Opinion
No. CV 07-01337-PHX-EHC.
June 9, 2008
ORDER
Before the Court is Defendant's Motion for a More Definite Statement. (Dkt. 8). Plaintiff filed a complaint against Defendant John E. Potter, Postmaster General, United States Postal Service ("Defendant Potter") on July 11, 2007, which was amended on November 6, 2007, alleging employment discrimination and retaliation based on disability and age in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 and the Age and Discrimination and Employment Act of 1967, 29 U.S.C. § 623. (Dkts. 4, 5). In response to Defendant's Motion for a More Definite Statement, Plaintiff requests leave to file a Second Amended Complaint (Dkt. 9).
Defendant does not object to Plaintiff's filing of a Second Amended Complaint, which cures the deficiencies of the First Amended Complaint (Dkt 10). However, Defendant contends that in Plaintiff's Memorandum of Points and Authorities for his Request for Leave to File a Second Amended Complaint, Plaintiff seeks to expand his Proposed Second Amended Complaint beyond the document itself. Specifically, Defendant contends that Plaintiff, in his Memorandum of Points and Authorities, attempts to incorporate other events encompassed in EEO complaints not filed in this Court as well as additional claims from three future EEO complaints that have yet to reach an administrative conclusion (Dkt. 10, ¶ 2). Defendant requests that the Court permit Plaintiff to file his Second Amended Complaint but limit Plaintiff's causes of actions to the allegations set forth therein. (Dkt 10, ¶ 9).
The parties do not define EEO, but the Court takes judicial notice that EEO refers to the Equal Employment Opportunity Commission.
Leave to amend shall be freely granted when justice requires. See Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178 (1962). A district court, in its discretion, may deny leave to amend where it determines that there has been a showing of undue delay, bad faith on the part of the movant, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, or futility of the proposed amendment. Foman, 371 U.S. at 182. Because the Defendant does not object to Plaintiff's request for leave to amend, Plaintiff's Motion for Leave to File Second Amended Complaint will be granted.
Nonetheless, Plaintiff cannot expand the scope of his claims by language in his Memorandum of Points and Authorities. Plaintiff's complaint must contain "a short and plain statement of [his] claim[s] showing that [he] is entitled to relief." Fed.R.Civ.P. 8(a). The complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Furthermore, the Ninth Circuit has determined that federal employees who allege employment discrimination must first exhaust available administrative remedies. See Vinieratos v. United States, 939 F.2d 762, 772 (9th Cir. 1990) (holding that failure to exhaust administrative remedies bars any claim under the Rehabilitation Act). Thus, Plaintiff cannot bring EEO complaints that have not reached an administrative conclusion and his attempt to include unexhausted claims in the current lawsuit is impermissible.
Accordingly,
IT IS ORDERED granting Plaintiff's Motion for Leave to File Second Amended Complaint (Dkt. 9). The Clerk shall file the Second Amended Complaint lodged at Docket No. 9, exhibit 2.
IT IS FURTHER ORDERED denying Defendant's Motion for a More Definite Statement (Dkt. 8) as moot.