United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
matter comes before the Court on Plaintiff's Motion for
Leave to File Second Amended Complaint. Dkt. # 45.
filed his original Complaint in the Central District of
California on July 7, 2016. Dkt. # 1. Plaintiff filed a First
Amended Complaint on September 15, 2016. Dkt. 14. Defendant
then filed a motion to transfer on October 12, 2016.
Plaintiff's case was transferred to this Court on
November 18, 2016. Dkt. ## 17, 25. On March 28, 2017, the
parties filed a Joint Status Report. In the Joint Status
Report, Plaintiff stated that he intended to file a Second
Amended Complaint. Dkt. # 43. On May 18, 2017, Plaintiff
filed this Motion. Dkt. # 45.
to pleadings is governed by Federal Rule of Civil Procedure
15(a). Rule 15(a) “provides that a party's right to
amend as a matter of course terminates 21 days after service
of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.”
Fed.R.Civ.P. 15(a)(1)(B). “In all other cases, a party
may amend its pleading only with the opposing party's
written consent or the court's leave. The court should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). “In exercising this discretion,
a court must be guided by the underlying purpose of Rule 15
to facilitate a 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).
this extremely liberal standard, the Court may deny leave to
amend after considering “the presence of any of four
factors: bad faith, undue delay, prejudice to the opposing
party, and/or futility.” Owens v. Kaiser Foundation
Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001).
But “[n]ot all of the factors merit equal weight ... it
is the consideration of prejudice to the opposing party that
carries the greatest weight.” Eminence Capital, LLC
v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
“Absent prejudice, or a strong showing of any of the
remaining [ ] factors, there exists a presumption under Rule
15(a) in favor of granting leave to amend.”
Id. The party opposing amendment bears the heavy
burden of overcoming this presumption. DCD Programs, Ltd.
v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
argues that Plaintiff has failed to perfect service in
accordance to Federal Rule of Civil Procedure 4 and that
Plaintiff's Second Amended Complaint cannot relate back
to his original Complaint. Defendant also argues that
Plaintiff's Second Amended Complaint contains new
allegations of retaliation under the Age Discrimination in
Employment Act of 1967 (“ADEA”) and that the
statute of limitations has passed on that claim. Defendant
requests that Plaintiff's original Complaint and First
Amended Complaint be struck under Federal Rule of Civil
Procedure 4(m), or in the alternative, that Plaintiff's
ADEA retaliation claim be struck from the Second Amended
filed his original Complaint one month after he received the
EEOC's right-to-sue notice, which was well within the
90-day statute of limitations. The Complaint specifically
refers to the ADEA and makes allegations of
retaliation. Dkt. # 1 ¶¶ 28-30. Thus,
Defendant had notice that Plaintiff intended to make
allegations of retaliation under the ADEA. As these claims
are not new, at issue is whether Plaintiff's Amended
Complaints can relate back to his original Complaint because
it was not properly served.
review of the record, it is clear Plaintiff failed to
properly serve his original Complaint. Federal Rule of Civil
Procedure 4(m) requires the Defendant to be served within 120
days after the complaint is filed. Fed.R.Civ.P. 4(m).
Plaintiff did not serve Defendant until after he filed his
First Amended Complaint on September 15, 2016. Dkt # 14. When
deciding whether to dismiss a complaint for a plaintiff's
failure to timely serve, the Court can consider the prejudice
that would be suffered by that plaintiff. Lemoge v.
United States, 587 F.3d 1188, 1195 (9th Cir. 2009). A
dismissal for untimely service is required to be a dismissal
without prejudice. United States v. 2, 164 Watches, More
or Less, Bearing a Registered Trademark of Guess?, Inc.,
366 F.3d 767, 772 (9th Cir. 2004). When the applicable
statute of limitations would bar the re-filed action, a
dismissal without prejudice would effectively become a
dismissal with prejudice. Id. Under circumstances
such as these, prejudice to Plaintiff is an important
consideration. See Id. at 1196.
of Plaintiff's original Complaint for failure to serve
Defendant would bar Plaintiff from filing his ADEA claim
would cause Plaintiff to suffer substantial prejudice. In
contrast, Defendant has not shown that it was prejudiced by
this failure. As noted in Defendant's Response, the
parties have had extensive interaction regarding this case,
and Defendant has both seen and reviewed Plaintiff's
Complaint, First Amended Complaint, and proposed Second
Amended Complaint. Dkt. # 51. Therefore, Defendant's
motion to strike the original Complaint and First Amended
Complaint is DENIED. Defendant's motion
to strike Plaintiff's ADEA retaliation claim from the
Second Amended Complaint is also DENIED.
the underlying purpose of Rule 15 is to facilitate a decision
on the merits, Plaintiff should be permitted an opportunity
to allege every relevant fact and argument in support of his
claims. Defendant had notice of Plaintiff's claims and
makes no argument that it was prejudiced in any way by
Plaintiff's failure to effect service. Defendant has
failed to meet its “heavy burden” of overcoming
the presumption in favor of liberal amendment.
foregoing reasons, the Court GRANTS
Plaintiff's motion for leave to file his Second Amended
Complaint. Dkt. # 45. Plaintiff shall file his proposed
amended complaint, filed as Docket No. 49, within twenty days
of the date of this order.
 The Court makes no determination as to
whether Plaintiff's ADEA claim is sufficiently pled at