Opinion
CV-02-1145-ST.
November 27, 2002
OPINION AND ORDER
INTRODUCTION
Plaintiff, Sharil A. Knutson ("Knutson"), originally filed this action against defendant, Winco Foods, Inc. ("Winco"), on or about July 18, 2002, in Multnomah County Circuit Court for the State of Oregon, Sharil A. Knutson v. Winco Foods, Inc., Case No. 0207-07077. On August 23, 2002, Winco filed a Notice of Removal to this court. Knutson alleges that Winco failed to promote her from a part-time to a full-time employee because of her disability in violation of 42 U.S.C. § 12112 (the Americans with Disabilities Act) ("ADA") (First Claim for Relief) and ORS 659.436, the Oregon counterpart (Second Claim for Relief). Accordingly, she is seeking $83,000 in back wages, $200,000 in compensatory damages, pre- and post-judgment interest, and attorney fees, costs and disbursements.
42 U.S.C. § 12112(a) states in relevant part: "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."
In 2001, the Oregon State legislature renumbered ORS 659.436 to ORS § 659A.112(1), which states in relevant part: "It is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because an otherwise qualified person is a disabled person."
This court has original jurisdiction over the federal statutory claim under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claim under 28 U.S.C. § 1367. Knutson's Motion to Amend (docket #11) is now before the court. For the reasons that follow, the Motion is GRANTED.
ANALYSIS
Knutson seeks to amend her Complaint to include a claim for punitive damages, which is allowed under 42 U.S.C. § 1981a(a)(2). Because Knutson originally filed her Complaint in state court, she complied with Oregon law that prohibits the pleading of punitive damages in the initial complaint. Now that this case has been removed to federal court, she seeks leave to add punitive damages.
FRCP 15(a) provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." However, after a responsive pleading has been filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Importantly, "[a] motion to dismiss is not a `responsive pleading' within the meaning of the Rule. Neither the filing nor granting of such a motion before answer terminates the right to amend; an order of dismissal denying leave to amend at that stage is improper." United States ex rel. Saaf v. Lehman Brothers, 123 F.3d 1307, 1308 (9th Cir 1997), quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir 1995) (internal quotations omitted).
Winco has yet to file a responsive pleading to the Complaint. Thus, Knutson retains the right to amend the pleading as "a matter of course" and no leave of court is necessary. However, since Knutson has requested leave of court, her Motion to Amend is granted.
ORDER
For the reasons stated above, Knutson's Motion to Amend (docket #11) to add a claim for punitive damages is GRANTED. Knutson shall file her Amended Complaint within ten days after a district court judge enters an Order on this court's Findings and Recommendations regarding Winco's Motion to Dismiss (docket #6).