United States District Court, W.D. Washington, Seattle
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
S. Lasnik United States District Judge
matter comes before the Court on plaintiff's motion for
leave to amend complaint. Dkt. #24.
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.
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.
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.
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.
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)).
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).
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)).
Intentional and Negligent Infliction of Emotional
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