Jacobs v. Wal-Mart Stores, Inc., No. 3:2017cv05988 - Document 145 (W.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, granting 93 Motion for Leave to Amend Answer, denying in part 71 . Signed by Judge Robert J. Bryan. (JL)
Download PDF
<![CDATA[
Jacobs v. Wal-Mart Stores, Inc. Doc. 145 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 LORI JACOBS, 12 13 v. CASE NO. 3:17-cv-05988-RJB Plaintiff, WAL-MART STORES, INC., 14 Defendant. ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 15 16 17 18 19 20 21 22 23 THIS MATTER comes before the Court on two matters, Defendant’s Motion for Leave to Amend Answer, Dkt. 93, and Plaintiff’s Motion for Partial Summary Judgment. Dkt. 71. Defendant’s Motion for Leave to Amend Answer seeks leave to add three affirmative defenses, two of which are opposed by Plaintiff in her Motion for Partial Summary Judgment. Id. at 22-24. Other than the extent to which this Order addresses leave to amend for Defendant’s proposed affirmative defenses, this Order does not reach the merits of Plaintiff’s motion for summary judgment. 24 ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 In summary, Defendant’s motion for leave should be granted, and Plaintiff’s motion should be denied in part to the extent it seeks to preclude leave to amend. 3 1. Background. 4 This action was initiated by Complaint on November 28, 2017, and Defendant filed an 5 Answer on March 6, 2018. Dkts. 1, 14. The Scheduling Order set deadlines, including those for 6 discovery (October 29, 2018), dispositive motions (November 27, 2018), and trial (February 15, 7 2019). Dkt. 13. On November 8, 2018, Plaintiff filed a Motion for Partial Summary Judgment. 8 Dkt. 71. Plaintiff’s motion seeks to preclude two affirmative defenses not previously raised, 9 undue hardship and failure to mitigate damages. Id. at 22-24. On November 15, 2018, Defendant 10 filed this pending motion, seeking leave to amend its Answer to add several affirmative defenses. 11 Dkt. 93. 12 The Answer filed by Defendant on March 6, 2018 raises two affirmative defenses: 13 1. Plaintiff fails to state . . . claims upon which relief can be granted. 14 2. Giving customers injections became part of the essential functions of all Wal-Mart pharmacists as of April 15, 2017, and Defendant attempted to work with Plaintiff after that date in an attempt to find other positions which did not require giving injections[.] 15 16 17 18 19 20 21 22 23 24 Id. at 4. The Proposed Amended Answer (PAA) proposes three additional affirmative defenses: (1) undue hardship, (2) failure to mitigate damages, and (3) judicial estoppel. Dkt. 94-1 at 86-92. Defendant would sustain undue hardship, the PAA alleges, because of the financial hardship that would result from two suggested accommodations, double staffing pharmacists whenever Plaintiff is on duty, or asking immunization customers to return on another date or time, which would decrease customer satisfaction and retention. Id. at ¶8. The PAA alleges that Plaintiff failed to mitigate damages by not making reasonably diligent efforts to secure other employment. ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 2 1 Id. at ¶6. The PAA alleges that Plaintiff is judicially estopped from alleging a “disability” 2 because of incompatible contentions made in her application for Social Security benefits, and as 3 a result, any claims for lost pay or future pay should be barred or offset by any benefits received. 4 Id. at ¶¶5, 7. 5 2. Rule 15 standard. 6 “Rule 15(a) is designed to facilitate decision on the merits, rather than on the pleadings or 7 technicalities.” Chudacoff v. Univ. Med. Ctr. of S. Nevada, 649 F.3d 1143, 1152 (9th Cir. 8 2011).Under Fed. R. Civ. P. 15(a)(2), “a party may amend its pleading only with the opposing 9 party's written consent or the court's leave. The court should freely give leave when justice so 10 requires.” This is a policy to be applied with extreme liberality. Owens v. Kaiser Found. Health 11 Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). Courts may consider numerous factors, including 12 undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments 13 previously allowed, undue prejudice to opposing parties, harm to the movant if leave is not 14 granted, and futility of the amendment. Foman v. Davis, 37 U.S. 178, 182 (1962); Eminence 15 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Prejudice is the touchstone of 16 the inquiry, wherein “[n]ot all of the factors merit equal weight.” Id. 17 3. Discussion. 18 Before applying the Foman factors, the Court should first address two preliminary 19 20 arguments raised by Plaintiff. Plaintiff argues that before analyzing leave to amend under Rule 15(a), the Court must 21 first find “good cause” to modify the Scheduling Order under the more stringent standard of Rule 22 16. Dkt. 98 at 2. The argument lacks merit, because there is no deadline for filing motions for 23 leave to amend in the Scheduling Order. See Dkt. 13 at 1. If the motion for leave to amend 24 ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 3 1 proposed to join parties, the good cause standard would apply, because the Scheduling Order set 2 an April 30, 2018 deadline for motions to join parties, see id. at ln 14, but the motion for leave 3 here seeks to add affirmative defenses. The Scheduling Order has no deadline for filing motions 4 for leave to amend generally or for asserting affirmative defenses, so Rule 16 is inapposite. The 5 proper framework for analyzing Defendant’s motion is Rule 15, and the Foman factors. 6 Plaintiff argues that the affirmative defenses proposed should have been pleaded 7 affirmatively by Defendant under Rule 8. Dkt. 71 at 22. Defendant does not directly respond to 8 this argument. See Dkt. 83; Dkt. 107 at 9, 10; Dkt. 144. Rule 8(c)(1) enumerates defenses that 9 must be affirmatively stated, including “estoppel,” a doctrine arguably related to judicial 10 estoppel. Undue hardship and failure to mitigate are not specifically listed in the non-inclusive 11 list of defenses that must be affirmatively stated. See Fed. R. Civ. P. 8(c)(1). Ultimately, 12 however, whether the three proposed affirmative defenses must be affirmatively stated or not is 13 immaterial, because Defendant has affirmatively proposed them. 14 Turning first to prejudice, the Court finds that Plaintiff will suffer only minimal 15 prejudice, if any. As developed in Defendant’s motion, and apparent from the attachments 16 thereto, all three proposed affirmative defenses were explored in discovery. Plaintiff explored 17 financial hardship to Defendant through multiple witnesses. Dkt. 94-1 at 27, 28, 33, 50. At 18 Plaintiff’s deposition, Defendant queried Plaintiff about searching for other jobs, an issue also 19 addressed in an expert report. Dkt. 72-2 at 80, 81; id. at 62, 63. At the deposition of Mr. Jon 20 Jacobs, Defendant inquired about Plaintiff’s social security benefits, and disability benefits had 21 been at least partially disclosed previously. Dkt. 69 at ¶11; Dkt, 49 at 2 ¶5, 20-25. None of the 22 subject areas should surprise Plaintiff. In fact, at least as to the undue hardship and failure to 23 mitigate affirmative defenses, it could be argued, although Defendant has not done so, that 24 ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 4 1 neither affirmative defense need be affirmatively pleaded, and Defendant has only developed its 2 counter-evidence, with no formal pleading and notice required. See Fed. R. Civ. P. 8(c)(1). 3 Plaintiff argues that prejudice is “inherent” by Defendant’s belated amendment, and that 4 late change will require the reopening and repeat of discovery, increasing the cost of litigation 5 and potentially delaying trial. Dkt. 98 at 4, 5. Plaintiff offers no specifics about how many 6 witnesses or what written discovery remains outstanding, see id., with two exceptions, when 7 opining that Defendant has not produced discovery on (a) suitable Wal-Mart jobs that Plaintiff 8 should have applied for, and (b) the financial hardship on Defendant for accommodations. Dkt. 9 71 at 23, 24. If not already produced, any discovery on these two issues should be requested and 10 produced immediately. This Order makes no ruling on whether any particular discovery is 11 admissible evidence at trial. 12 These two objections aside, the three proposed affirmative defenses center on information 13 already explored and/or in Plaintiff’s control or possession. In short, Plaintiff has not shown that 14 it will be materially prejudiced if Defendant is permitted to pursue its three proposed affirmative 15 defenses, especially where Defendant, not Plaintiff, has the burden to prove affirmative defenses 16 at trial. See, e.g., Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir.1978) (failure to 17 mitigate). 18 Next, considering bad faith, this factor favors Defendant. According to Plaintiff, bad faith 19 is illustrated by Defendant deliberately failing to plead the three proposed affirmative defenses 20 until now, where Defendant “conceded during discovery that there is no evidence to support 21 them, yet now bring[s] an untimely delayed motion[.]” Dkt. 98 at 6. Nothing in the record 22 supports the conclusion that Defendant’s delay was deliberate. There is no showing of bad faith. 23 24 ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 5 1 Next, the futility factor favors Defendant, because the record supports at least an initial, 2 preliminary showing for each affirmative defense. For the undue burden affirmative defense, the 3 record indicates that, in Defendant’s view, requesting injection customers to return at a later date 4 or time would cause “significant difficulty or expense.” See 42 U.S.C. § 12111(10) (definition of 5 undue hardship). Although Defendant has not attached a specific dollar amount or analysis to its 6 alleged hardship, the defense has been developed through deposition testimony and an expert 7 report. Dkt. 94-1 at 28; Dkt. 103-1 at 81-85. 8 For the failure to mitigate affirmative defense, Plaintiff argues that Defendant has no 9 evidence that a suitable position opened that Plaintiff could have applied to, but did not. Dkt. 98 10 at 6. However, as Defendant highlights, Dkt. 107 at 10, at least some facts support Defendant’s 11 view that Plaintiff should have applied for jobs, but did not. Dkt. 94-1 at 81, 82; Dkt. 102 at 24, 12 citing Dkt. 103-1 at 83, 84. 13 For the affirmative defense of judicial estoppel, Defendant theorizes that because Plaintiff 14 is “disabled” for WLAD purposes and receives disability benefits, she cannot simultaneously 15 claim that she is not disabled under the ADA and that she can perform the essential job functions 16 of a pharmacist. Dkt. 107 at 9. If she is disabled, Defendant’s argument continues, Defendant 17 should be entitled to an offset of any benefits received. Dkt. 93 at 11. Plaintiff argues that the 18 defense is inapplicable, because a Social Security benefits hearing is not a “judicial proceeding,” 19 and the definition of “disability” applicable to her disability proceedings differs from the 20 definition applicable to an ADA claim. Dkt. 98 at 6-8. 21 22 The parties’ arguments on this defense are legal in nature and intertwined with the merits of their summary judgment motions. To avoid prematurely reaching the merits of the parties’ 23 24 ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 6 1 summary judgment motions, the Court should refrain from analyzing the parties’ arguments, 2 suffice to find that it does not appear beyond doubt that this this defense is futile. 3 Finally, considering undue delay, this factor favors Plaintiff. Plaintiff argues that 4 Defendant has no excuse for its undue delay, because considerable time has passed since 5 Defendant had knowledge of the facts underlying the three additional proposed affirmative 6 defenses. Dkt. 98 at 4. Defendant tacitly acknowledges its own delay, arguing that it “moves to 7 conform its technical pleading to the evidence that has been developed here through 8 discovery[.]” Dkt. 144 at 2. 9 In conclusion, on balance, the Foman factors favor granting leave to amend. Although the 10 undue delay factor favors Plaintiff, the factors need not be weighed equally, and the prejudice 11 factor, which favors Defendant, is the touchstone of the inquiry. Eminence Capital, LLC, 316 12 F.3d at 1052. Defendant’s motion for leave to amend granted. Defendant should file a clean copy 13 of its Amended Answer within five (5) days of the issuance of this Order. Plaintiff’s motion for 14 summary judgment should be denied to the extent the motion seeks to preclude leave to amend. 15 Other than reaching the issue of whether Defendant should be granted leave to amend, 16 this Order makes no findings on the merits of the three proposed affirmative defenses as raised 17 by Plaintiff’s motion for summary judgment. 18 *** 19 THEREFORE, it is HEREBY ORDERED that Defendant Wal-Mart Stores, Inc.’s 20 Motion for Leave to Amend Answer (Dkt. 93) is GRANTED. Defendant Wal-Mart shall file the 21 Amended Answer forthwith, but not later than five (5) days from issuance of this Order. 22 23 Plaintiff Lori Jacobs’ Motion for Partial Summary Judgment (Dkt. 71 at 22-24) is DENIED IN PART as to the request to preclude leave to amend. 24 ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 7 1 IT IS SO ORDERED. 2 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 3 4 5 6 7 to any party appearing pro se at said party’s last known address. Dated this 3rd day of December, 2018. A ROBERT J. BRYAN United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
