Bearden v. City of Ocean Shores, No. 3:2021cv05035 - Document 22 (W.D. Wash. 2021)
Court Description: ORDER granting Plaintiff's 11 Motion to Amend, signed by Judge Benjamin H. Settle. Plaintiff shall file his amended complaint within 14 days of this Order. (KMC)
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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 CASE NO. C21-5035 BHS TRAVIS BEARDEN, Plaintiff, 9 10 v. ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND CITY OF OCEAN SHORES, 11 Defendant. 12 13 This matter comes before the Court on Plaintiff Travis Bearden’s motion for leave 14 to amend. Dkt. 11. The Court has considered the briefing filed in support of and in 15 opposition to the motion and the remainder of the file and hereby grants the motion for 16 the reasons stated herein. 17 18 I. FACTUAL & PROCEDURAL BACKGROUND Bearden is an employee of the Ocean Shores Fire Department and is a reservist 19 and member of the Washington State National Guard. Dkt. 1, ¶¶ 3, 12. This action arises 20 out of Defendant City of Ocean Shores’ alleged violations of the Uniformed Services 21 Employment and Reemployment Rights Act (“USERRA”). Id. ¶ 27. Bearden now moves 22 to amend his complaint to add Crystal Dingler, the Mayor of Ocean Shores, as a 23 24 ORDER - 1 1 defendant for alleged violations of USERRA and the Washington Law Against 2 Discrimination (“WLAD”). Dkt. 11. 3 The Court set a deadline for amended pleadings to be filed by June 17, 2021. Dkt. 4 10. Bearden asserts that he served the City with discovery requests on April 23, 2021 and 5 that the City responded on June 1, 2021. Dkt. 11 at 2. The City listed Mayor Dingler and 6 former Fire Chief David Bathke as witnesses with firsthand knowledge in this case. Id. 7 Bearden’s counsel then interviewed Bathke and asserts that he learned of “an outrageous 8 pattern of conduct and conspiracy by Mayor Dingler.” Id. Bathke provided Bearden’s 9 counsel with a signed affidavit on July 22, 2021. Dkt. 14-1, ¶ 11. Bearden was then 10 deposed on July 27, 2021. Id. ¶ 12. Bearden’s counsel asserts that, because he did not 11 hear any contradictory evidence or testimony regarding the facts involving Mayor 12 Dingler, he filed the instant motion for leave to amend after the deposition. Id. ¶¶ 12–14. 13 Bearden filed the motion for leave to amend on July 27, 2021—after his 14 deposition. Dkt. 11. On August 9, 2021, the City responded. Dkt. 12. On August 12, 15 2021, Bearden replied. Dkt. 14. 16 17 18 II. DISCUSSION A. Rule 16 “[W]hen a party seeks to amend a pleading after the pretrial scheduling order’s 19 deadline for amending the pleadings has expired, the moving party must satisfy the good 20 cause’ standard of Federal Rule of Civil Procedure 16(b)(4), which provides that [a] 21 schedule may be modified only for good cause and with the judge’s consent, rather than 22 the liberal standard of Federal Rule of Civil Procedure 15(a).” In re W. States Wholesale 23 24 ORDER - 2 1 Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013) (internal quotations omitted). 2 This good cause standard “primarily considers the diligence of the party seeking the 3 amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 4 “If [the moving] party was not diligent, the inquiry should end.” Branch Banking & Tr. 5 Co. v. D.M.S.I., LLC, 871 F.3d 751, 764 (9th Cir. 2017) (quoting Johnson, 975 F.2d at 6 609). 7 The parties dispute whether Bearden has good cause to justify the amendment. 8 Bearden agues that, prior to the City’s responses to his discovery requests, he was 9 unaware of Bathke as a firsthand witness and that he has been diligent in verifying 10 Bathke’s assertions about Mayor Dingler. Dkt. 14 at 4–6. The City argues that Bearden 11 has presented no evidence as to why he could not have sought this amendment within the 12 deadlines. Dkt. 12 at 5. The Court concludes, however, that Bearden diligently pursued 13 and verified Bathke’s new assertions about Mayor Dingler’s involvement with this case 14 in accordance with his counsel’s Rule 11 obligations. Because Bearden was diligent and 15 new facts were learned and verified after the amendment deadline, the Court finds that 16 Bearden has good cause to amend his complaint. Thus, Rule 16 is satisfied, and the Court 17 turns to Rule 15 analysis. 18 B. 19 Rule 15 If a court finds good cause for leave to amend under Rule 16(a), the court next 20 considers, pursuant to Rule 15, the propriety of the amendment based on “(1) bad faith, 21 (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) 22 23 24 ORDER - 3 1 whether plaintiff has previously amended his complaint.” Allen v. City of Beverly Hills, 2 911 F.2d 367, 373 (9th Cir 1990). 3 The City asserts that the amendment amounts to undue delay and bad faith, would 4 be futile, and would prejudice it. Dkt. 12 at 6–7. As discussed above, the Court has 5 concluded that there is no undue delay to Bearden’s proposed amendment. Additionally, 6 there is no bad faith. Bad faith exists when the moving party seeks to amend merely to 7 prolong the litigation by adding “new but baseless legal theories.” Griggs v. Pace Am. 8 Grp., Inc., 170 F.3d 877, 881 (9th Cir. 1999). It includes amendments filed frivolously or 9 for an improper purpose. Westlake N. Prop. Owners Ass’n v. City of Thousand Oaks, 915 10 F.2d 1301, 1305 (9th Cir. 1990). Bearden and his counsel’s actions in moving the Court 11 for leave to amend do not amount to this high standard. The proposed amendments are 12 not intended to prolong the litigation nor were they filed frivolously or for an improper 13 purpose.1 The first two factors precluding amendment are not met. 14 The City also asserts that amendment would be futile as to Bearden’s proposed 15 WLAD claim against Mayor Dingler because Bearden testified that he has not suffered 16 any adverse job actions during his employment with the City. Dkt. 12 at 7–8. A court 17 may deny leave to amend “where the amendment would be futile . . . or where the 18 amended complaint would be subject to dismissal. Saul v. United States, 928 F.2d 829, 19 Bearden’s counsel asserts that he waited until after Bearden’s deposition to file the instant motion to ensure that no new contradictory facts were discovered and to ensure compliance with Rule 11. Dkt. 14-1, ¶¶ 13–14. Bearden’s counsel could have verified this information with his client prior to the deposition, but the delay from July 22, 2021 (the date of Bathke’s affidavit) to July 27, 2021 (the date of the motion’s filing) is not so great to amount to bad faith or undue delay. 1 20 21 22 23 24 ORDER - 4 1 843 (9th Cir. 1991). “[A] proposed amendment is futile only if no set of facts can be 2 proved under the amendment to the pleadings that would constitute a valid and sufficient 3 claim or defense.” Miller v. Rukoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988), 4 overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009). WLAD prohibits 5 employers from discriminating against any person in compensation or other conditions of 6 employment because of, inter alia, military status. RCW 49.60.180(2). Bearden’s 7 proposed amended complaint alleges that he was denied paid leave and that he suffered a 8 loss of earnings, among others. See Dkt. 11-1, ¶¶ 23–26. And though the full record is not 9 presently before the Court, it appears that economic damage was discussed during 10 Bearden’s deposition. Dkt. 14-1, Ex. B., at 12. Bearden has alleged (and apparently 11 testified to) the economic damage he has suffered sufficient to state a WLAD claim. The 12 City has therefore failed to show that Bearden’s amendment would be futile. 13 Similarly, there would be minimal prejudice to the City and Mayor Dingler. The 14 City asserts that because it concluded Bearden’s deposition, it cannot now question 15 Bearden as to his new claims and allegations. Dkt. 12 at 6. But the discovery deadline is 16 November 1, 2021, Dkt. 10, and the City’s counsel explicitly reserved the right to reopen 17 Bearden’s deposition, see Dkt. 14-1, Ex. B, at 13. The Court is not persuaded that the 18 City or Mayor Dingler would be substantially prejudiced by amendment to include 19 Mayor Dingler as a defendant or that the delay is sufficiently egregious to deny 20 amendment. AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953–54 (9th 21 Cir. 2006). If in light of the Court’s granting this motion the City finds that it requires 22 23 24 ORDER - 5 1 additional discovery to fairly present its case and prepare for trial, the Court would 2 consider a motion for a continuance. 3 4 III. ORDER Therefore, it is hereby ORDERED that Plaintiff Bearden’s motion for leave to 5 amend, Dkt. 11, is GRANTED. Bearden shall file his amended complaint within 14 days 6 of this Order. 7 Dated this 28th day of September, 2021. A 8 9 BENJAMIN H. SETTLE United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER - 6
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