Shawn Parker vs Trader Joe’s Company et al

Case Number

22CV03213

Case Type

Hearing Date / Time

Wed, 10/11/2023 - 10:00

Nature of Proceedings

Motion for Leave Amend Complaint

Tentative Ruling

Plaintiff Shawn Parker by Jonathan McKee

Defendant Trader Joe’s Company by Brandie Charles, Nicole Vongchanglor

Issue

Motion for Leave Amend Complaint. [Question here is whether Plaintiff may include two other Defendants within his Complaint regarding employment wrongdoings?]

Rulings

1. The request to file an Amended Complaint naming Zeb Albert and Caroline Neufeld as Defendants is GRANTED: (1) the Amended Complaint is to be filed by 10/17/23; (2) the two new Defendants are to be personally served by 10/31/23. (Do not raise the issue of who pays for cost of personal service; Plaintiff or Plaintiff’s counsel pays for it now; Plaintiff may seek reimbursement in a cost bill if he prevails.)

2. The Court designates this case as complex litigation because of the unusual background, including the discovery issues such as Shawn Parker’s deposition. Complex litigation fees are waived; it is done to be certain the case is processed properly.

3. The next CMC will be on 11/8/23 at 8:30am for a status report; specifically, to address the fact that (a) the Amended Complaint has been filed, and (b) has been personally served, and (c) the scheduling of Shawn Parker’s deposition if it has not been taken by then (Plaintiff will be deposed before Zeb Albert or Caroline Neufeld Trader Joe’s PMK or any other witnesses); and (d) the scheduling of the depositions of Zeb Albert, Caroline Neufeld and Trader Joe’s PMK if not already completed but after Shawn Parker.    

4. The following dates are confirmed: Defendant’s Motions to Compel on 10/25/23; final CMC 3/6/24; MSC 4/5/24 Trial Date 4/24/24.

5. The Court anticipates additional CMCs will be set.

Analysis

Brief Background

This case was filed by Plaintiff via counsel David Secrest more than a year ago on 8/18/22; answered by Trader Joe’s on 11/23/22; Plaintiff alleged that Trader Joe’s Company and Zeb Albert discriminated, retaliated, and harassed him because of his race and/or disability. Defendant Trader Joe’s Company denies the claims and denies that Plaintiff is entitled to any recovery. Plaintiff’s initial complaint listed two Defendants – Trader Joes’ Company and Zeb Albert; the trial date of 11/1/23 was set on 12/21/23;  Zeb Albert was dismissed on 2/23/23; on 5/8/23 Plaintiff’s counsel David Secrest substituted out and Christine Adams substituted in; on 6/29/23 the trial date was continued to 4/24/24; subsequently Christine Adams’ Motion to be relieved as counsel was granted; on 7/28/23 Jonathan McKee substituted in as Plaintiff’s counsel; on 8/31/23 Plaintiff’s counsel filed this motion for leave to amend; set the hearing for 10/11/23.

The Motion to Amend

Filed 8/31/23; 42 pages; summarized; seeks to add Zeb Albert and Caroline Neufeld, who are employees of Trader Joe's, as Defendants; claims they are key actors in the wrongful termination of Plaintiff by Trader Joe's. Zeb Albert inadvertently was dismissed by error; Caroline Neufeld appears at least eight times within the Original Complaint as an actor for Trader Joe's; both parties have expressed to the other the intention to depose witnesses some of whom are Zeb Albert and Caroline Neufeld; tentative times for depositions are set for the month of October; schedule for trial seems sound at this juncture.

Opposition

Filed 9/28/23; 22 pages; summarized; throughout this litigation, Plaintiff has continuously prevented Trader Joe’s Company from obtaining necessary discovery, which has already resulted in the Court continuing the trial date by five months; Plaintiff has hidden behind the high turnover of his counsel to justify his intentional delays; Plaintiff tries a new approach to further delay this case by filing a Motion for Leave to Amend Original Complaint six months before the current trial date and one year after Plaintiff filed his Complaint and now that he is on his third counsel, Plaintiff seeks to amend the Complaint to add two Defendants: one of whom he named in the original Complaint and then voluntarily dismissed six months ago, his former supervisor Zeb Albert, and one of whom he identified in his original Complaint eight times, his former Regional Vice President Caroline Neufeld. Argues that the Court should deny Plaintiff’s Motion for Leave to Amend Original Complaint, because:

1. Plaintiff Has Known The Identity Of The Proposed Defendants And The Facts Allegedly Giving Rise To His Claims Against Them Since The Time He Filed His Initial Complaint.

2. Plaintiff’s Continuous Turnover Of Counsel Has Significantly Delayed This Case.

3. Plaintiff Has Thwarted Defendant’s Ability To Obtain Necessary Discovery.

4. Plaintiff Is Using The Instant Motion As An Excuse To Further Delay Discovery.

5. Due To Plaintiff’s Dilatory Conduct, The Court Was Already Required To Continue The Trial Date By Five Months.

6. Plaintiff Has Improperly Attempted To Serve The Proposed Defendants With The Motion Via An Acknowledgement of Receipt, Which Is Improper.

7. Plaintiff’s Proposed Amendment Is Futile.

8. Plaintiff Filed The Motion To Intentionally Delay Discovery Defendant’s Ability To Adequately Prepare Its Defenses.

9. Plaintiff Failed To Act With Due Diligence In Seeking The Proposed Amendment To His Complaint.

10. The Amendment of the Complaint Would Prejudice Defendant.

11. Plaintiff Cannot Amend A Complaint To Add A Potential Defendant In Place Of A “Doe” Defendant When Plaintiff Knew Of The Potential Defendant’s Identity.

12. Plaintiff’s Motion Is Procedurally Deficient Because It Fails To Set Forth Any Evidence To Warrant Granting His Motion.

Reply

Summarized; filed 10/4/23; litigation got a fresh start on July 28, 2023; Plaintiff obtained new counsel; has not, at this point, requested an extension of the trial date; anticipates adherence to the set trial date [April 5, 2024]; has answered opposing counsel's Special and Form Interrogatories, communications via extensive emails, and the filing of this Motion for Leave to File a First Amended Complaint all within a two-months’ time span; expects and intends full ventilation of this matter on the merits of it; Defendant's attorney seems to desire a constriction of Plaintiff’s right to assert a claim against all parties involved; prefers to ignore the other wrongdoers (Trader Joe's employees) who acted on behalf of Defendant in the wrongful conduct against Plaintiff; Trader Joe’s Company presently convolutes irrelevant issues, such as Worker's Compensation; Discovery Schedules; Changes in Counsel; Verifications, and Mind Reading of Plaintiff’s intentions, into this particular Motion for Leave to Amend.

Discovery on this case is in continuous progress. This schedule may be timely met during the Month of November; both Zeb Albert and Caroline Neufeld are employees of Trader Joe's; Plaintiff prays for leave to amend for the purpose of testing the Defendants' standing on this issue alone.

Defendant's counsel has been asked, several times, whether she (Nicole Vongchanglor) represents the individuals - Zeb Albert and/or Caroline Neufeld; she has answered the question in the negative; if the two individuals fail to acknowledge receipt of the Summons and Complaint, then a formal Process Service upon them, at their cost, shall be implemented upon granted leave to amend.

Defendant will not be prejudiced in granting leave to amend for the purpose of bringing in additional Defendants. Ms. Vongchanglor understands that Mr. Albert and Ms. Neufeld will be required to response to the charges; such concerns are points of time and effort, not particularly on prejudice; the facts are disputed. Therefore, it would not be a futile exercise to grant leave to amend.

The Court’s Conclusions

The discovery issues and the motion to amend are very distinct; they are not at this juncture interrelated; the motion should be granted; the Court should be proactive to assure the case is tried on the timelines set and the discovery is addressed. The new parties need to be served promptly. Plaintiff’s counsel’s suggestion that if the two individuals fail to acknowledge receipt of the Summons and Complaint, then a formal Process Service upon them, at their cost will be pursued; but the issue of who pays the costs of service is not an issue that should be addressed at this time and no legal authority has been provided at this time that would permit that procedure. These two new Defendants will be personally served with the Amended Complaint forthwith; timelines need to be set on the discovery issues.