United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND
J. BRYAN United States District Judge
matter comes before the Court on the Plaintiff's Motion
for Leave to Amend Complaint. Dkt. 74. The Court has
considered the pleadings filed regarding the motion and the
December 15, 2015, Plaintiff, a gay man, filed this case
asserting that he was hired by Defendant Lewis County
Hospital District No. 1 (“Hospital District”) as
the Chief Financial Officer of Morton General Hospital
(“Morton”) on November 21, 2014 by Hiram Whitmer,
the Chief Executive Officer of Morton. Dkt. 1, at 3.
Plaintiff maintains that his employment at the hospital was
improperly terminated less than two months later based on his
sexual orientation. Id. Plaintiff asserts claims for
violation of his procedural due process and equal protection
rights under the U.S. Constitution and for violations of the
Washington Law Against Discrimination, RCW 49.60, et.
seq. (“WLAD”). Dkt. 1. Plaintiff seeks
damages, attorney's fees, and costs. Id.
BACKGROUND FACTS AND PENDING MOTION
the background facts are in the February 7, 2017 Order on
Plaintiff's Motion for Order of Partial Summary Judgment,
and are adopted here. Dkt. 73, at 2-13.
early February, the parties made various efforts to take Mr.
Whitmer's deposition in Seattle, Washington in accord
with prior discussions between the parties and Mr. Whitmer.
Dkt. 78, at 5-20. (It appears that Mr. Whitmer now resides
Missouri. Id.) On February 12, 2017, Mr.
Whitmer's attorney notified the Plaintiff and Defendants
that Mr. Whitmer was “not available for
deposition.” Dkt. 78, at 21. Defendants wrote to Mr.
Whitmer's counsel on February 13, 2017, to discuss how to
move forward with the deposition. Dkt. 78, at 31.
Defendants' counsel sent a revised notice and subpoena,
setting Mr. Whitmer's deposition for February 28, 2017,
in Kansas City, Missouri. Dkt. 78, at 31-38.
February 14, 2017, Mr. Whitmer's lawyer emailed
Defendants' attorneys and, as is relevant here, indicated
that “Mr. Whitmer is not available for deposition,
neither here nor in Missouri. . . Mr. Whitmer is now firm in
his decision to protect his family and is backing away from
testifying in Mr. Carlson's lawsuit.” Dkt. 78, at
43. Defendants' attorneys forwarded this email to
Plaintiff's lawyer that same day. Dkt. 78, at 45.
filed the pending Motion for Leave to Amend Complaint on
February 16, 2017. Dkt. 74. In this motion, Plaintiff
acknowledges that both parties are having difficulty getting
Mr. Whitmer's cooperation for a deposition. Id.
He asserts that “Mr. Whitmer's testimony is very
important to [Plaintiff's] case, ” and adding Mr.
Whitmer as a defendant “is necessary to preserve
[Plaintiff's] ability to present his case.”
response, the Defendants argue that Plaintiff has not shown
good cause for an extension of the deadline to add parties
and has not met the standard for amending his complaint under
Fed.R.Civ.P. 15. Dkt. 76. They point out that Plaintiff's
stated reason for adding Mr. Whitmer (to enable Plaintiff to
compel Mr. Whitmer's testimony at trial) is not a proper
basis for amendment. Id. The Defendants note that
the Federal Rules of Civil Procedure have a process for
compelling reluctant out-of-state witnesses to cooperate.
Id. (discussing Rules 45 and 32).
replies and argues that the process to obtain Mr.
Whitmer's testimony, as provided in the federal rules,
isn't practical because each side needs two full days
regarding the waiver of attorney client privilege, then there
needs to be time for in camera review of the
testimony, and then parties would need another two full days
of preservation deposition of Mr. Whitmer, resulting in four
days of depositions. Dkt. 79. Plaintiff asserts that he
“cannot compel the necessary deposition time of Mr.
Whitmer” due to Rule 45's prohibition of subjecting
a witness to undue burden, and Rule 30's time limits.
discovery deadline is March 17, 2017 and trial is set to
begin on May 22, 2017. Dkt. 73, at 23.
Civ. P. 16 (b)(4) provides that a case “schedule may be
modified only for good cause and with the judge's
consent.” The deadline to amend the pleadings to add
parties has expired. Accordingly, Plaintiff must show good
cause for alteration of the case schedule. It appears
appropriate to allow a late filing of a motion to amend in
light of Mr. Whitmer's apparent change in his willingness
to assist Plaintiff. See Coleman v. Quarter Oats
Co., 232 F.3d 1271, 1294 (9th Cir. 2000)(noting that,
generally, Rule 15(a) governs amendment of pleadings, but
where the district court's deadline for amendment of the
pleadings passed, the district court properly considered
whether the plaintiff had shown good cause under Rule 16(b)).
motion to amend (Dkt. 74) should be denied without prejudice.
While Plaintiff has shown good cause under Rule 16 for an
extension of the deadline to add Mr. Whitmer as a defendant
in this matter, Plaintiffs difficulty in getting Mr. Whitmer
to cooperate in a deposition does not provide a basis to add
Mr. Whitmer as a defendant in this case. It will be a
different matter if ...