Melissa Reimer v. Snohomish County Fire District ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 16 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELISSA A. REIMER, No. 20-35362
Plaintiff-Appellant, DC No. 2:17-cv-0384-RAJ
v.
MEMORANDUM*
SNOHOMISH COUNTY FIRE
DISTRICT NO. 1, an agent of Snohomish
County; BRAD REDDING, an agent and
employee of Snohomish County, in his
official capacity and individually,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted March 1, 2021
Seattle, Washington
Before: TASHIMA, RAWLINSON, and BYBEE, Circuit Judges.
Concurrence by Judge RAWLINSON
Plaintiff Melissa Reimer appeals the judgment in favor of Defendants
Snohomish County Fire District No. 1 and Brad Redding on her claims of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
employment discrimination under the Americans With Disabilities Act (“ADA”),
the Washington Law Against Discrimination, and her claims of intentional and
negligent infliction of emotional distress under Washington tort law. We have
jurisdiction under 28 U.S.C. § 1291. We review the grant of summary judgment de
novo, Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015), and
denial of leave to amend for an abuse of discretion, Hall v. City of Los Angeles,
697 F.3d 1059, 1072 (9th Cir. 2012). We reverse and remand for further
proceedings.
1. The district court erred by granting summary judgment to Defendants
on Reimer’s state law claims. Revised Code of Washington (“RCW”) § 4.96.020
provides that “[l]ocal governmental entities shall make available the standard tort
claim form described in this section [or its own tort claim form in lieu of the
standard tort claim form] with instructions on how the form is to be presented and
the name, address, and business hours of the agent of the local governmental
entity.” RCW § 4.96.020(3)(c). The statute further provides that “[t]he failure of
a local governmental entity to comply with the requirements of this section
precludes that local governmental entity from raising a defense under this chapter.”
Id. § 4.96.020(2).
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In her opposition to Defendants’ motion for summary judgment, Reimer
placed Defendants’ compliance with § 4.96.020(3) at issue. “Plaintiff contends
there is no tort claim form that Defendants have filed that reflects that it comports
with the statutory requirements outlined [in] RCW 4.96.020(3) and that the tort
claim form of Snohomish County Fire District #1 in 2015 parallels the State Tort
Claim Form [promulgated by] Washington State’s Office of Risk Management,
Department of Enterprise Services.” In response, Defendants presented no
evidence to demonstrate their compliance with § 4.96.020(3). Accordingly, under
the statute, Defendants are precluded from relying on Reimer’s failure to file a
notice of claim as an affirmative defense in this litigation. See RCW § 4.96.020(2).
RCW § 4.96.020(3)(d) is not to the contrary. Subsection (3)(d) applies
when a governmental entity provides a claim form, but the form fails to require the
relevant information or incorrectly lists the agent with whom the claim is to be
filed. Id. Here, however, Defendants have not shown that they provided a claim
form at all. RCW § 4.96.020(3)(d), therefore, does not apply. See Fast v.
Kennewick Pub. Hosp. Dist., 354 P.3d 858, 863–66 (Wash. Ct. App. 2015), rev’d
on other grounds, 384 P.3d 232 (Wash. 2016) (en banc).
2. The district court abused its discretion by denying Reimer leave to
amend her complaint with respect to her ADA claim. Claims of employment
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discrimination fall under Title I of the ADA, 42 U.S.C. §§ 12111–17. This is true
regardless of whether the defendant is a private employer or, as here, a public
employer. See Bass v. County of Butte, 458 F.3d 978, 980 (9th Cir. 2006)
(explaining that “Title I prohibits public and private employers from discriminating
against qualified individuals with disabilities in employment practices”). Here,
Reimer’s pleadings correctly cited “42 U.S.C. § 12111” (which is a part of Title I),
but mistakenly referred to “Title III.” Based on the pleadings’ mistaken reference
to Title III, Defendants moved for summary judgment on the claim. In response,
Reimer sought leave to amend her first amended complaint, describing the
pleadings’ reference to Title III as a “scrivener’s error.” The district court denied
leave to amend, noting that the case had been pending for three years, the deadline
for amending the pleadings had passed, and a motion for summary judgment was
pending.
“Courts may decline to grant leave to amend only if there is strong evidence
of ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or] futility of
amendment, etc.’” Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma County, 708
F.3d 1109, 1117 (9th Cir. 2013) (alteration in original) (quoting Foman v. Davis,
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371 U.S. 178, 182 (1962)). “[T]he consideration of prejudice to the opposing party
. . . carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003) (per curiam).
Here, there was no evidence of undue delay, bad faith, or dilatory motive on
the part of Reimer. Reimer promptly sought to correct the pleadings’ mistaken
reference to Title III as soon as the error was brought to her attention. It is well
established, moreover, that “[d]elay alone does not provide sufficient grounds for
denying leave to amend.” Hurn v. Ret. Fund Tr. of Plumbing, Heating & Piping
Indus. of S. Cal., 648 F.2d 1252, 1254 (9th Cir. 1981). And a scheduling order can
be amended upon a showing of good cause. See Coleman v. Quaker Oats Co., 232
F.3d 1271, 1294 (9th Cir. 2000).
Nor does this case involve repeated failure to cure deficiencies by
amendments previously allowed. Although Reimer had amended her complaint
once before, that amendment had nothing to do with the complaint’s mistaken
reference to Title III. Reimer was seeking her first opportunity to cure this error,
and, as noted, she sought that opportunity as soon as she was made aware of it.
Finally, Defendants have not shown, or even attempted to show, that they
would be prejudiced by the amendment. There certainly is no evidence that
Defendants relied to their detriment on the pleadings’ reference to Title III. In fact,
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in an earlier motion to dismiss Reimer’s ADA claim, Defendants plainly construed
the claim as arising under Title I and challenged it on that basis. Defendants there
argued that “Plaintiff does not assert facts sufficient to give rise to a cognizable
claim under 42 U.S.C. § 12111 et seq.” (Emphasis added.)
• ! •
The judgment of the district court is reversed and the case is remanded for
further proceedings consistent with this disposition
REVERSED and REMANDED.
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FILED
Reimer v. Snohomish Cty. Fire Dist. No. 1, Case No. 20-35362
MAR 16 2021
Rawlinson, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.
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