1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 1

The court issues this amended order solely to correct a clerical error in the first sentence

of Part II of its May 4, 2006 order (Dkt. # 18). 

ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

J.C.,

Plaintiff,

v.

SOCIETY OF JESUS, OREGON

PROVINCE,

Defendant.

CASE NO. C05-1662JLR

AMENDED ORDER1

I. INTRODUCTION

This matter comes before the court on Plaintiff’s motion to amend the complaint to

add Seattle University as a Defendant (Dkt. # 11). The court has considered the parties’

briefs and supporting declarations, as well as their presentations at oral argument. For the

reasons stated below, the court DENIES the motion to amend. 

II. BACKGROUND & ANALYSIS

Although Plaintiff’s motion comes disguised as a routine motion to amend the

complaint by adding a new party, the impact of granting the motion will be a requirement

that the court remand this action to King County Superior Court. Plaintiff apparently

prefers the state forum, as he brought this action there originally on September 7, 2005 to

recover damages for alleged sexual abuse at the hands of a friar who worked for

Case 2:05-cv-01662-JLR Document 20 Filed 05/09/06 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER – 2

Defendant. Defendant, domiciled in Oregon, properly removed the action to this court in

October 2005 on the basis of diversity of citizenship. Plaintiff’s domicile is Washington.

Under 28 U.S.C. § 1447(e), the court has only two options when considering a

motion to amend that would add a non-diverse party in a removed action where the court

is exercising diversity jurisdiction. The court may either “deny joinder, or permit joinder

and remand the action to the State court.” Id. Thus, if the court grants the motion to

amend, and thus permits the joinder of Seattle University, the court has no choice but to

remand this action, as Seattle University and Plaintiff both have a Washington domicile.

Under Fed. R. Civ. P. 15(a) (“Rule 15”), a court should grant leave to amend

freely “when justice so requires.” Rule 15 allows for liberal amendment of pleadings,

and a court should grant a motion to amend absent “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, [or] futility of amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316

F.3d 1048, 1052 (9th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 185 (1962)). 

When a party seeks leave to amend in order to add a new party, the court considers both

the general principles of Rule 15 and the joinder provisions of Fed. R. Civ. P. 20. In this

case, the court notes that Plaintiff appears to have a basis under the standards of Rule 20

to add Seattle University as a party, and appears to have made a colorable showing that

its claim against Seattle University is not futile. 

The primary prejudice to the Defendant is that remanding this action to state court

will no doubt substantially delay the trial of this action. Defendant argues that the court

should also consider its choice of forum and the bias it will face in state court. Neither

the Defendant’s choice of forum nor the alleged bias of Washington courts is a proper

basis for a finding of prejudice.

Case 2:05-cv-01662-JLR Document 20 Filed 05/09/06 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER – 3

Were legal merit and potential prejudice the only considerations, the court might

grant the instant motion. However, the court must also consider “undue delay, bad faith,

or dilatory motive” on Plaintiff’s behalf. Eminence Capital, 316 F.3d at 1052.

In his moving papers, Plaintiff claimed that the information that led it to seek an

amendment was relatively new: 

During discovery in this case, plaintiffs have learned that certain officials

within Seattle University had knowledge of [the friar's] sexual abuse of

minors and that at the time Seattle University officials learned of the abuse,

they were mandatory reporters under [Washington law].”

Pltf.’s Mot. at 2 (emphasis added). 

In opposition to the motion, Defendant questioned this assertion. Plaintiff

responded with a declaration from counsel attaching a letter that provides a colorable

basis for its proposed claim against Seattle University. The letter, however, is much less

notable than the declaration that accompanied it. According to counsel for Plaintiff,

counsel did not acquire the letter “during discovery” as it initially represented, but rather

“during a pre-litigation exchange of documents.” Menely Decl. ¶ 2 (emphasis added). 

The declaration raises two concerns: that counsel for Plaintiff may have misled the court

about when it learned of evidence supporting claims against Seattle University; and that

Plaintiff knew of the evidence since at least September 2005, and therefore has waited

almost seven months before seeking leave to amend to join a new party.

The court held a hearing to inquire into these concerns. Counsel for Plaintiff

confirmed that Plaintiff has had the letter in question since before he filed his complaint

in state court. Counsel for Defendant elaborated and explained that counsel has had the

evidence since before a June 2005 pre-litigation mediation. Thus, Plaintiff (or his

counsel) has waited ten months before seeking leave to join Seattle University.

The court need not decide if Plaintiff’s counsel has sought to intentionally mislead

the court. Counsel explained at the hearing that the inconsistent representations to the

Case 2:05-cv-01662-JLR Document 20 Filed 05/09/06 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

In addition, Defendant apparently disclosed the letter a second time in its

December 2005 initial disclosures. This lends support to counsel’s assertion that it

learned of the evidence against Seattle University “during discovery,” although it does not

begin to explain how counsel failed to learn earlier of evidence in its possession since at

least June 2005.

ORDER – 4

court were unintentional, and that counsel did not realize the import of the evidence

supporting a claim against Seattle University until relatively recently.2

 The court need

not decide whether it accepts this explanation – even if it did, counsel was at best

inexcusably negligent in not bringing its claim against Seattle University much sooner. 

Under these circumstances, the court finds that Plaintiff has acted in bad faith and

unduly delayed in seeking to add Seattle University as a Defendant. The court finds that

it would not serve the interests of justice to reward counsel’s dilatory conduct, and that

the prejudice that Defendant would suffer is undue under these circumstances. The court

therefore denies leave to amend the complaint, and will not permit Plaintiff to join Seattle

University in this action.

III. CONCLUSION

For the foregoing reasons, the court DENIES Plaintiff’s motion for leave to file an

amended complaint. (Dkt. # 11). The court will award Defendant attorneys’ fees for the

time its counsel spent opposing this motion. The court directs counsel to meet and confer

to stipulate to an appropriate award. If they are unable to do so, Defendant may file a

motion for attorneys’ fees.

Dated this 9th day of May, 2006.

A 

JAMES L. ROBART

United States District Judge

Case 2:05-cv-01662-JLR Document 20 Filed 05/09/06 Page 4 of 4