Nonetheless, the Ninth Circuit has concluded that the relation back doctrine of Rule 15(c) does apply to PAGA claims. Milligan v. Am. Airlines, Inc., 577 Fed.Appx. 718, 719 (9th Cir. 2014). Defendants contend that the statute of limitations has expired on Plaintiff's PAGA claim, therefore, Plaintiff cannot add a new PAGA claim.
In Milligan v. American Airlines, Inc., the Ninth Circuit reversed as an abuse of discretion a district court's denial of leave to amend to add a ยง 226(a) PAGA claim when the complaint already had a ยง 226(e) class claim. 577 F. App'x 718, 718 (9th Cir. 2014).
Rule 15(c) of the Federal Rules of Civil Procedure, not state law "Doe" pleading practices, governs whether new defendants may be added and if so, whether the claims against them would relate back to the filing of the initial complaint. See Santana v. Holiday Inns, Inc., 686 F.2d 736, 740 (9th Cir. 1982); Milligan v. Am. Airlines, Inc., 577 F. App'x 718, 719 (9th Cir. 2014) (holding in the context of a state law claim that "[c]ontrary to the district court's decision, Federal Rule of Civil Procedure 15(c) controls, not [California law]"). Rule 15(c)(1) states, in relevant part: An amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back;
The mere fact that the information was missing from the wage statement is not a cognizable injury. See id. at 1142-43; accord Milligan v. Am. Airlines, Inc., 577 Fed. App'x. 718, 719 (9th Cir. 2014); Johnson v. Serenity Transportation, Inc., 141 F. Supp. 3d 974, 1004 (N.D. Cal. 2015).
Id., 2015 WL 326202 at *7 (citing Milligan v. Am. Airlines, Inc., 577 Fed. Appx 718, 719 (9th Cir.2014)). In relevant part, Rule 15 provides that "an amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set outโor attempted to be set outโin the original pleading."
A claim arises "out of the same conduct, transaction, or occurrence" if it "share[s] a common core of operative facts such that the plaintiff will rely on the same evidence to prove each claim." Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008) (citation and internal quotation marks omitted); see also Milligan v. Am. Airlines, Inc., 577 F. App'x 718, 719 (9th Cir. 2014) (mem.) (reversing district court's denial of leave to amend a claim that "share[d] a common core of operative facts" with claims originally pled); Frontline Processing Corp. v. Barack Ferrazzano Perlman & NagelbergLLP, 571 F. App'x 586, 587 (9th Cir. 2014) (mem.
In Santana, the Ninth Circuit held that if the relation back provision of Rule 15(c) conflicted with state substantive law, "[Supreme Court precedent] command[ed] the application of Rule 15(c)." Id. (citing Hanna v. Plumer, 380 U.S. 460 (1965)); see also Richardson v. HRHH Gaming Senior Mezz, LLC, ___ F.Supp.3d ___, 2015 WL 1691972, *6 (D. Nev. Apr. 14, 2015) (applying Rule 15(c) in a diversity action); Sarkizi v. Graham Packaging Co., No. 1:13-CV-1435 AWI SKO, 2014 WL 6090417, *5 (E.D. Cal. Nov. 13, 2014) (same); see also Milligan v. Am. Airlines, Inc., 577 Fed. Appx. 718, 719 (9th Cir. June 5, 2014) (Unpub. Disp.) (holding in the context of a state law claim that "[c]ontrary to the district court's decision, Federal Rule of Civil Procedure 15(c) controls, not [California law]").
The mere fact that the information was missing from the wage statement is not a cognizable injury. See id. at 1142โ43, 122 Cal.Rptr.3d 174 (noting that the "deprivation of [the] information, standing alone is not a cognizable injury") (internal quotation marks, citation, and footnote omitted); see also Milligan v. Am. Airlines, Inc. , 577 Fed.Appx. 718, 719 (9th Cir.2014) (citation omitted) ("[T]he injury requirement... cannot be satisfied simply because one of the nine itemized requirements in [Section 226 ] is missing from a wage statement."). However, "the types of injuries on which a Section 226 claim may be premised include โthe possibility of not being paid overtime, employee confusion over whether they received all wages owed them, difficulty and expense involved in reconstructing pay records, and forcing employees to make mathematical computations to analyze whether the wages paid in fact compensated them for all hours worked."
The Ninth Circuit has held that Federal Rule of Civil Procedure 15(c) controls relation back for PAGA claims not California procedure. Milligan v. Am. Airlines, Inc., 577 Fed. Appx 718, 719 (9th Cir. 2014). Rule 15(c) states "an amendment to a pleading relates back to the date of the original pleading when... the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading."
Because the inquiry is objective, relying on whether a "reasonable person would be able to readily ascertain the information" (Lab. Code, ยง 226, subd. (e)(2)(C)), and not on whether any particular plaintiff could have, the inquiry now appears to be one easily amenable to common proof in a class action. (Lubin, at p. 959.) Allstate argues against this conclusion, stating that the injury inquiry is still a subjective one even after the 2013 amendment, by relying on Milligan v. American Airlines, Inc. (9th Cir. 2014) 577 Fed.Appx. 718, 719, an unpublished 9th Circuit case. Unpublished federal authority has no precedential value, but may be cited as persuasive.