Bauer v. Old Dominion Freight Line, Inc.Response in Opposition to Second Motion for Leave to File Amended Complaint/Petition 68 Oral Argument requested.D. Or.February 28, 20181 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 Elizabeth A. Falcone, OSB No. 111694 elizabeth.falcone@ogletree.com Jennifer A. Nelson, OSB No. 034086 jennifer.nelson@ogletreedeakins.com Kelly S. Riggs, OSB No. 094862 kelly.riggs@ogletreedeakins.com Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 222 SW Columbia Street, Suite 1500 Portland, OR 97201 Telephone: 503.552.2140 Fax: 503.224.4518 Attorneys for Defendant OLD DOMINION FREIGHT LINE, INC. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION CODY K. BAUER, Plaintiff, v. OLD DOMINION FREIGHT LINE, INC., a Virginia Corporation, Defendant. Case No.: 3:17-cv-00510-SB DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT Oral Argument Requested I. INTRODUCTION Plaintiff Cody Bauer’s Motion to Amend his Second Amended Complaint (Dkt. 68) fails to apprise the Court of the parties’ complete conferral history regarding this issue or of the fact that Old Dominion ultimately agreed to stipulate to Plaintiff’s filing of his proposed Third Amended Complaint, so long as the stipulation provided that: (1) no further discovery or delay in the case schedule as a result of the amendment would be permitted; (2) no further amendments to the complaint are anticipated; and (3) notwithstanding its agreement to allow the amendment, Old Dominion reserved its right to move for summary judgment and/or seek Rule 11 sanctions Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 1 of 14 2 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 based on Plaintiff’s new allegations. Although Plaintiff’s counsel agreed with the substance of each of these points during telephone conferral, Plaintiff thereafter inexplicably refused to execute an appropriate stipulation and instead filed this motion. Old Dominion’s conditions to stipulate to a third amendment of the complaint were entirely reasonable, given that Plaintiff’s purported need to amend his complaint is a problem entirely of his own making. No other party is to blame for Plaintiff’s untimely request to add claims for pre-judgment interest and an additional claim under the federal Surface Transportation Assistance Act (“STAA”). Plaintiff was not permitted to bring a claim under the STAA until 210 days after he filed an administrative STAA complaint with the U.S. Department of Labor, but it was his decision to file this lawsuit months before filing a STAA complaint. Further, he alone decided not to ask the Court to stay these proceedings pending the outcome of the administrative complaint. And Plaintiff alone – knowing the STAA complaint was pending – failed to ever ask the Court to set a later deadline to add claims. Plaintiff has known since at least May 2017, when he filed his administrative STAA complaint, that he would be unable to assert a claim under the STAA in this suit until at least December 1, 2017 (i.e., 210 days later), yet he did absolutely nothing to protect his ability to do so as part of this case. Accordingly, the Court remains free to deny Plaintiff’s motion to amend his complaint. Indeed, wholesale denial of the motion would lie squarely within the Court’s discretion. Old Dominion requests that, at the very least, the Court allow the amendment only under the conditions it previously proposed to Plaintiff. This is the only way to ensure that no further delay or prejudice to Old Dominion results from the amendment. II. BACKGROUND As the Court is by now well-aware, Plaintiff worked for Old Dominion as a local Pickup and Delivery Driver (“P&D Driver”), assigned to its Portland Service Center, from September 2014 until Old Dominion terminated his employment on December 15, 2016, for violation of company policy after when, after an afternoon snowstorm, Plaintiff failed to return to the Service Center the night before. Although Plaintiff still had approximately 2 hours and 45 Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 2 of 14 3 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 minutes of on-duty time remaining under the federal Department of Transportation regulations (which include exceptions allowing drivers to exceed 14 hours in circumstances that applied to Plaintiff on the night in question), he unilaterally decided to take his truck and trailer, loaded with a customer’s property, to an off-route, unattended street, and left it there overnight, while he claims he stayed the night at a friend’s apartment in Tigard. Plaintiff did not call Old Dominion’s dispatch prior to making that decision and – when he finally did notify dispatch of his whereabouts – he refused to comply with Old Dominion’s request that he return to the Service Center, despite the fact that he still had approximately 2 hours of on-duty time remaining. On February 23, 2017, Plaintiff filed this lawsuit (initially in state court), claiming that Old Dominion terminated him in retaliation for the following actions: (1) complaining about Old Dominion’s meal break auto-deductions; (2) filing a complaint with the Oregon Bureau of Labor and Industries about the meal break auto-deductions; (3) making a wage claim based on those facts; and (4) refusing to drive beyond what he contends is “the legal 14 hour limit” on December 14, 2016. See generally, 2nd Am. Comp. (Dkt. 10). Plaintiffs’ current operative complaint asserts only state law retaliation claims. Id. On May 1, 2017, Plaintiff filed an administrative complaint with the U.S. Department of Labor/Occupational Safety and Health Administration (“DOL”) asserting retaliation claims under the federal Surface Transportation Assistance Act, 49 U.S.C. § 31105(a)(1)(B) and (C) (“STAA”), based on the same facts related to his conduct on December 14, 2016, and termination on December 15, 2016. Robb Decl. (Dkt. 69), Ex. 2 (“STAA Complaint”). Specifically, Plaintiff alleged that Old Dominion terminated him because, on December 14, 2016, he: (1) “refus[ed] to operate a vehicle when operation violate[d] a regulation, standard or order of the United States related to commercial vehicle safety, health or security” (i.e., his refusal to driver beyond the alleged “14-hour limit”); (2) “refus[ed] to operate a vehicle when the employee reasonably apprehend[ed] serious injury to the employee or public because of the vehicle’s hazardous safety or security condition (as detailed further below, Old Dominion is still Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 3 of 14 4 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 unclear on what this allegation is based, as Plaintiff never testified about any alleged safety concern, let alone one related to his tractor-trailer); and/or (3) “accurately report[ed] his hours” (i.e., he told the dispatcher he had been on-duty for 14 hours). Id. Under the STAA, Plaintiff was required to file an administrative complaint with the DOL before filing a civil suit; thereafter, he was prohibited from bringing suit under the STAA in federal court until 210 days after he filed that complaint (unless the DOL first issue a decision, which did not happen). 49 U.S.C. §§ 31105(b)(1) and (c). Despite having, just one month before, filed the STAA complaint with the DOL, at no time during the Rule 26 conferral or the Rule 16 conference on June 22, 2017, did Plaintiff ask the Court to stay this case or to set a deadline to amend pleadings and add claims that would allow sufficient time to first resolve his STAA Complaint with the DOL. On June 22, 2017, the Court issued a scheduling order setting a deadline of September 22, 2017, to amend pleadings or add claims. Dkt. 18. Although that deadline was more than two months earlier than the date that Plaintiff would have been able to file a civil STAA claim, Plaintiff failed to alert the Court to this issue or ask for a deadline that would accommodate it. Instead, he went about prosecuting this case, seeking expansive and costly discovery. December 1, 2017, came and went without the DOL issuing any order on Plaintiff’s STAA Complaint (or any word from Plaintiff as to his intent to sue under the STAA). Almost two months later, on January 23, 2018, Plaintiff’s counsel sent an email to defense counsel with the proposed Third Amended Complaint, asking whether Old Dominion would stipulate to its filing. Riggs Decl. Ex. 1. Only three days later, on Friday, January 26, 2018, defense counsel responded that Old Dominion was considering Plaintiff’s request and would respond the next week. Riggs Decl. Ex. 2, p. 5. On February 1, 2018, Plaintiff’s counsel sent a follow-up email, and the next day, Friday, February 2, 2018, defense counsel provided a substantive response. Riggs Decl. Ex. 2, p.4-5. Specifically, defense counsel advised that Old Dominion would agree to allow Plaintiff to file a Third Amended Complaint to add pre-judgment interest and a claim under the STAA, but only if Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 4 of 14 5 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 Plaintiff would agree to stipulations that: (1) No further discovery or delay in the proceedings (including additional amendments to the complaint) will be permitted; and (2) Plaintiff would not assert the portion of the claim based on alleged “refusing to operate a vehicle when the employee reasonably apprehends serious injury to the employee or public because of the vehicle’s hazardous safety or security condition” in this or a separate lawsuit. Id. at p. 4-5. With regard to the second proposed stipulation, defense counsel explained that: Despite extensive discovery in this case (which is now closed, with the exception of very limited discovery to be completed under the Court’s Discovery Order of January 31, 2018), there is no evidence whatsoever that Plaintiff raised any concern of serious injury to himself or others, let alone one related to his “vehicle’s hazardous safety or security condition.” Accordingly, there is no good faith basis to assert such a claim, and we view inclusion of such allegation as a violation of Rule 11. Id. Approximately one hour later, on February 2, 2018, Plaintiff’s counsel, Steve Brischetto, responded rejecting Old Dominion’s proposal wholesale, stating “we aren’t interested in your proposal below and will file a motion to amend,” and asked defense counsel to confer with Matthew Ellis or Dezi Robb by telephone before Plaintiff filed his motion. Riggs Decl. Ex. 2, p. 4. Defense counsel responded, asking if there was any part of Old Dominion’s proposal that was agreeable to Plaintiff. Id. p. 3-4. Brischetto again flatly refused to confer, claiming that this amounted to “bargain[ing] over amending the complaint,” (rather than attempting to resolve disputes before involving the Court, as Old Dominion viewed it). Although Old Dominion had not proposed to do so, Brischetto also pronounced that Plaintiff would not agree to “alter the existing deadlines for the case.” Id. p. 3. On Monday, February 5, 2018, Old Dominion’s counsel conferred with Plaintiff’s counsel, Ellis, by telephone. Riggs Decl. ¶ 4, Ex. 2, p. 1-2. During that call, Ellis clarified that Plaintiff in fact did agree that discovery should not be reopened as a result of the amendment and that no further amendments to the complaint were anticipated (i.e., Old Dominion’s first Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 5 of 14 6 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 proposed stipulation). Id. Thus, despite Brischetto’s complete rejection of Old Dominion’s proposal, the only actual dispute was whether Plaintiff could or would include the portion of his proposed claim regarding a serious apprehension of injury to himself or others related to his vehicle’s hazardous safety or security condition. Counsel for the parties continued to confer about that issue, including Old Dominion’s position that there was no possible evidence to support that allegation, and Ellis’ suggestion that although Plaintiff disagreed, Plaintiff should be allowed to assert the claim and but Old Dominion could move against it at summary judgment. Id. In light of Plaintiff’s agreement that discovery would not be reopened and no further amendments were anticipated, defense counsel advised Plaintiff’s counsel that she would discuss with Old Dominion whether it would be willing to allow the amendment in order to avoid motion practice on the front end, and then move against it at summary judgment. Id. On February 7, 2018, defense counsel sent a follow up email to Plaintiff’s counsel advising that Old Dominion would agree to allow Plaintiff to file the Third Amended Complaint as drafted, but it would like the stipulation to be signed on behalf of both parties and state that: “(1) no further discovery or delay in the case schedule as a result of the amendment will be permitted; (2) no further amendments to the complaint are anticipated; and (3) Old Dominion reserves its right to move for summary judgment and/or seek Rule 11 sanctions based on these allegations.” Riggs Decl. Ex. 2, p. 1. In light of the fact that Ellis had effectively agreed to the substance of these proposed stipulations during telephone conferral, defense counsel expected that this proposal would resolve the dispute and that a motion to amend would not be necessary. Id., at ¶ 5. Inexplicably, however, Ellis responded by email by stating “We won’t sign that stipulation. We will file our motion. Thanks.” Id., at Ex. 2, p. 1. Plaintiff then filed this motion on February 14, 2018. Dkt. 68. III. ARGUMENT A. Plaintiff Has Not Shown Good Cause to Amend the Scheduling Order. In his motion, Plaintiff discusses the “extreme liberality” with which the Ninth Circuit and its district courts grant amendments of complaints under Federal Rule of Civil Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 6 of 14 7 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 Procedure 15(a). Old Dominion does not dispute that Rule 15’s policy favoring amendment is liberally applied by the Ninth Circuit. See, e.g., Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (holding that Rule 15 “instructs that leave shall be freely given when justice so requires,” and noting that the Ninth Circuit has “stressed Rule 15’s policy of favoring amendments, and we have applied this policy liberality”). Plaintiff ignores, however, that Rule 15 does not provide the standards by which the Court should evaluate this Motion. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). Rather, “[o]nce the district court had filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 which established a timetable for amending pleadings that rule’s standards control[].” Id. Accordingly, Plaintiff’s Motion, and whether he is able to once again amend his complaint, is governed by Rule 16(b), not Rule 15(a). See id.; James v. Oregon Sandblasting & Coating, Inc., 3:15-CV-01706-HZ, 2016 WL 5402218, at *1 (D. Or. Sept 25, 2016) (“Once a district court files a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16, and amending the pleadings would require modifying such scheduling order, a party must move to modify the scheduling order. The schedule ‘may be modified only for good cause and the judge’s consent.’ Fed. R. Civ. P. 16(b)(4).”); see also Muniz v. UPS, Inc., 731 F. Supp. 2d 961, 967 (N.D. Cal. 2010) (holding that when a court’s schedule has “been ordered, a party’s right to amend its pleading is governed by this good cause standard [set forth in Rule 16(b)], not the more liberal standard of Rule 15(a)(2)”). Likewise, Plaintiff cites to factors such as undue delay, bad faith, or dilatory tactics as the standard which this Court should apply. Pl.’s Mtn. at pg. 3-5. But those factors are to be used when evaluating a motion under Rule 15. That is not the motion before the Court. See Johnson, 975 F.2d at 607 (holding that Rule 15 does not provide standards by which a court would consider a motion for leave to amend after the issuance of a pretrial scheduling order). A court may modify a case management schedule “only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Zivkovic v. So. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (“In general, the pretrial scheduling order can only be modified upon Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 7 of 14 8 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 a showing of good cause.”) (internal citation and quotation marks omitted). Indeed, the pretrial schedule can be modified “if it cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). “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.” Id. at 609. “If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted.” Zivkovic, 302 F.3d at 1087. Courts in the Ninth Circuit apply a three-step inquiry to resolve the question of diligence in determining good cause under Rule 16: To demonstrate diligence under Rule 16’s “good cause” standard, the movant may be required to show the following: (1) that she was diligent in assisting the Court in creating a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that she was diligent in seeking amendment of the Rule 16 order, once it became apparent that she could not comply with the order. Chao v. Westside Drywall, Inc., 709 F. Supp. 2d 1037, 1073 (D. Or. 2010), as amended (May 13, 2010) (citing Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999). Here, Plaintiff has not shown good cause supporting his request to modify the case management schedule to allow him to amend his complaint five months after the deadline established by this Court. Indeed, Plaintiff has not even attempted to demonstrate good cause in his moving papers, and cannot do so due to the circumstances in which he has brought this Motion. “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.” Johnson, 975 F.2d at 609. Plaintiff has failed to demonstrate diligence in seeking the amendment. Rather, his counsel suggests they were ignorant to how long the administrative STAA charge might take to process, learning about it in December 2017, when they got a letter from the DOL. This is not a sufficient excuse, because the statute itself makes it clear that a civil Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 8 of 14 9 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 suit cannot be filed for at least 210 days after charge filing. 49 U.S.C. § 31105(b) and (c). What’s more, even if Plaintiff’s counsel was ignorant as to how long the charge process would take, that does not explain their failure to raise the concurrently-pending STAA administrative complaint with the Court or Old Dominion when the case schedule was set or at any time thereafter until now, months after the deadline passed. Further, Plaintiff tells the Court that his counsel did not act on the DOL’s December 5 letter until sending the proposed amended complaint to defense counsel nearly two months later (on January 23, 2018) because of the holidays. But Plaintiff’s counsel was paying attention to this case between December 5, 2017, and January 23, 2018. They were appearing at hearings before the Court, and preparing, conferring about, and filing motions to compel, apparently all the while knowing Plaintiff would seek to amend his complaint.1 This is not diligence, but a complete lack of attention to this important issue affecting the schedule of this case and both parties’ rights to a speedy determination. As the Ninth Circuit has held, “carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” Id. “A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.” Akey v. Placer Cnty., No. 2:14-cv-2402 KJM DB, 2017 WL 1831944, at *3 (E.D. Cal. May 8, 2017). Despite Plaintiff’s argument to the contrary, a modification of the scheduling order to allow this very late amendment is not warranted. Courts in the Ninth Circuit routinely deny motions for leave to amend under similar circumstances. For example, in Muniz v. UPS, Inc., 731 F. Supp. 2d at 966-67 (N.D. Cal. 2010), the plaintiff sought to amend her complaint to add a state law whistleblower claim under California law. The court denied the motion, however, and found that the plaintiff had demonstrated a lack of diligence in waiting over a year from when she filed her complaint to add 1 See e.g. Plaintiff’s Motion to Compel Settlement Agreements, filed on December 7, 2017 (Dkt. 53); and Plaintiff’s Motion to Compel Documents Withheld or Redacted on Claim of Privilege filed on January 26, 2018 (Dkt. 62), about which the parties conferred extensively between January 4, and 18, 2018. Riggs Decl. ¶ 6. Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 9 of 14 10 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 her new claims; due to her lack of diligence, amending the scheduling order was “not warranted.” Id. at 967. The plaintiff further asserted that UPS would not be prejudiced by the new amendments because the new claims would not necessitate additional discovery. Id. The court rejected this argument, too, holding that adding new claims could potentially require a new round of discovery and delay proceedings, which would necessarily prejudice UPS. Id. Similarly, in Barringer v. Clackamas Cty., No. 3:09-CV-00068-AC, 2012 WL 1574817, at *2 (D. Or. May 3, 2012), the plaintiff sought to amend her complaint to omit two defendants and add a Section 1983 claim, arguing that she demonstrated good cause because her new lawyer had only represented her for one month. The court denied the motion, reasoning that the plaintiff had not demonstrated the “diligence required to show good cause for modifying the scheduling order” because, although she did have newly retained counsel, the “fact remains that her previous counsel withdrew from the case in April 2011, two years after the case was filed. [Plaintiff] did not effectively use that time or act diligently to file this motion for leave to amend in a timely manner.” Id. Just as in Muniz and Berringer, even though Plaintiff here also argues that no additional discovery will be necessitated, Plaintiff’s lack of diligence does not warrant the Court amending its scheduling order. Plaintiff has known about the possibility of an additional claim at least since the time he filed the STAA administrative complaint in May 2017, he has heavily litigated this case since that time, and now wants to add a new theory at the eleventh hour. As set forth above, Plaintiff’s Motion to Amend his Second Amended Complaint is many months untimely, and he has no one to blame for that untimeliness but himself. He has not even attempted to show the good cause required to modify the scheduling order. The Court would be well within in its rights to deny the amendment. As described below, the Court would also be more than justified in placing conditions on any such amendment in order to avoid prejudice to Old Dominion. Int’l Ass’n of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1391 (9th Cir. 1985) (“The district court may, in its discretion, impose ‘reasonable Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 10 of 14 11 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 conditions’ on a grant of leave to amend a complaint.” (Quoting Mountain View Pharmacy v. Abbott Laboratories, 630 F.2d 1383, 1386 (10th Cir. 1980)). B. If Amendment is Permitted, the Court Should Prohibit Any Further Discovery or Additions to the Complaint As noted above, the deadline the Court set for the parties to file amended pleadings or add additional claims has long since passed (in September 2017), without any action by Plaintiff to address the potential inclusion of a STAA claim. With very limited exceptions, discovery in this case (which has already been quite extensive for a single-plaintiff case and resulted in an unusual number of discovery motions) has closed. Although he was unwilling to sign a stipulation to such effect, Plaintiff agreed during conferral and in his motion that “he does not intend to do any additional discovery in regards to the proposed claim” and “no additional discovery is necessary.” Pl.’s Mtn., p. 5. He also represented during conferral that no additional amendments were anticipated. Riggs Decl. ¶ 4. Accordingly, in order to avoid further delay and prejudice to Old Dominion, if the Court allows the amendment it should also issue an order expressly providing that no further discovery or delay in the case schedule as a result of the amendment, and no further amendments (excluding withdrawal of any of Plaintiff’s allegations or claims) will be permitted. C. If Amendment is Permitted, the Court Should Order that Old Dominion Maintains Its Right to Move against Plaintiff’s New Allegations In order to avoid potential prejudice to Old Dominion, if the amendment is allowed, the Court order should also expressly acknowledge that Old Dominion has not waived its right to move for summary judgment against or seek Rule 11 sanctions based on Plaintiff’s new allegations by not opposing Plaintiff’s motion to amend.2 As noted above, despite extensive 2 Ordinarily defense counsel would not believe that an order recognizing a defendant’s right to move for summary judgment or seek Rule 11 sanctions against an allegation is necessary. However, given the history in this case and the fact that Plaintiff refused to agree to this in writing (even after Ellis effectively agreed by telephone), Old Dominion is concerned that Plaintiff may later try to argue that it somehow waived its right to move against Plaintiff’s new allegations by not wholesale opposing his motion to amend. Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 11 of 14 12 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 discovery in this case, Plaintiff has no evidence whatsoever to support the portion of his proposed claim under the STAA based on alleged “refusing to operate a vehicle when the employee reasonably apprehends serious injury to the employee or public because of the vehicle’s hazardous safety or security condition.” The specific section of the STAA under which Plaintiff asserts that portion of his claim expressly applies only to refusals to drive based on a “reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” 49 U.S.C. § 31105(a)(1)(B) (emphasis added). Here, there is no evidence that Plaintiff held or voiced any “apprehension of serious injury” to himself or others based on his vehicle’s condition that night. Perhaps if Plaintiff had informed Old Dominion (or even testified at deposition) that he was concerned that it was unsafe to drive because, for example, his truck did not have chains (it did), or the lights were broken (they were not), that might be a sufficient basis to at least assert a prima facie claim under this section of the STAA. However, Plaintiff did not make any such complaints, nor did he testify that he had such concerns. Rather, at most, the only evidence in this case is that Plaintiff refused to continue driving because he purportedly believed that it would violate the hours of service rules prohibiting drivers from being on duty more than 14 hours, unless certain exceptions or circumstances apply (which, in fact, did apply to Plaintiff that night). Plaintiff therefore has no good faith basis to assert a claim based on a “reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” The Court should either deny his request to include that part of his claim now, or alternatively, expressly acknowledge Old Dominion’s right to move against and/or seek Rule 11 sanctions based on those allegations at summary judgment. Likewise, the Court should also recognize that Old Dominion remains free to move for summary judgment against the remainder of Plaintiff’s new allegations. / / / / / / Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 12 of 14 13 – DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 IV. CONCLUSION For the reasons set forth above, Old Dominion respectfully requests that if the Court allows Plaintiff to file a Third Amendment Complaint, the Court enter an order limiting Plaintiff’s amendments and/or expressly approving Old Dominion’s proposed stipulations as set forth above, and for such other relief as the Court deems appropriate. Dated: February 28, 2018. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: s/Kelly S. Riggs Elizabeth A. Falcone, OSB No. 111694 elizabeth.falcone@ogletree.com Jennifer A. Nelson, OSB No. 034086 jennifer.nelson@ogletreedeakins.com Kelly S. Riggs, OSB No. 094862 kelly.riggs@ogletreedeakins.com Telephone: 503.552.2140 Attorneys for Defendant OLD DOMINION FREIGHT LINE, INC. Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 13 of 14 1 – CERTIFICATE OF SERVICE OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 222 SW Columbia Street, Suite 1500 | Portland, OR 97201 Phone: 503.552.2140 | Fax: 503.224.4518 CERTIFICATE OF SERVICE I hereby certify that on February 28, 2018, I served the foregoing DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND SECOND AMENDED COMPLAINT on: Scott T. Cliff The Law Office of Scott T. Cliff 7307 SW Beveland Rd., Suite 213 Portland, OR 97223 Phone: 503-922-2071 Email: scott@scottcliff.com Attorney for Plaintiff Stephen L. Brischetto Dezi Rae S. Robb Law Offices of Stephen L. Brischetto 621 SW Morrison Street, Suite 1025 Portland OR 97205 Telephone: 503 223-5814 Email: slb@brischettolaw.com drobb@brischettolaw.com Attorney for Plaintiff Matthew C. Ellis Law Office of Matthew C. Ellis 621 SW Morrison St., Suite 1025 Portland, Oregon 97205 Email: matthew@employmentlawpdx.com Attorney for Plaintiff by electronic means through the Court’s Case Management/Electronic Case File system, which will send automatic notification of filing to each person listed above. by mailing a true and correct copy to the last known address of each person listed above. It was contained in a sealed envelope, with postage paid, addressed as stated above, and deposited with the U.S. Postal Service in Portland, Oregon. by e-mailing a true and correct copy to the last known email address of each person listed above. Dated: February 28, 2018. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: s/ Riki Johnson Riki Johnson, Practice Assistant riki.johnson@ogletreedeakins.com 33139102 1032846.000055 Case 3:17-cv-00510-SB Document 82 Filed 02/28/18 Page 14 of 14
