Opinion
No. CIV S-09-3606 KJM-KJN
10-09-2012
HELEN WHELAN, Plaintiff, v. JOHN E. POTTER, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendants.
ORDER
This matter is before the court on the motion by plaintiff Helen Whelan for leave to amend the complaint to add a claim for hostile environment sexual harassment. (Mot.to Amend, ECF 93.) Plaintiff maintains amendment is appropriate because plaintiff's counsel learned at the hearing on defendant's motion for summary judgment that the operative complaint did not contain a claim for hostile environment sexual harassment. (Id.) Defendant John E. Potter, Postmaster General, United States Postal Service ("defendant"), opposes the motion on the grounds of undue delay, bad faith, futility, and prejudice to defendant. (Def.'s Opp'n to Mot. to Amend, ECF 98.)
Federal Rule of Civil Procedure 15(a)(2) states "[t]he court should freely give leave [to amend its pleading] when justice so requires" and the Ninth Circuit has "stressed Rule 15's policy of favoring amendments." Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). "In exercising its discretion [regarding granting or denying leave to amend], 'a court must be guided by the underlying purpose of Rule 15 — to facilitate decision on the merits rather than on the pleadings or technicalities.'" DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). However, "the liberality in granting leave to amend is subject to several limitations. Leave need not be granted where the amendment of the complaint would cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay." Ascon Properties, 866 F.2d at 1160 (internal citations omitted).
Plaintiff's request to amend the complaint to add a claim for hostile environment at this late stage of the litigation is improper. Discovery has closed and the court has issued an order on defendant's motion for summary judgment. See Roberts v. Ariz. Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981) (affirming district court denial of motion to amend raised after discovery was "virtually complete" and the defendant's motion for summary judgment was pending before the court"). The final pretrial conference is currently set for November 1, 2012, and the jury trial set for December 10, 2012, less than two months from now. (See ECF 96.)
For the foregoing reasons, plaintiff's motion for leave to amend the complaint is DENIED.
IT IS SO ORDERED.
______________________________
UNITED STATES DISTRICT JUDGE