Makaneole v. Solarworld Industries America, Inc. et al

Reply to Second Motion for Leave to File Amended Complaint/Petition 230 Oral Argument requested.

D. Or.February 21, 2019

Page 1 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 David A. Schuck, OSB 993564, WSB 37285 E-Mail: dschuck@wageclaim.org Stephanie J. Brown, OSB 030019, WSB 42030 E-Mail: sbrown@wageclaim.org Karen A. Moore, OSB 040922, WSB 42476 E-Mail: kmoore@wageclaim.org SCHUCK LAW, LLC Attorneys at Law 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MICHAEL MAKANEOLE, individually and on behalf of all similarly situated, Plaintiff, v. SOLARWORLD INDUSTRIES AMERICA, INC.; SOLARWORLD INDUSTRIES AMERICA, LP; SOLARWORLD INDUSTRIES SERVICES, LLC; SOLARWORLD POWER PROJECTS, INC., RANDSTAD PROFESSIONALS US, LP, AND KELLY SERVICES, INC., Defendants. Case No. 3:14-CV-01528-JR REPLY TO PLAINTIFF’S MOTION TO AMEND AMENDED COMPLAINT Pursuant to Fed. R. Civ. P. 15 Request for Oral Argument Oral Argument Requested Introduction Makaneole pursued his amendment in good faith and without undue delay upon learning of Sunpowers acquisition of Solarworld. The proposed amendments are not futile because the Oregon Supreme Court in Taylor v. Werner Enterprises, Inc. concluded that the definition of “employer” in ORS 652.310(1) applies to ORS 652.150. 329 Or 461, 467 (1999). Solarworld is not substantially prejudiced because the amendment does not make the case more complex. Makaneole’s motion to amend should be granted. Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 1 of 12 Page 2 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 Argument Rule 15(a)(2) provides that “[t]he court should freely give leave when justice so requires.” It is designed “to facilitate decision on the merits, rather than on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981); see also Martinez v. Newport Beach City, 125 F.3d 777, 785 (9th Cir. 1997) (federal policy favors freely allowing amendments to allow decisions on the merits). The Ninth Circuit strongly favors allowing amendment. In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013). While leave to amend is not to be granted automatically, “the rule should be interpreted with ‘extreme liberality.’” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990), citing United States v. Webb, 655 F.2d 977, 979 (9th Cir.1981). “Rule 15 reflects the liberal policy of favoring amendments of pleadings at any time.” Galindo v. Stoody Co., 793 F.2d 1502, 1512 (9th Cir.1986). “In determining whether amendments are appropriate, courts commonly consider four factors: 1) bad faith of the moving party, 2) delay in the proceedings, 3) prejudice to the nonmoving party, and 4) futility of amendment.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). “Generally, this determination should be performed with all inferences in favor of granting the motion.” Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999). For each of the factors, the party opposing amendment has the burden of showing that amendment is not warranted. DCD Programs, Ltd., 833 F.2d at 187. Solarworld failed to meet its burden to show the amendment is futile because the Oregon Supreme Court in Taylor concluded that the definition of “employer” in ORS 652.310(1) applies to ORS 652.150, and further failed to meet its burden to show substantial prejudice. 1. Futility A proposed amendment is futile “if no set of facts can be proved under the amendment Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 2 of 12 Page 3 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 to the pleadings that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). A court should permit a party to amend its complaint and given the opportunity to test his claim on the merits rather than deny leave to amend on futility grounds, if it is not clear beyond a reasonable doubt that amendment of the complaint would be futile. Roth v. Garcia Marquez, 942 F.2d 617, 629 (9th Cir. 1991). Solarworld fails to meet its burden to show the amendments to the complaint would be futile. a. The Oregon Supreme Court in Taylor concluded the definition of “employer” in ORS 652.310 applies to Makaneole’s wage claims Makaneole’s proposed amendment seeks to add Sunpower as a defendant, and allow Makaneole to litigate whether Sunpower is a successor employer using the test set out in Blachana LLC v. BOLI, 354 Or 676 (2014) and liable to Makaneole and class members for failing to timely pay all wages at the end of employment under ORS 652.140 and ORS 652.150. Solarworld fails to show Makaneole’s claims for wages against Sunpower as a successor employer are futile because (1) Makaneole brings his claim under ORS 652.140 and ORS 652.150, expressly authorizing a private right of action and (2) the Oregon Supreme Court in Taylor concluded that the definition of “employer” in ORS 652.310(1) applies to ORS 652.150. The Supreme Court’s decision applying the definition of “employer” from ORS 652.310 to ORS 652.150 becomes “part of the statute as if it were written into the law at the time of its enactment.” Holcomb v. Sunderland, 321 Or 99, 105 (1995). “When interpreting state law, a federal court is bound by the decision of the highest state court.” In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990). Only in the absence of such a decision, should a federal court predict how the highest state court would decide the issue using appellate court decisions, decisions from other jurisdictions and statutes as guidance. Id. at 1239, citing Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 3 of 12 Page 4 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986), reh’g denied, op. modified, 810 F.2d 1517 (9th Cir.1987). This Court must follow the Oregon Supreme Court decision in Taylor. In Taylor, the plaintiff had an employment contract with a wholly-owned subsidiary of the defendant Werner. The plaintiff filed a lawsuit against defendant Wener alleging claims for unpaid wage (ORS 652.140 and ORS 652.150), along with unlawful deduction claims (ORS 652.610 and ORS 652.615). The Supreme Court found that “the critical and ultimately determinative issue is whether Werner was plaintiff’s employer under Oregon law.” Taylor, 329 Or at 467. The Court concluded the definition of “employer” in ORS 652.310(1) applied to wage claims in ORS chapter 652. Id. at 471. In determining whether Werner was the plaintiff’s employer under ORS 652.150 and ORS 652.610, the Court relied on the entirety of ORS Chapter 652, and applied the familiar rules of statutory construction outlined in PGE v. BOLI, 317 Or 606 (1993). Taylor, 329 Or at 467. The Court applied the definition of employer in ORS 652.310(1), which states: As used in ORS 652.310 to 652.414, unless the context requires otherwise: (1) ‘Employer’ means any person who in this state, directly or through an agent, engages personal services of one or more employees and includes any successor to the business of any employer .... The Court reasoned that: ORS 652.360, to which the definition of “employer” in ORS 652.310(1) applies explicitly, itself applies to ‘any statute relating to the payment of wages.’ The statutes on which plaintiff bases his claims, ORS 652.150 and ORS 652.610, prohibit, respectively, untimely payment of wages and certain withholdings of wages – subjects that directly relate to the ‘payment of wages.’ Thus, the definition of employer in ORS 652.310(1) also applies to ORS 652.150 and ORS 652.610, and controls our understanding of the scope of the term ‘employer’ and our analysis of [defendant’s] obligations. Id. (emphasis added). The Supreme Court applied the definition of employer in ORS 652.310(1) to ORS 652.140 as well. Id. at 471. The Oregon Supreme Court decision in Taylor is binding on this Court, and Makaneole’s wages claims against Sunpower as a Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 4 of 12 Page 5 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 successor employer are not futile. In re Kirkland, 915 F.2d at 1238. Further, a federal court is only obligated to follow decisions from the state’s intermediate courts, such as Stout v. Citicorp Ind. Credit, Inc., 102 Or App 637 (1990) and Pope v. Judical Dept., 79 Or App 732 (1986), “in the absence of convincing evidence that the highest court would decide differently.” In re Kirkland, 915 F.2d at 1239, citing American Triticale, Inc. v. Nytco Services, Inc., 664 F.2d 1136, 1143 (9th Cir.1981). Consequently, Solarworld’s reliance on Stout and Pope are erroneous because (1) to the extent that it could be interpreted in a way to avoid application of ORS 652.310 to wage claims under ORS 652.150, it would be overruled by Taylor, and (2) the plaintiff in Stout brought his wage claim under the statutes reserved to BOLI to enforce wage claims (ORS 652.310 to ORS 652.405), not under ORS 652.140 and 652.150, as Makaneole does here. The plaintiff in Stout argued he had a private right of action to collect unpaid wages under the Enforcement of Wage Claims section of ORS Chapter 652, which “relate primarily to the authority of BOLI to enforce wage claims that have been assigned to it.” Id. The critical flaw in plaintiff Stout’s claims is that he did not bring a claim under ORS 652.140 or 652.150 as Makaneole does. By only bringing claims under the statutes for BOLI enforcement, the Court held that it could not maintain a private right of action under those statutes. Conversely, claims under ORS 652.140, 652.150, and ORS 652.200 expressly authorize a private right of action by “augment[ing] an employee’s common law right to maintain an action against an employer for unpaid wages,” penalty wages and attorney fees and costs. Id. at 640. Stout is not fatal to Makaneole’s amendment because his claims in this case are under the section allowing for a private right of action. b. The context and policy of wage statutes support Taylor ruling The context of ORS Chapter 652 supports applying the definition of “employer” in ORS 652.310 to claims under ORS 652.140 and ORS 652.150. The Oregon legislature titled Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 5 of 12 Page 6 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 all of Chapter 652 as: “Hours; Wages; Wage Claims; Records.” The legislature did not include language limiting ORS 652.310 or ORS 652.320 to the Enforcement of Wage Claims section. “The legislature knows how to include qualifying language in a statute when it wants to do so. It did not do so here.” PGE, 317 Or at 614. Instead, the legislature used the definitions in ORS 652.310 and 652.320 broadly throughout ORS Chapter 652. Notably, the term “wage claim” defined in ORS 652.320(7) is used 78 times and the term “employer” defined in ORS 652.310 is used 286 times throughout the Chapter. The legislature defined “wage claims” in extremely broad terms to mean “an employee’s claim against an employer for compensation for the employee’s own personal services, and includes any wages, compensation, damages or civil penalties provided by law to employees in connection with a claim for unpaid wages.” ORS 652.320(7). This is consistent with Oregon Courts defining “wages” broadly to mean “all earned compensation contracted to be paid by the employer for the employe’s personal service regardless of the nature of such compensation.” State ex rel. Nilsen v. Or. State Motor Ass’n , 248 Or 133, 136 (1967). This broad definition includes vacation wages, commissions, severance pay, medical benefit deductions, pension benefits and fixed monthly payments that reimburse an employee for expenses. See Id.; Hekker v. Sabre Constr. Co., 265 Or 552 (1973); Wilson v. Smurfit Newsprint Corp., 197 Or App 648, 659 (2005); Wyatt v. Body Imaging, PC, 163 Or App 526 (1999); Olson v. Eclectic Institute, Inc., 201 Or App 155 (2005). This broad definition of wages materially advances the public policy and purpose of the wage statutes to protect employees. The central purpose of the wage statutes is “that of assuring that one who works in a master and servant relationship, usually with a disparity of economic power existing between himself and his superior, shall be assured of prompt payment for his labors when the relationship is terminated.” Lamy v. Jack Jarvis & Co., Inc., 281 Or 307, 313 (1978); see also Belknap v. U.S. Bank Nat’l Ass’n, 235 Or App 658, 671 (2010); Wyatt, 163 Or App at 535 (1999) (en banc). The policy of ORS 652.140 and ORS Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 6 of 12 Page 7 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 652.150 “is to aid an employe [sic] in the prompt collection of compensation due him, and to discourage an employer from using a position of economic superiority as a lever to dissuade an employee from promptly collecting his agreed compensation.” State ex rel Nilsen, 248 Or at 138. Reading the wage collection statutes with the same broad stroke, to include successor to the business as “employer,” as done by the Supreme Court in Taylor, is consistent with the context of ORS Chapter 652 and the public policy of the wages statutes to ensure that employees are timely paid for all wages at the end of employment. In the context of successor employer, BOLI explained that: the purpose of the application of the successor doctrine in the wage claim context is, foremost, protection of employees. The buyer and seller, lessor and lessee, etc., of a business can protect their respective interests when negotiating a sale agreement, lease, or other business arrangement, by an indemnification clause in the acquisition agreement or by a lower purchase price. The employees are not parties to these negotiations and are in the least advantageous position to protect themselves when a change occurs in the employer’s business. In the Matter of Gerald Brown, 14 BOLI 154, 167 (1995). BOLI went on to explain that “[i]n the balancing process attendant to the application of the successor doctrine, the legislative goal of protection of employees is subverted by leaving the employee without a remedy or with an incomplete remedy.” Id. (emphasis in original), referencing, EEOC v. MacMilan Boedel Containers, Inc., 503 F2d 1086, 1091 (6th Cir. 1974). Hence, applying the definition of “employer” from ORS 652.310 to the wage payment and collection statutes to hold a successor business just as liable as the employer who has failed to pay his employees’ wages is consistent with and furthers the purpose of the wage and hour statutes. The purpose of the statutes show an intention to remedy a “disparity of economic power” and an “inequity” that is frustrated by not allowing employees to bring a private right of action for wages against a successor employer. Solarworld should not be able to escape liability under the wage statutes because it had the superior economic position to leverage an acquisition that leaves Makaneole and 627 class members without a remedy for Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 7 of 12 Page 8 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 their earned and unpaid lost wages. c. Other Oregon Courts apply definitions in ORS 652.310 and 652.320 to wage collection statutes Applying the definitions in ORS 652.310 and 652.320 to the entirety of ORS Chapter 652 is not novel or prohibited as Solarworld argues. Other Oregon courts have repeatedly applied the definitions in ORS 652.310 and ORS 652.320 to private civil actions brought by employees under ORS Chapter 652. In North Marion School Dist #15 v. Acstar Ins. Co., the Oregon Supreme Court relied on the definition of “wage claim” in ORS 652.320(7) in determining whether the employer’s surety company was liable for penalty wages under ORS 652.150. 343 Or 305, 313 (2007). Relying on Taylor, supra, the Court held that a surety company did not fall into the definition of “employer” in ORS 652.310(1) for liability of penalty wages under ORS 652.150. Id. at 317. In Wyatt, the Court of Appeals held that a claim for penalty wages under ORS 652.150 was a “wage claim, ” applying the definition in ORS 652.320 and explaining that to hold otherwise: would create an irreconcilable tension with the statutes providing for enforcement of the wage laws. For the purpose of the enforcement of wage claims by the Commissioner of the Bureau of Labor and Industries (BOLI), a ‘wage claim’ is expressly defined to include any wages, compensation, damages or ‘civil penalties provided by law to employees in connection with a claim for unpaid wages.’ ORS 652.320(9). Thus, if BOLI took an assignment of plaintiff’s wage claim, it would encompass her claim for the penalty wage. Necessarily, the definition of ‘wage claim’ for the purpose of assignment to BOLI may encompass only those rights that an employee has to assign. The parties do not dispute that a private wage claim may be brought under ORS 652.140 et seq. for the collection of the penalty wage only, even if the earned wage itself has been paid. We see no reason why, in its attempt to ameliorate the disparate economic bargaining strengths of employers and employees, the legislature would limit the availability of attorney fees to cases where the earned wage remains unpaid at the commencement of the action, thereby diminishing the disincentive to delay the payment of wages. 163 Or App at 534-535 (emphasis added). The Court recognized that BOLI’s enforcement of the wage claims is not isolated from an employee’s right of private action, and to hold otherwise “would create an irreconcilable tension.” Furthermore, BOLI can only enforce the Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 8 of 12 Page 9 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 claims that an employee could also bring on their own, equalizing the employee’s rights against economically stronger employers in all forums. Id. In Schedler v. Fieldturf USA, Inc., case no. 3:16-CV-0344-PK (D.Or. Aug 9, 2017), the Honorable Michael Simon considered whether Oregon or Washington law applied to the plaintiff’s claims for unpaid wages and penalty wages under ORS 652.140 and 652.150. Judge Simon, agreeing with the opinion of Magistrate Judge Paul Papak, found that Oregon law applied. In so doing, the Court explained that “Oregon has substantial policies relevant to the pending dispute. Oregon has expressed in its wage-and-hour laws a strong public policy interest in the full and timely payment of employee wages generally and upon termination.” Relying on the definition of employee in ORS 652.310(2), the Court stated that “[t]he fact that Oregon broadly defines an ‘employee’ under its wage-and-hour statute demonstrates the state’s strong interest that its wage-and-hour laws apply to persons such as Plaintiff.” For purposes of the plaintiff’s claims for unpaid wages and penalty wages in ORS chapter 652, the Court held that Oregon law applies by concluding that “plaintiff qualifies as an Oregon ‘employee’ under ORS § 652.310(2), Oregon has substantial policies embedded in its laws on the disputed issues of this case, and those policies are strong and directly related to this case.” Similarly, in Castro-Vega v. Waible, case no. 07-CV-675-ST, 2007 U.S. Dist. LEXIS 96350, at *2 (D. Or. Nov. 7, 2007), the court cited Taylor and applied the definition of “employer” from ORS 652.310 to the minimum wage statute. Because the Oregon Supreme Court applies the definitions in ORS 652.310 and ORS 652.320 to wage claims brought in this case, Solarworld fails their burden to prove that amendment will be futile. d. Blachana applies to make Sunpower a successor employer Solarworld’s arguments regarding Blachana, LLC v. BOLI, supra, rely on the incorrect assumption that ORS 652.310(1) does not apply to Makeneole’s wage claims. Solarworld is only able to reach this faulty conclusion by ignoring the Oregon Supreme Court’s decision holding that the ORS 652.310 definition of “employer” applies to Makaneole’s wage claims. Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 9 of 12 Page 10 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 Taylor, supra. Once the ORS 652.310 definitions apply, there are two ways Sunpower may be held liable for the wages, penalties, and attorney fees of the class. Blachana sets forth the test to determine “successor employer” under the ORS 652.310’s definition of “employer.” First, as a “successor to the business,” and second as “any lessee or purchaser of an employer’s business property for the continuance of the same business.” Blachana, 354 Or at 692; ORS 652.310(1). To recover from Sunpower, Makaneole must allege and prove one of these two definitions apply to Sunpower. Makaneole’s amendment alleges that Sunpower fits both definitions. Makaneole alleges that Sunpower is a “successor to the business” and that it “continues a solar panel business at the same Hillsboro, Oregon Location,” employs “essentially the same workforce,” and conducts essentially the same business as Solarworld. Doc 231-1 ¶¶ 19-26. Makaneole also seeks these amendments to prove that Sunpower purchased the assets of Solarworld. Doc 232 p. 2-3. Thus, even if the jury were to find that Sunpower is not a “successor to the business,” it could still find that Sunpower was a “purchaser of an employer’s business property for the continuance of the same business.” ORS 652.310. In fact, Solarworld never argues that Sunpower does not fit within the statutory definition of ORS 652.310. Certainly, Makaneole has alleged sufficient facts to allow the issue to be determined on the merits. Amendment should be allowed because the test used in Blachana and the definition of “employer” in ORS 652.310 apply to Makaneole’s wage claims. 2. Prejudice The party opposing the motion to amend must make a showing that it would suffer substantial prejudice. Howey v. United States, 481 F.2d 1187, 1190-91 (9th Cir. 1973). “Prejudice, in the context of a motion to amend, means undue difficulty in prosecuting a lawsuit as a result of a change of tactics or theories on the part of the other party.” Wizards of the Coast LLC v. Cryptozoic Entm't LLC, 309 F.R.D. 645, 652 (W.D. Wash. 2015) (internal quotation omitted). “Granting leave to amend causes substantial prejudice if it alters the Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 10 of 12 Page 11 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 litigation, creates additional discovery, or causes an extreme delay.” Heffington v. Gordon, Aylworth & Tami, P.C., case no. 3:16-cv-02079-AC (D. Or., 2017). The need for additional discovery alone does not establish undue prejudice. Genentech, Inc. v. Abbott Lab., 127 F.R.D. 529, 530-31 (N.D. Cal. 1989). Adding Sunpower as a defendant under a successor employer theory would not make the case more complex. Litigating the successor employer relationship will involve limited discovery on this narrow issue of the before and after comparison of the operations of Solarworld and Sunpower. Makaneole has already served the discovery request on this issue to Solarworld and expects an additional request will be submitted to Sunpower. Makaneole expects any further discovery will be limited and conducted within the confines of the discovery deadlines set by this Court, or with an additional few months if necessary. With discovery limited to the narrow issue of “successor employer”, it is anticipate that the material facts will not be in dispute. Thus making the issue of “successor employer” a legal question for the court to decide. Warn v. Brooks-Scanlon, Inc. 256 F.Supp. 690, 693 (D. Or. 1966). Like the other dispositive legal questions in the case, such as the application of the legal definition of “work time” and whether the de minimis defense applies, this case is expected to be decided on summary judgment, thus reinforcing the appropriateness of certification. Solarworld’s argument is not based on a realistic view of the case and it has failed to meet its burden to show substantial prejudice. To demonstrate substantial prejudice, Solarworld must show that Makaneole was the one who changed “tactics or theories.” Wizards of the Coast LLC, 309 F.R.D. at 652. Solarworld cannot meet this requirement because it was Solarworld that changed tactics by allowing the acquisition by Sunpower, forcing Makaneole to amend his complaint to include Sunpower as a party. In fact, Solarworld objected to all discovery requests relevant to the acquisition because Sunpower was not a party to the case. Solarworld’s new tactic of selling to Sunpower attempts to avoid liability to the class – not by winning on the merits – but by Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 11 of 12 Page 12 - Reply to Plaintiff’s Motion To Amend Amended Complaint SCHUCK LAW, LLC 208 E 25th Street • Vancouver, WA 98663 Tel (360) 566-9243 • Fax (503) 575-2763 leaving a shell of a company that cannot pay the judgment. Solarworld’s new tactic will prejudice Makaneole and class members without the amendment because they may be unable to collect on any judgment obtained. Solarworld cannot be held to be prejudiced when it created the need for the amendment. Solarworld failed to meet its burden to show substantial justice. Conclusion For the foregoing reasons, the Court should grant Makaneole’s motion to amend its complaint. DATED: February 21, 2019. Schuck Law, LLC /s/ Stephanie J. Brown STEPHANIE J. BROWN, Esquire OSB # 030019, WSB # 42030 (360) 566-9243 Attorney for Plaintiff Case 3:14-cv-01528-JR Document 239 Filed 02/21/19 Page 12 of 12