Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona SUZANNE M. CHYNOWETH Assistant U.S. Attorney Arizona Bar Number 6835 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 Facsimile: (602) 514-7760 email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Alexander Jung, Plaintiff, v. John Potter, Postmaster General, U.S. Postal Service Defendant. Defendant John E. Potter, Postmaster General, hereby responds to plaintiff's motion to CIV-04-0429-PHX-MHM DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO AMEND COMPLAINT

16 file an amended complaint and requests that the Court deny this motion. The deadline for filing 17 a motion to amend was October 7, 2004. Under Fed. R Civ. P. 16(b) and as set forth in the 18 following Memorandum of Points and Authorities, good cause does not warrant extending that 19 scheduling order deadline to allow plaintiff to file an amended complaint concerning issues that 20 plaintiff has known about for years. 21 22 MEMORANDUM OF POINTS AND AUTHORITIES 23 I. INTRODUCTION: Plaintiff seeks to amend the complaint he filed in the above action on March 8, 2004, 24
1/ [Complaint, 25 which alleges discrimination on the basis of disability, national origin, and sex. 26 ¶¶ 39, 46, 49, 52.] Plaintiff claims an amendment is appropriate because he did not know that

27 he was improperly denied FMLA leave on numerous occasions between October 2, 2000 and 28 It should be noted that plaintiff never identified his disability in his complaint other than stating that his "left knee patello-femoral was aggravated by work as a distribution clerk." [Complaint, ¶ 31.]
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1 July 1, 2002, until Mr. Trujillo was deposed in August, 2005, nearly seven months ago. Plaintiff 2 then proceeds to analyze his request under Fed. R. Civ. P. 15(a). Plaintiff's motion should be 3 denied because he has not shown good cause under Fed. R. Civ. P. 16(b) and in fact has not been 4 diligent in obtaining the necessary information as evidenced by the following: 5 · his motion to amend was filed sixteen (16) months after the deadline in the Court's

6 scheduling order; 7 · his motion to amend was filed nearly five and one-half (5 ½) years after the first alleged

8 FMLA violation; 9 · his motion to amend was filed nearly three and one-half (3 ½) years after the last

10 alleged FMLA violation; 11 · his motion to amend was filed nearly three and one-half (3 ½) years after his attorney

12 sent a letter to the EEO Dispute Resolution Office stating that "the Postal Service denied Mr. 13 Jung his right to Family Medical Leave Act (FMLA)." [See Ex. 1 (October 8, 2002 letter from 14 Mr. Patterson).] Furthermore, plaintiff is wrong about the basis under which he seeks to amend 15 his complaint ­ that he had sufficient FMLA hours to qualify for FMLA leave. Plaintiff's 16 motion to amend should accordingly be denied. 17 II. FACTS: 18 In plaintiff's original complaint, he alleges that in October 2001, he was placed on a

19 permanent restriction that required him to sit on a soft cushion chair for fifteen to thirty minutes 20 after standing for one hour so that he could perform his duties. [Complaint, ¶¶ 17-18.] Plaintiff 21 claims that the manager of the facility in which plaintiff worked "refused to accommodate [him] 22 and started sending [him] home." [Complaint, ¶ 19.] Plaintiff further claims that on March 5, 23 2002, his work hours were changed to a different shift, with different days off, and "only four 24 hours and NO GUARANTEE OF HOURS." [Complaint, ¶ 20.] Plaintiff would not sign the 25 documents reflecting the change in his hours "that he had bid for indefinitely," and he was 26 ordered out of the facility in which he had been working. [Complaint, ¶¶ 21-24.] Plaintiff 27 28 2
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1 claims that non-Asians and females were treated differently than him, and that he was not 2 provided with reasonable accommodations. [Complaint, ¶¶ 25-28, 34-38.] 2/ 3 On September 22, 2004, the Court filed a Rule 16 Scheduling Order which included a

4 deadline of October 7, 2004 for plaintiff to file a motion to amend his complaint. This deadline 5 was the same deadline that the parties proposed in their Case Management Plan (filed August 6 30, 2004) and accepted by the Court in its Rule 16 Scheduling Conference (held September 8, 7 2004). The Scheduling Order has been modified for good cause on several occasions to extend 8 deadlines to complete discovery and file dispositive motions, but never for filing a motion to 9 amend. [See Court's orders dated April 26, 2005, August 25, 2005, November 29, 2005.] Now, 10 sixteen months after the scheduling order deadline, plaintiff seeks to amend his complaint, 11 improperly citing to Fed. R. Civ. P. 15(a), to add claims of retaliation and FMLA violations, 12 drop claims of discrimination on the basis of sex and national origin, and to allege specific facts 13 well beyond the scope of those alleged in original complaint. Plaintiff was not diligent in 14 figuring out whether he had an FMLA claim and there is no good cause to justify this delay as 15 required by Fed. R. Civ. P. 16(b). His motion to file an amended complaint (the Motion) should 16 therefore be denied. 17 III. ANALYSIS: 18 Plaintiff seeks to amend his complaint under the liberal guidelines of

19 Fed. R. Civ. P. 15(a). [Motion, p.4.] However, the Ninth Circuit has articulated that once a 20 scheduling order has been entered, the good cause standard under Fed. R. Civ. P. 16(b) controls 21 whether a party should be allowed to amend his complaint, not that under Fed. R. Civ. P. 15(a). 22 In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1991), the Ninth Circuit 23 considered, "when and under what circumstances may a party join an additional defendant once 24 the district court has entered an order limiting the time for joinder." Id. at 607. Plaintiff Johnson 25 relied upon Fed. R. Civ. P. 15(a), and its generous policy favoring amendments to support his 26 request. However, the Ninth Circuit agreed with the district court, that once a scheduling order 27 28 Of note, the facts plaintiff set forth for his portions of the August 30, 2004 Case Management Plan mirror those in his original complaint. 3
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1 has been entered, the good cause requirement under Fed. R. Civ. P. 16(b) governs whether a 2 plaintiff may amend his complaint." Id. at 608: 3 4 5 6 7 8 9 10 A court's evaluation of good cause is not coextensive with an inquiry into the propriety of the amendment under ... Rule 15. Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)' s "good cause" standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. If that party was not diligent, the inquiry should end.

11 Johnson, 975 F.2d at 609 (internal citations omitted) (Emphasis added.); see also Wright, Miller 12 & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990) ("good cause" means 13 scheduling deadlines cannot be met despite party's diligence). 14 Here plaintiff Jung claims that he could not have known how to read the "Employee

15 Everything Report" (the Report) dated March 14, 2003 that was part of the EEO investigation 16 until Mr. Trujillo was deposed last summer. Plaintiff claims that seven months after Mr. 17 Trujillo's deposition he should now be allowed to include retaliation claims for alleged FMLA 18 violation dating back some five and one-half years. Plaintiff claims that, per the Report, he had 19 sufficient FMLA hours as of May 22, 2002 when he requested FMLA leave. This purported 20 justification fails to establish good cause and highlights plaintiff's lack of diligence. 21 Furthermore, plaintiff has misread the report and misinterpreted Mr. Trujillo's testimony. An 22 employee is required to have 1250 hours from the past year to request FMLA leave. [See the 23 Motion, Ex. 1 (PS Form 397)1.] Plaintiff only had 1170.89 hours during the previous year. 24 Since plaintiff was not working after March 5, 2002, it could not be projected when he would 25 have enough hours for FMLA leave. 26 More significant to this motion is the fact that plaintiff's previous FMLA requests were

27 denied for various reasons, and had nothing to do with the Report. Plaintiff was well aware of 28 this. For example, on February 4, 2002, Plaintiff received a notice of suspension which included 4
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1 issues about his not providing documents to justify FMLA leave requests. [See Ex. 2 (February 2 4, 2002 Notice of Suspension).] Plaintiff knew that his FMLA leave was denied for his not 3 having proper documentation. Plaintiff's failure to pursue issues concerning the alleged FMLA 4 violations that he has long known about have nothing to do with his ability to understand the 5 Report. Even if it did, plaintiff could and should have conducted appropriate discovery or made 6 appropriate inquiries to ensure he had information concerning these issues to file a timely motion 7 to amend. Plaintiff has not been diligent regarding the issues raised in his proposed amend 8 complaint. Under the analysis in Johnson and Fed. R. Civ. P. 16(b), the inquiry should end there 9 and his request to file an untimely amended complaint should be denied. 10 IV. CONCLUSION 11 Based upon the foregoing it is requested that the Court deny plaintiff's motion to amend

12 as being untimely and without good cause. 13 14 15 16 s/Suszanne M. Chynoweth 17 18 19 20 21 22 23 24 25 26 27 28 5
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Respectfully submitted this 21ST day of February 2006. PAUL K. CHARLTON United States Attorney District of Arizona

SUZANNE M. CHYNOWETH Assistant U.S. Attorney

1 CERTIFICATE OF SERVICE 2 I hereby certify that on February 21, 2006, I electronically transmitted the attached 3 document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice 4 of Electronic Filing to the following CM/ECF registrants: 5 A. Patterson 6 Rosval Thomas Rd. 777 E. 7 Phoenix, AZ 85014 8 9 s/Jennifer Maughan ________________________________ 10 Office of the U.S. Attorney 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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