Free Reply to Response to Motion - District Court of Arizona - Arizona

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Rosval A. Patterson, SBN 018872 Patterson & Associates, P.L.L.C. 777 East Thomas Road, Suite 210 Phoenix, Arizona 85014 Tel.: (602) 462-1004 E-mail: [email protected] Attorney for the Plaintiff, Alexander Jung
UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA
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Alexander Jung, Plaintiff, vs. John E. Potter, Postmaster General , Defendant.

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Case No.: CIV 04-429 PHX MHM

REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

Plaintiff replies to Defendant's Response to Plaintiff's Requests Leave of Court to File an Amended Complaint to add the claims of Retaliation and FMLA

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violations and remove the claims of sex discrimination and national origin
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discrimination. This motion is supported by the Memorandum of Points and Authorities which is attached hereto and incorporated herein by this reference. ..... .....

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DATED this 28th day of February, 2006 By s/Rosval A. Patterson Rosval A. Patterson Patterson & Associates 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES

I.
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ARGUMENT

1. Timeliness of Motion Good cause for granting leave to amend exists because the additional actions in dispute did not come to Plaintiffs' attention until after the complaint had been filed and after the deadline for amending pleadings. Plaintiff's Family Medical Leave Act (FMLA) was denied October 20, 2000; May 17 and May 18, 2001; September 20, 2001; December 20, 21, 27, 28 2001; January 10, 2002,

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February 25, 2002. On March 2, 2002 Plaintiff received a letter stating that he does not have enough work hours in the last year to qualify for FMLA. (See attached Exhibit #1.) On March 5, 2002, Defendants ordered Plaintiff out of the PMPPC facility. Since that date Plaintiff has never been allowed back into the building. Unlike other postal employees who could access human resources to

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inquire into their FMLA status Plaintiff could not. On October 8, 2002 in
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responding to the EEO investigator Plaintiff's Attorney did write ... "the Postal Service denied Mr. Jung his right to Family Medical Leave Act (FMLA)". Hoping that the EEO would investigate Defendants March 2, 2002 letter to see if it was accurate. In Defendants response to the EEO they did not disclose the facts giving rise to the new claims in the context of this litigation. The Defendant

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attached the Employee Everything Report, via Humberto Trujillo's affidavit, to show that the plaintiff had been absent without leave (AWOL). The Defendant

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did not respond to the EEO regarding the FMLA. Plaintiff's first opportunity to discuss FMLA leave with a postal employee with knowledge of FMLA procedures was on July 29, 2005 in Mr. Trujillo's deposition. Without Mr.

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Trujillo's testimony, Plaintiff had no way of knowing that the letter sent on March 2, 2002 was false. The slight delay in gaining actual knowledge of the FMLA violation, discovering and filing the motion to amend is based on the new information and is not unreasonable given Plaintiffs' Rule 11 obligations, especially in light of Plaintiffs' assertion that their failure to move in a timely fashion was a direct result

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of Defendants' failure to properly to disclose the relevant information to the EEO investigator. It was not for lack of care that Plaintiff filed the motion to amend at such an advanced date. Therefore, there is "good cause" for granting leave to amend. 2. Diligent, Undue Delay, and Futility

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Defendants contend that Plaintiff has not been diligent and that Plaintiff's FMLA
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claim is frivolous. In support of their position, Defendants point the Court to Johnson v. Mammoth Recreations, 975 F.2d 604, 609 (9th Cir. 1992), where the court found that because Plaintiffs were aware of the proper Defendant before the deadline, they could not establish the required diligence. In Mammoth Recreations, Plaintiff was warned on several occasions as who the proper

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defendant was before the deadline. Mammoth Recreations's informed the Plaintiff in their answer to the complaint. Furthermore, their response to interrogatories

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amply indicated that Mammoth Recreations did not own and operate the ski resort, and thus that any theory of liability predicated upon that fact would fail. Moreover, the district court found that Mammoth Recreation's counsel had sent a

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letter explicitly offering to stipulate to a substitution of the "proper defendant," Mammoth Mountain Ski Area, Inc. The court held that "failing to heed clear and repeated signals that not all the necessary parties had been named in the complaint does not constitute diligence". Mammoth Recreations can be distinguished from the instant case. Plaintiff has not received any documents from the defendants regarding FMLA even after

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being requested. On October 12, 2004 Plaintiff served the following request for production on Defendant: REQUEST FOR DOCUMENTS NO. 11: All documents relating to compensation paid to plaintiff for services rendered to Defendants.

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REQUEST FOR DOCUMENTS NO. 13: All records of wages paid during plaintiff's employment, including copies of all checks issued payable to plaintiff. REQUEST FOR DOCUMENTS NO. 14: All records of hours worked, including but not limited to hours worked for each work week of plaintiff's employment.

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REQUEST FOR DOCUMENTS NO. 15: All records reflecting in any way the times, dates, and/or hours of

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plaintiff's work activities. REQUEST FOR DOCUMENTS NO. 16: All records of vacation accrued, used and paid relating to plaintiff.

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Each request was made as an attempt to discover whether or not Plaintiff's FMLA rights had been violated. Defendant objected to the above responses. On February 11, 2005, Plaintiff wrote a letter to Defendants explaining how the information was producible and requested that they be produced. In a letter dated March 8, 2005, Defendant again refused to produce the information. On June 13, 2005, Plaintiff requested times and date for Mr. Trujillo's depositions. Defendants

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set the deposition for July 29, 2006. Therefore, it was not until Mr. Trujillo's deposition on July 29, 2005, that Plaintiff could have possible discovered that his FMLA rights had been violated. Consequently, Defendants allegations that Plaintiff was not diligent in finding out about his claim are false. A similar analysis applies to Defendants' arguments regarding delay.

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During the six month period between Mr. Trujillo's deposition and filing of the
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amended complaint, the parties have requested two extensions to the discovery deadline for settlement discussion and have had a settlement conference. After settlement had completely broke down in January of 2006 Plaintiff filed his amended complaint. Additionally, the parties have stipulated to a request to the court for an extension of the discovery process after summary judgment motions

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are filed. Finally, if the Court were to deny Plaintiffs motion to amend, Plaintiff could file a separate complaint containing the allegations which they wish to

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include here, thus requiring defendants to go through a new round of discovery anyway. The delay in asserting most of Plaintiffs' new claims is not unreasonable or unfair.

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Defendants also contend that granting leave to amend is futile because: Plaintiff is required to have 1250 hours from the past year to request FMLA leave. Defendants allege Plaintiff only had 1170.89 hours during the previous year. As a preliminary matter, a complaint should be dismissed for failure to state a claim only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355

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U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The amended complaint should be construed in the light most favorable to the plaintiff, its allegations of material fact are taken as true, and all reasonable inferences are drawn in favor the plaintiff. See Oscar v. Univ. Students Co-Operative Ass'n, 965 F.2d 783, 785 (9th Cir. 1992); accord Knievel v. ESPN, 393 F.3d 1068, 1080 (9th Cir. 2005).

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Furthermore, Defendants won't be able to make that argument in light of the fact
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that they have failed to produce any FMLA documents or policies that support their defense.

II.

CONCLUSION The court must grant the Plaintiff's requests for leave of Court to file an

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amended complaint to add a claim of FMLA and Retaliation.
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DATED this 28th day of February, 2006 Patterson & Associates, P.L.L.C.

s/Rosval A. Patterson Rosval A. Patterson 777 E. Thomas Rd. #210 Phoenix, AZ 85014 Attorney for the Plaintiff

CERTIFICATE OF SERVICE I hereby certify that on the 7th day of February, 2006, I electronically transmitted that attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing for the following CM/ECF registrants: Suzanne M Chynoweth at [email protected] A copy of this document was provided by U.S. mail to: The Honorable Judge Mary H. Murguia United States District Court 401 West Washington Courtroom 525 Phoenix, AZ 85003

By
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s/Stephanie Coulter

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