Case 8:10-cv-01392-CJC -RNB Document 25 Filed 02/16/11 Page 1 of 3 Page ID #:434

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SACV 10-01392-CJC(RNBx) Date: February 16, 2011

Title: MARTIN HENSHAW ET AL. V. HOME DEPOT U.S.A., INC.

PRESENT:

HONORABLE CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

Michelle Urie N/A

Deputy Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:

None Present None Present

PROCEEDINGS: (IN CHAMBERS) ORDER GRANTING PLAINTIFF’S

MOTION FOR LEAVE TO AMEND [filed 1/19/11]

Having read and considered the papers presented by the parties, the Court finds
this matter appropriate for disposition without a hearing. See FED. R. CIV. P. 78; LOCAL
RULE 7-15. Accordingly, the hearing set for February 28, 2011 at 1:30 p.m. is hereby
vacated and off calendar.

Introduction and Background

Plaintiffs Martin Henshaw and Vern Souza (collectively “Plaintiffs”) bring this
putative class action against Defendant Home Depot U.S.A., Inc. (“Home Depot”) and
fictitious defendants, alleging violations of the California Labor Code and the California
Unfair Competition Law (“UCL”). Specifically, Plaintiffs allege that Home Depot did
not compensate them for their accrued, unused vacation time at the time that Plaintiffs
ended their employment. Plaintiffs initially filed this action on August 15, 2010, and
Home Depot timely removed the case to federal court on September 15, 2010. Plaintiffs
now seek leave to amend their original Complaint to add a cause of action under the
Private Attorney General Act (“PAGA”), Cal. Lab. Code § 2699, which allows Plaintiffs
to pursue civil penalties against Home Depot on behalf of the State after Plaintiffs have
exhausted their administrative remedies with the State. Because Home Depot has not
shown that it will be prejudiced by allowing Plaintiffs to amend their Complaint early in
the litigation, Plaintiffs’ motion for leave to amend is GRANTED.
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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SACV 10-01392-CJC(RNBx) Date: February 16, 2011

Page 2

Analysis

After the time for amending a pleading as a matter of course has lapsed, a party
“may only amend a complaint with the opposing party’s written consent or the court’s
leave,” which should be “freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2).
The policy favoring amendment is to be applied with “extreme liberality.” Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). The party opposing
the motion has the burden to convince the court that justice requires denial. DCD
Programs, Ltd. v. Leighton, 833 F.2d 183, 186–87 (9th Cir. 1987). “In the absence of
any apparent or declared reason—such as 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,
futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely
given.’” Eminence Capital, LLC, 316 F.3d at 1052 (quoting Foman v. Davis, 371 U.S.
178, 182 (1962)). Among these factors, prejudice to the opposing party is the
“touchstone of the inquiry under Rule 15(a)” and therefore “carries the greatest weight.”
Id. “Delay, by itself, is insufficient to justify denial of leave to amend.” DCD Programs,
Ltd., 833 F.2d at 186. The clear weight of these factors favors granting leave to amend in
this case.

Home Depot has not shown that it will be prejudiced by granting the requested
leave to amend. Plaintiffs only filed their complaint five months ago in August 2010, and
the parties only began to engage in discovery based on the original Complaint in mid-
January 2011. (Bhowmik Decl. ¶ 6.) Plaintiffs are not seeking to add any substantive
allegations to the Complaint, but rather seek only to add an additional remedy in the form
of civil penalties. Plaintiffs’ PAGA claim is based on the violations of the California
Labor Code that they already alleged in their original Complaint. (Bhowmik Decl. Ex. 1
¶¶ 46–49.). Nor has Home Depot shown that Plaintiffs unduly delayed or engaged in bad
faith or dilatory tactics by waiting until now to amend the Complaint. Plaintiffs filed the
requisite notice of their suit to the California Labor and Workforce Development Agency
on November 16, 2010. (Bhowmik Decl. ¶ 4.) On January 6, 2011, the California Labor
and Workforce Development Agency notified Plaintiffs that it does not intend to pursue
Plaintiffs’ allegations, (id. ¶ 5), allowing Plaintiffs to bring their PAGA claim. Instead,
Home Depot appears to base its entire opposition to Plaintiffs’ motion on the grounds that
allowing Plaintiffs’ amendment would be futile because Plaintiffs have not alleged
sufficient facts to state a PAGA claim under Federal Rule of Civil Procedure 8. (Def.’s
Mem. P. &. A. Opp’n Mot. Am. at 3–4.) Specifically, Home Depot asserts that
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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. SACV 10-01392-CJC(RNBx) Date: February 16, 2011

Page 3

Plaintiffs’ PAGA claim is futile because Plaintiffs have not alleged any facts that show
that Home Depot had an illegal policy of not compensating employees for unused
vacation or that any other employees were similarly aggrieved. (Id.) However, a
proposed amendment is only “futile” where no set of facts can be proved under the
amendment that would constitute a valid claim. Miller v. Rykoff-Sexton, Inc., 845 F.2d
209, 214 (9th Cir. 1988). Home Depot has not made any such showing here. Whether
Plaintiffs have sufficiently alleged a basis for showing that Home Depot violated the
California Labor Code or whether Plaintiffs have sufficiently alleged their class
allegations are issues best resolved by a motion to dismiss or a motion for class
certification. Home Depot may renew the arguments it raises in its opposition in a formal
motion to dismiss.

Conclusion

For the foregoing reasons, Plaintiffs’ motion for leave to amend their Complaint is
GRANTED. Plaintiffs shall file their First Amended Complaint within seven days from
the date of this minute order. Home Depot shall have twenty days thereafter to file its
responsive pleading.

mkyc

MINUTES FORM 11
CIVIL-GEN Initials of Deputy Clerk MU