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Tammy Keczmer v. Basic American

July 29, 2011


The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge



Plaintiff Tammy Keczmer's motion to amend her complaint is currently pending before the Court. (Dkt. 15.) The Court conducted a hearing on July 12, 2011, and took the matter under advisement at the conclusion of the hearing. After carefully reviewing the record, the parties' memoranda, and their legal arguments, the Court will grant Plaintiff's motion to amend.


Plaintiff Tammy Keczmer ("Keczmer") filed a complaint against her employer, Defendant Basic American, Inc., ("Basic"), on December 7, 2010. She alleges violation of her rights under the Family and Medical Leave Act ("FMLA"), and seeks damages for front pay, back pay, and benefits under the Act. (Dkt. 1.) Keczmer claims that on February 12, 2010, Basic wrongfully terminated her employment effective February 8, 2010, for the stated reason that Keczmer was absent without approved leave. However, Keczmer alleges that her supervisor sent her home from work on February 2, 2010, and knew Keczmer's absences on February 3, 6, 7, and 8 were due to a serious health condition requiring medical treatment. Keczmer claims she provided notice of her medical condition in compliance with the FMLA, including providing Basic with a doctor's note on February 12, 2010. Keczmer claims that, despite such notice, Basic terminated Keczmer's employment due to her four absences from work on February 3, 6, 7, and 8.

On January 27, 2011, the Court entered a case management order setting forth pre-trial deadlines, including a deadline of March 4, 2011, by which to file amendments to the pleadings. Keczmer filed her motion to amend on May 16, 2011, proposing to add an additional count for breach of contract. In the proposed amended complaint, Keczmer alleges that Basic adopted an Attendance and Leave Policy (the "Policy") in accordance with a Collective Bargaining Agreement ("CBA") between Basic and the International Brotherhood of Teamsters Local 983, a union of which Keczmer is a member. Keczmer alleges that Basic terminated Keczmer's employment in violation of the Policy. Keczmer seeks damages under her breach of contract theory in the form of both back and front pay, and loss of benefits. (Dkt. 15-1.)

Basic opposes the motion on the grounds that the proposed amendment is futile under Fed. R. Civ. P. 15(a) because the breach of contract claim is preempted by Section 301 of the Labor Management Relations Act, ("LMRA"), 29 U.S.C. § 185.*fn1 Basic contends that the breach of contract claim is inextricably intertwined with the terms of the existing CBA, and therefore preempted. Further, Basic asserts that Keczmer cannot maintain a claim under the LMRA because she did not allege and cannot demonstrate compliance with the grievance procedures mandated by the CBA between Basic and the Union, a necessary prerequisite to a Section 301 claim.

Keczmer disagrees that Section 301 preempts her breach of contract claim, arguing that the CBA does not govern Basic's Policy nor does it reference an attendance and leave policy, and therefore the Policy exists separate and apart from the CBA. (Reply at 2, Dkt. 18.) Keczmer contends that the terms of the Policy create a contract between Basic and its employees, and therefore she should be permitted to amend her Complaint to assert a claim for breach of the Policy.


1. Legal Standards Under Rule 15(a)

Fed. R. Civ. P. 15(a) provides that amendments to pleadings should be liberally granted in the interests of justice. The rule states: "[A] party may amend the party's pleadings only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). However, the right to amend is not absolute. When determining whether amendments should be granted, the Court should consider " 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 amendment, futility of amendment, etc. . . ." Foman v. Davis, 371 U.S. 178, 182 (1962). Prejudice to the opposing party is the most important factor for consideration. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) citing Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 330-31 (1971).

In the instant case, Basic does not claim prejudice, bad faith, undue delay, or dilatory motive. Further, Basic expressly represents that it does not oppose Keczmer's motion on the grounds that it was filed untimely contrary to the deadline set forth in the Case Management Order. Basic's opposition is premised solely on the grounds that the amendment would be futile because the Policy cannot be interpreted without reference to the CBA, thereby mandating application of Section 301 of the LMRA and preemptingKeczmer's claim. Therefore, a closer analysis of the Policy's language and the CBA is required.

2. The Terms of the CBA and the Policy

The CBA does not expressly reference an attendance or leave policy. (Second Aff. of Counsel Ex. A, Dkt. 18-1.) However, the CBA infers in several of its provisions that one may be created by Basic's management. The CBA covers all of Basic's employees. (Id. Ex. A ¶ 4.) Under the CBA's terms, Basic must reduce "house rules or working rules or regulations of the company affecting general conduct of employees . . . to writing in a form easily read and understood and . . . permanently post[] [a copy] in conspicuous places throughout the plant. A copy of the house rules shall be sent to the Union." (Id. Ex. A Article II ¶ 4.) Basic is permitted to "discharge or suspend any employee for unsatisfactory work, violation of house rules, or other just cause." (Article II ¶ 7.) If a serious problem arises that warrants discharge or suspension without prior notice, Basic is permitted to exercise its right to discharge an employee provided it ...

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