United States District Court, W.D. Washington, Seattle
RICHARD A JONES, District Judge.
This matter comes before the court on defendant Ceco Concrete Construction, LLC's motion for judgment on the pleadings (Dkt. # 41) and plaintiff Alan Manchester's third motion to amend complaint (Dkt. # 49). For the reasons set forth below, each motion is granted in part and denied in part.
This matter arises from a dispute regarding plaintiff's employment with defendant and subsequent discharge. In his First Amended Complaint ("FAC"), plaintiff alleged various claims against defendant, including: (1) breach of contract, (2) breach of implied duty of good faith, (3) quantum meruit, (4) unjust enrichment, (5) breach of implied employment agreement, (6) negligent misrepresentation, (7) promissory estoppel, and (8) violation of the Hawaii Revised Statutes ("HRS") § 388-10. Dkt. # 25.
On July 28, 2014, this court entered an order granting in part and denying in part defendant's motion to dismiss the FAC. Dkt. # 36. All of the aforementioned claims survived dismissal, except the negligent misrepresentation claim. The court dismissed that claim because the FAC failed to include "a single allegation that CECO was without the present intent to fulfill the promises relating to any future conduct." Dkt. # 36, p. 9. The court also declined to dismiss the contractual causes of action: breach of contract, breach of the implied duty of good faith and breach of implied employment agreement. The court found that although there was no written employment contract and no agreement for a definite term of employment, the allegations of the FAC taken together with the employment offer letter, plausibly suggested that Mr. Manchester was subject to a collective bargaining agreement ("CBA"). Dkt. # 36, pp. 3-4. The court reasoned that if Mr. Manchester were subject to a CBA, then his employment probably could not be terminated "at-will."
Plaintiff now seeks to amend his complaint to revive his cause of action for negligent misrepresentation. He also seeks to add allegations regarding his inability to "hire and fire" cement masons. It appears that plaintiff wants to add these allegations to establish that he was not a "supervisor" and, therefore, was in fact covered by the CBA.
Prior to plaintiff's filing of his motion to amend, defendant filed a motion for judgment on the pleadings, seeking judgment with respect to some or all of plaintiff's claims. Defendant makes alternative arguments regarding the impact of the CBA. According to defendant: (1) if plaintiff is subject to the CBA, then defendant is entitled to judgment as to all causes of action because plaintiff failed to timely file a grievance and has thereby waived his claims, or (2) if plaintiff is not subject to the CBA, then Defendant is entitled to judgment as to his contractual claims because no written instrument exists to support such claims.
A. Plaintiff's Motion to Amend the Complaint
(i) Legal Standard
Federal Rule of Civil Procedure 15(a) deals with amendments to pleadings. Once a responsive pleading has been filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities." Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1991); United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). Further, the policy of favoring amendments to pleadings should be applied with extreme liberality. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). That is not to say, however, that it should be given automatically. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1837 (9th Cir. 1990). Whether justice requires granting a party leave to amend is generally determined by reference to four factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party. United States v. Pend Oreille Public Utility Dist. No. 1, 926 F.2d 1502, 1511 (9th Cir. 1991).
(ii) Negligent Misrepresentation
The court will permit plaintiff leave to amend his negligent misrepresentation claim, but cautions plaintiff that the allegations in the proposed amended complaint are still insufficient. Plaintiff proposes to add a conclusory allegation that defendant was "without the present intention to fulfill the promises relating to any future conduct toward Mr. Manchester relating to his terms of employment." Dkt. # 49, p. 2. This unadorned allegation will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Rather, plaintiff must also ...