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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

MELISSA NYLAND, )

)

Plaintiff, ) 2:15-cv-01670 JWS

)

vs. ) ORDER AND OPINION

)

ROOKE, LLC, d/b/a RIOT )

HOSPITALITY GROUP, ) [Re: Motions at Dockets 19 & 26]

)

Defendant. )

)

I. MOTIONS PRESENTED

At docket 19 Plaintiff Melissa Nyland (“Plaintiff”) filed a motion to amend.

Defendant Rooke, LLC, d/b/a Riot Hospitality Group (“Rooke” or “Defendant”)

responded at docket 21. Plaintiff’s reply is at docket 22. Defendant subsequently filed

a “Notice of Errata in Supplement to its Response in Opposition to Plaintiff’s Motion to

Amend” at docket 23. Plaintiff filed a motion to strike the notice at docket 26, and

Defendant responded at docket 27. Oral argument was not requested in relation to

either motion, and argument would not be of assistance to the court.

II. BACKGROUND

Plaintiff alleges she worked as a cocktail server at a restaurant, El Hefe Super

Macho Taqueria (“El Hefe”), in Scottsdale, Arizona, and that Rooke was her employer

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because it “owns and operates” El Hefe.1 Plaintiff brings two Title VII sexual

harassment claims against Rooke. Specifically, Plaintiff alleges she engaged in a

sexual relationship with El Hefe’s General Manager, Parker Haleen (“Haleen”), and that

Haleen used the relationship to manipulate the terms and conditions of her employment

and “demonstrated that her continued employment was conditioned upon the prosperity

and existence of their sexual relationship.”2 She alleges that she was ultimately fired

when Haleen believed she would no longer continue a sexual relationship with him.

3

 

The complaint was filed in late August of 2015. In November, before the court

filed its scheduling and planning order, and therefore before any deadlines had been

set or any discovery had taken place, Defendant filed a motion for summary judgment. 

In the motion, Defendant argued that summary judgment is warranted because it is not

Plaintiff’s employer, but rather is only one of several members of the limited liability

corporation, 4425 Saddlebag, LLC (“Saddlebag”), which is the entity that actually owns

El Hefe. Plaintiff objected to the motion under Rule 56(d) and argued that she needed

adequate time to develop her theory of the case as it relates to which entity can be

considered her employer. She also indicated that she planned on filing a motion to

amend to include Saddlebag as a defendant. 

Plaintiff then filed the motion to amend at docket 19. In the motion, she seeks to

add four corporate defendants to her lawsuit: Saddlebag; JW Bar, LLC; Milo

Companies, LLC; and MRM Hospitality, LLC. She alleges that these four entities, along

with Defendant, operate as a “joint employer” or as an “integrated enterprise” in that

they all operate under the trade name “Riot Hospitality Group” and that they represent

themselves to the public as one entity and “perform activities through unified operations

1Doc. 1 at ¶ 4.

2Doc. 1 at ¶¶ 15-18.

3Doc. 1 at ¶¶ 22-23.

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and common control.”4 She alleges that Defendant and the four proposed corporate

defendants all had the authority to hire, fire, or discipline her or otherwise control her

work environment. Defendant opposes the inclusion of three of the proposed corporate

defendants, arguing that they could not have been her employer and thus any claims

against them would be futile. 

Plaintiff’s proposed amended complaint also seeks to bring a separate cause of

action against an individual defendant, Ryan Hibbert (“Hibbert”), for assault and battery. 

Plaintiff alleges that Hibbert is the part-owner and CEO of Rooke and the other four

proposed corporate defendants. She further alleges that on January 10, 2016, nearly

eight months after she had been terminated and around four months after this litigation

had commenced, Hibbert intentionally threw alcohol at her and berated her during a

late-night party and that his conduct was designed to punish her for filing the lawsuit

and to intimidate her in regard to the lawsuit.5 Defendant opposes the addition of such

a claim, arguing that it does not stem from the same case or controversy, and thus the

court does not have supplemental jurisdiction over it. In reply, Plaintiff argues that

Hibbert is part-owner of Rooke and so his assault against Plaintiff is related to the

controversy at hand. 

Defendant filed a “Notice of Errata in Supplement to its Response in Opposition

to Plaintiff’s Motion to Amend,” wherein it sought to clarify that it was not admitting that

Hibbert was an owner and CEO of Rooke, as Plaintiff suggested in her reply. Plaintiff

filed a motion to strike the notice. 

III. STANDARD OF REVIEW

Under Rule 15(a), if outside the allotted time in which to file an amendment as a

matter of course, “a party may amend its pleading only with the opposing party’s written

4Doc. 19-1 at p. 3, ¶ 11.

5Doc. 19-1 at p. 9, ¶¶ 59-61.

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consent or the court’s leave.”6 “The court should freely give leave when justice so

requires.”7 Rule 15 provides for a very liberal amendment policy.

8

 The decision to

permit or deny a motion for leave to amend rests within the sound discretion of the trial

court.9 In deciding whether to grant leave to amend under Rule 15(a), courts generally

consider the following factors: undue delay, bad faith by the moving party, prejudice to

the opposing party, futility of amendment, and whether the party has previously

amended his pleadings.

10

 “Generally, this determination should be performed with all

inferences in favor of granting the motion.”11 The party opposing amendment bears the

burden of demonstrating a permissible reason for denying the motion to amend.12

IV. DISCUSSION

A. Additional corporate defendants

Given that Plaintiff filed her motion to amend within the allotted time frame set by

the court and given the liberal application of Rule 15, the court concludes that Plaintiff

can amend her complaint to include the additional corporate defendants. There has

been no showing of delay or bad faith on her part and no showing of prejudice to

Defendant given that the case is in the early litigation phase. Moreover, the court

cannot conclude from the proposed amended complaint that her claim against the

6Fed. R. Civ. P. 15(a)(2).

7

Id.

8Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001).

9See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185-86 (9th Cir.1987).

10See Foman v. Davis, 371 U.S. 178, 182 (1962); Bonin v. Calderon, 59 F.3d 815, 845

(9th Cir.1995).

11Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir.1999).

12DCD Programs, 833 F.2d at 187; Richardson v. United States, 841 F.2d 993, 999 (9th

Cir.1988) (stating that leave to amend should be freely given unless the opposing party makes

“an affirmative showing of either prejudice or bad faith”).

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additional corporate defendants would be futile. It contains sufficient facts that if

accepted as true state a plausible claim.

13

 

B. Assault and battery claim

Defendant argues that the proposed amended complaint should not be allowed

to the extent it includes a state law claim against Hibbert for assault and battery. It

argues that such a claim would be futile because the court does not have supplemental

jurisdiction over such a claim. The court can exercise supplemental jurisdiction over a

state law claim if that claim is part of the “same case or controversy” as the federal

claim.

14

 A state law claim is part of the same case or controversy as the federal claim

when it “derive[s] from a common nucleus of operative fact.”15

 

Here, it is apparent that Plaintiff’s Title VII claims and the state law claim against

Hibbert do not share a common nucleus of operative fact. The federal sexual

harassment claims are premised upon the allegation that Plaintiff’s manager at El Hefe

conditioned her employment upon a sexual relationship between them and otherwise

used their sexual relationship to manipulate the terms and conditions of her

employment. The basis for the state assault claim is not factually related to Plaintiff’s

sexual relationship with the manager at El Hefe. Rather, it is premised upon an incident

that 1) occurred eight months after Plaintiff stopped working at El Hefe and after she

filed the original complaint; 2) did not involve her former manager; and 3) did not occur

13See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (noting that the

proper test to be applied when determining the legal sufficiency of a proposed amendment to a

complaint is the same one used when considering the legal sufficiency of a pleading challenged

under Rule 12(b)(6)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to

relief that is plausible on its face.’”(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007))).

1428 U.S.C. § 1367(a); see also Trs. of Constr. Indus. & Laborers Health & Welfare Tr. v.

Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925 (9th Cir. 2003).

15Desert Valley, 333 F.3d at 925 (quoting Finley v. United States, 490 U.S. 545, 549

(1989)) (internal quotation marks omitted).

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at El Hefe. It is clear that the sexual harassment alleged in her Title VII claim does not

rely in any way upon the alleged assault by Hibbert. Furthermore, the alleged drinkthrowing incident is not similar in nature to the allegations underlying the Title VII

claims. That is, Plaintiff’s Title VII claims are unaffected by the exclusion of the assault

claim. Even if Hibbert is a part-owner of Rooke or another one of the proposed

corporate defendants or even if he may have been motivated to throw a drink and

berate Plaintiff because she filed a complaint, as alleged, the court concludes that this

association to the underlying federal litigation is insufficient to create a sufficient factual

connection between the federal and state claims to support supplemental jurisdiction. 

V. CONCLUSION

Based on the preceding discussion, Plaintiff’s motion to amend at docket 19 is

GRANTED IN PART AND DENIED IN PART. The proposed amended complaint is

allowed to the extent that it includes additional corporate defendants, but is denied to

the extent it includes a state law claim for assault and battery against Hibbert. Plaintiff

is directed to file an amended complaint in compliance with this order.

Plaintiff’s motion to strike at docket 26 is DENIED as moot.

DATED this 4th day of March 2016.

 /s/ JOHN W. SEDWICK

SENIOR UNITED STATES DISTRICT JUDGE

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