United States District Court, W.D. Washington, Tacoma
KENT J. PRESTON, Plaintiff,
WIRELESS COMMUNICATIONS INC., d/b/a Cellular Plus, a Montana corporation, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR LEAVE TO
AMEND ANSWER AND DEFENSES TO ASSERT COUNTERCLAIMS
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Wireless
Communications, Inc., d/b/a Cellular Plus (“Cellular
Plus”), Dustin Millican (“Millican”),
Aaron Martinson (“Martinson”), Matt Schwartz
(“Schwartz”), and David Chandler's
“Defendants”) motion for leave to amend answer
and defenses to assert counterclaims. Dkt. 14. The Court has
considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants the motion for the reasons stated herein.
PROCEDURAL AND FACTUAL HISTORY
Kent J. Preston (“Preston”) is an Army Specialist
in the Oregon Army National Guard. Dkt. 1, § 1.1.
Preston alleges that during his employment with Cellular
Plus, he was discriminated against based on his military
service. Preston's claims are for discrimination, failure
to reemploy, unlawful retaliation, and unlawful discharge in
violation of the Uniformed Services Employment and
Reemployment Right Act, 38 U.S.C. §§ 4301-4335, and
for unlawful discrimination in violation of the Washington
Law Against Discrimination, RCW Chapter 49.60. Id.
to the instant motion, Preston alleges he recorded three
interactions with Defendants with permission. On August 23,
2018 Preston recorded a conversation with Millican, the
Cellular Plus store manager. Id., §§
2.10-2.11. On August 24, 2018, Preston recorded a
conversation with Martinson, the Regional Manager.
Id. § 2.21. On August 27, 2018, Preston
recorded a meeting with Schwartz, the Cellular Plus Regional
Trainer, and Chandler, Cellular Plus's corporate Human
Resources Director. Id. §§ 2.29-2.30.
filed his complaint on February 12, 2019. Dkt. 1. On March
13, 2019, Defendants answered. Dkt. 6. On March 21, 2019,
Preston moved to strike affirmative defenses from
Defendants' answer. Dkt. 9. On March 27, 2019, Defendants
filed an amended answer, Dkt. 10, and Preston withdrew his
motion, Dkt. 11.
August 15, 2019, Defendants filed the instant motion for
leave to amend answer to assert counterclaims. Dkt. 15. On
September 3, 2019, Preston responded. Dkt. 16. On September
5, 2019, Defendants replied. Dkt. 20.
DISCUSSION A. Rule 16
“[W]hen a party seeks to amend a pleading after the
pretrial scheduling order's deadline for amending the
pleadings has expired, the moving party must satisfy the
‘good cause' standard of Federal Rule of Civil
Procedure 16(b)(4), which provides that ‘[a] schedule
may be modified only for good cause and with the judge's
consent,' rather than the liberal standard of Federal
Rule of Civil Procedure 15(a).” In re W. States
Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737
(9th Cir. 2013). This good cause standard “primarily
considers the diligence of the party seeking the
amendment.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 609 (9th Cir. 1992).
pretrial scheduling order set the deadline for amended
pleadings as July 15, 2019. Dkt. 13. Defendants filed their
motion to amend on August 15, 2019. Dkt. 14. Defendants seek
to amend their answer to assert counterclaims under the right
of privacy, RCW Chapter 9.73. Dkt. 14. Discovery is scheduled
to close on May 11, 2020. Dkt. 13.
argue that Preston produced evidence in discovery of
conversations he recorded which led them to conclude Preston
made at least two recordings in violation of Washington law.
Dkt. 14 at 2. Defendants' proposed second amended answer
alleges Preston unlawfully recorded an August 23, 2018
conversation with Millican (first counterclaim) and an August
29, 2018 conversation with Schwartz and Chandler (second
counterclaim). Dkt. 14 at 23-24.
the first counterclaim, Preston argues Defendants became
aware of the recording when Preston emailed that recording to
Chandler at Chandler's request on August 27, 2018. Dkt.
16 at 7. Preston provides a declaration and copy of the email
showing he stated at the time that the recording was with
permission. Dkt. 16 at 7 (citing Dkt. 18 & Ex. B).
Regarding the second counterclaim, Preston argues that
because Defendants' first answer admitted Preston had
permission to record the conversation, Defendants cannot now
argue they were unaware of the recording. Id.
argue they first received the recordings in discovery in
response to their June 14, 2019 request for production. Dkt.
14 at 2. Defendants explain that they sought to “obtain
the recordings first to confirm their recollections of these
recordings to avoid” alleging counterclaims
based on mistaken recollections. Dkt. 20 at 2 (emphasis in
Defendant's motion comes after the deadline for amended
pleadings, the Court finds that seeking to amend a pleading:
(1) two months after early discovery confirms a basis to
assert a counterclaim, and (2) one month after the deadline