ask for additional production 24 of documents. 25 additional discovery. 26 Accordingly, Acumed advised the court that it does not need I will 27 28 8 OPINION AND ORDER allow discovery to be reopened for 1 plaintiff only. 2 propose an amendment to the case schedule. Plaintiff shall consult with defense counsel and 3 4 5 6 Conclusion Defendants' Motion for Leave to Amend its Answer, Affirmative Defenses, and Counterclaims [#15] is granted. IT IS SO ORDERED, 7 8 Dated this 14th day of December, 2010. 9 10 /s/ Dennis J. Hubel 11 Dennis James Hubel United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 - OPINION AND ORDER
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