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Wesley v. CBS Radio Services, Inc.

United States District Court, W.D. Washington, Seattle

June 17, 2019

JESSE WESLEY, Plaintiff,
v.
CBS RADIO SERVICES, INC. et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT

          Robert S. Lasnik United States District Judge

         This matter comes before the Court on plaintiff's motion for leave to amend complaint. Dkt. #24.

         BACKGROUND

         On February 27, 2018, plaintiff Jesse Wesley filed a complaint in the King County Superior Court against defendants CBS Radio Stations, Inc. CBS Radio Services, Inc., CBS Broadcasting, Inc. (collectively, “CBS”), Viacom Radio, Inc., Michael Fashana and Cindy Johnson. According to his complaint, plaintiff was hired by CBS in June 2014 as a digital salesperson with a base yearly salary of $50, 000 plus commissions. Dkt. #1-2 (Compl.) at ¶ 3.1. He informed CBS, Fashana and Johnson that he suffered from depression. Id. at ¶ 3.6. Beginning in August 2014, he asked for the opportunity to sell to specific lucrative client accounts. These requests were denied, and plaintiff was told that he had to “prove himself.” Id. at ¶¶ 3.10-3.12. Between 2014 and 2015, Fashana hired two new individuals for the same position. Both were Caucasian and had no disabilities. One was female. Id. at ¶¶ 3.18-3.20. Between January and March 2015, plaintiff took time off due to his medical condition of depression. Id. at ¶ 3.15. He alleges that defendants did not inform him of whether he qualified for protected leave under the federal Family Medical Leave Act (“FMLA”) or Washington's Family Leave Act (“FLA”). Id. at ¶ 3.17. In spring 2015, one of the new hires was given the lucrative client accounts that plaintiff had requested without being told that she had to “prove herself.” Id. at ¶ 3.20. He complained in writing to Fashana and Johnson on June 18, 2015, and they retaliated by taking away his base salary on June 22, 2015 and doubling his quarterly budget. Id. at ¶¶ 3.24-3.26.

         In November 2015, plaintiff took two weeks off due to his depression. Defendants again failed to inform him of his eligibility for protected leave. Id. at ¶¶ 3.27-3.28. When he returned, they placed him on probationary status and set unrealistic budgets that did not take his protected leave into consideration. Id. at ¶¶ 3.31-3.32. Plaintiff took additional intermittent time off between December 2015 and March 2016. Id. at ¶ 3.33. Defendants continued to demand the same budgets. Id. at ¶ 3.34. In March 2016, plaintiff resigned. Id. at ¶ 3.35.

         Plaintiff brought claims for violation of Washington's law against discrimination, see RCW 49.60.010 et seq, violations of the FMLA and FLA, wrongful termination in violation of public policy, failure to accommodate, intentional infliction of emotional distress and negligent infliction of emotional distress. Id. at ¶¶ 4.1.1-4.6.1. Defendants removed the case to this Court on March 29, 2018. Dkt. #1; see 28 U.S.C. § 1331.

         Plaintiff filed a motion to amend his complaint on January 18, 2019. Dkt. #24. This proposes striking two causes of action; i.e., intentional infliction of emotional distress and negligent infliction of emotional distress and adding one new cause of action of racial discrimination pursuant to 42 U.S.C. § 1981(a). Dkt. #24-1 at ¶ 4.5. It also adds the contention that defendants' failure to accommodate under Washington state law includes their failure to engage in the interactive process. Id. at ¶ 4.4.1.

         DISCUSSION

         A. Legal Standard

         Other than an amendment as a matter of course, “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). Rule 15 “sets forth a very liberal amendment policy.” Rain Gutter Pros, LLC v. MGP Mfg., LLC, No. C14-0458 RSM, 2015 WL 6030678, at *1 (W.D. Wash. Oct. 15, 2015) (citing Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)). “Five factors are used to assess the propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the party has previously amended its pleading.” LifeLast, Inc. v. Charter Oak Fire Ins. Co., No. C14-1031JLR, 2015 WL 12910683, at *2 (W.D. Wash. July 6, 2015) (citing Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990)).

         Delay, by itself, is not sufficient to justify denial of leave to amend. Paz v. City of Aberdeen, No. C13-5104 RJB, 2013 WL 6163016, at *3 (W.D. Wash. Nov. 25, 2013) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1986)). However, the remaining factors “could each, independently, support a denial of leave to amend a pleading.” Id. (citing Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999)). “Of these factors, prejudice to the opposing party is the most important factor.” Id. (citing Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)). “The burden is on the party opposing amendment to show that they will be prejudiced by the court granting leave to amend.” LifeLast, Inc., 2015 WL 12910683 at *2 (citing DCD Programs, Ltd., 833 F.2d at 187).

         “Relevant to evaluating the delay issue is whether the moving party knew or should have known the facts and theories raised by the amendment.” Id. at *4 (citing Jackson, 902 F.2d at 1388). “A party that contends it learned ‘new' facts to support a claim should not assert a claim that it could have pleaded in previous pleadings.” Id. (citing Chodos v. West Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002)). Bad faith exists where “the plaintiff merely is seeking to prolong the litigation by adding new but baseless legal theories.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 881 (9th Cir. 1999) (citing Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998)). “Leave to amend need not be given if a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Pan- Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 546 (5th Cir. 1980), cert. denied, 454 U.S. 927 (1981)).

         B. Intentional and Negligent Infliction of Emotional Distress

          Defendants do not object to the dismissal of plaintiff's claims for intentional and negligent infliction of emotional distress, “other than on the grounds that a [m]otion to [a]mend is not the proper procedural mechanism for doing so.” Dkt. #26 at 1. The Court strikes plaintiff's ...


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