“A 2 need to reopen discovery and therefore delay the proceedings supports a district court’s finding of 3 prejudice . . . .”
How later courts described this case
- “A 2 need to reopen discovery and therefore delay the proceedings supports a district court’s finding of 3 prejudice . . . .”
- “[The Ninth Circuit] defer[s] to the district court’s judgment about when delay 20 becomes unreasonable because it is in the best position to determine what period of delay can be 21 endured . . . .”
- “The timing of the motion, after the parties had conducted discovery and a pending 22 summary judgment motion had been fully briefed, weighs heavily against allowing leave. A 23 motion for leave to amend is not a vehicle to circumvent summary judgment.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 CARLA ROUNDS, No. 1:20-cv-00170-DAD-CKD
12 Plaintiff,
13 v. ORDER DENYING PLAINTIFF’S MOTION
FOR CLARIFICATION
14 THE BOARD OF TRUSTEES OF THE
CALIFORNIA STATE UNIVERSITY, (Doc. No. 85)
15
Defendant.
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18 This matter is before the court on plaintiff’s motion for clarification filed on April 10,
19 2025. (Doc. No. 85.) In the pending motion, plaintiff seeks clarification of the previously
20 assigned district judge’s April 20, 2023 order granting defendant’s motion to dismiss. (Doc. No.
21 85-1 at 1.) The motion for clarification was taken under submission on the papers pursuant to
22 Local Rule 230(g). (Doc. No. 87.) For the reasons explained below, plaintiff’s motion will be
23 denied.
24 BACKGROUND
25 The parties are well familiar with the entire background of this long-litigated case.
26 Accordingly, the court will not recount it here and instead incorporates by reference the
27 background section of the court’s September 27, 2024 order granting partial summary judgment
28 in favor of defendant Board of Trustees of the California State University (“defendant”). (Doc.
1 No. 81.) The following factual and procedural background is particularly relevant to resolution of
2 the pending motion.
3 On December 16, 2019, plaintiff Carla Rounds filed the complaint initiating this
4 employment discrimination and retaliation action against defendant, her former employer. (Doc.
5 No. 1 at 1.) On November 17, 2022, plaintiff filed her operative first amended complaint
6 (“FAC”). (Doc. No. 31.) On December 8, 2022, defendant filed a motion to dismiss three of the
7 ten claims brought by plaintiff in her FAC, namely, plaintiff’s eighth claim for wrongful
8 termination/constructive discharge, ninth claim for conversion, and tenth claim for negligence.
9 (Doc. No. 33.) In its motion to dismiss, defendant argued that these three claims were barred by
10 California’s Government Tort Claims Act and that it was entitled to sovereign immunity under
11 the Eleventh Amendment. (Id.) In plaintiff’s opposition to defendant’s motion to dismiss, which
12 contained only a few sentences, plaintiff requested leave to amend her ninth and tenth claims.
13 (Doc. No. 41 at 2.) As to her eighth claim for “wrongful termination/constructive discharge,”
14 plaintiff “agreed to withdraw [it]” and requested leave to “modify the fifth claim [for
15 whistleblower retaliation in violation of California Labor Code § 1102.5] to include constructive
16 discharge.” (Id.) In reply, defendant stated that it did not oppose plaintiff’s request to dismiss her
17 eighth claim and to amend her fifth claim but stated that it “reserve[d] the right to seek dismissal
18 of that claim after Plaintiff amends.” (Doc. No. 44 at 5.)
19 On April 20, 2023, the previously assigned district judge issued an order granting
20 defendant’s motion to dismiss. (Doc. No. 49.) Plaintiff’s eighth, ninth, and tenth claims were
21 dismissed, and the court granted plaintiff leave to amend only as to her fifth cause of action “to
22 include a constructive discharge theory.” (Doc. No. 49 at 9.) The court’s order stated that should
23 plaintiff fail “to timely file an amended complaint, then leave to amend shall be considered
24 automatically withdrawn without further order from the Court, and Defendant shall file an answer
25 within twenty-one (21) days of service of this order.” (Id.) Plaintiff failed to amend her FAC,
26 and accordingly, on May 12, 2023, defendant filed its answer. (Doc. No. 52.)
27 On September 15, 2023, defendant filed a motion seeking summary judgment in its favor
28 as to all of plaintiff’s claims, including plaintiff’s fifth claim for whistleblower retaliation in
1 violation of California Labor Code § 1102.5. (Doc. No. 56-1 at 27–29.)1 Defendant noted that
2 several of plaintiff’s claims require evidence that she suffered an adverse employment action and
3 argued that because she did not suffer any such action, it was entitled to summary judgment in its
4 favor as to several of her claims. (Doc. No. 56-1 at 18.) In her opposition and cross-motion for
5 summary judgment, plaintiff listed, without citation to any evidence, numerous actions that she
6 purported constituted adverse employment actions, including her placement on paid
7 administrative leave (“PAL”) and her constructive discharge. (Doc. No. 74 at 28–29, 32–33, 35.)
8 In the court’s order resolving the parties’ cross-motions for summary judgment, the court found
9 that “the only adverse employment action that plaintiff ha[d] substantiated with evidence is her
10 placement on PAL and corresponding inability to access trainings and assignments while on
11 PAL.” (Doc. No. 81 at 38.) The court rejected plaintiff’s argument that “she suffered the adverse
12 employment action of being ‘constructively discharged,’” noting that “plaintiff’s theory of
13 constructive discharge was previously dismissed (Doc. No. 49 at 5–6) and no constructive
14 discharge theory or claim remains in this case.” (Doc. No. 81 at 15.) Ultimately, the court
15 granted summary judgment in defendant’s favor on several of plaintiff’s claims but denied
16 summary judgment as to plaintiff’s fifth and seventh claims for whistleblower and First
17 Amendment retaliation predicated on her March 2019 written complaint detailing workplace
18 policy violations and her placement and retention on PAL. (Id. at 53.)
19 On April 8, 2025, over six months after the court issued its order resolving the parties’
20 cross-motions for summary judgment, plaintiff filed the pending motion for clarification. (Doc.
21 Nos. 83, 85.) In her pending motion, plaintiff seeks clarification of the previously assigned
22 district judge’s April 20, 2023 order granting defendant’s motion to dismiss. (Doc. No. 85-1 at
23 1.) Specifically, plaintiff states that her counsel “was not aware that the order on the motion to
24 dismiss[] dismissed the constructive discharge claim, or that it would be dismissed if the
25 complaint was not amended” and argues that “the constructive discharge claim of the [FAC] was
26 dismissed in error.” (Id. at 5.) Plaintiff argues that even “[t]hough the Court dismissed the 8th
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28 1 On September 13, 2023, this case was reassigned to the undersigned. (Doc. No. 55.)
1 claim, the constructive discharge claim facts still exist by virtue of” other factual allegations and
2 the fact that her fifth claim incorporated by reference all preceding allegations in her FAC. (Id. at
3 5–6.) Plaintiff also states that if “the Court believes that the constructive discharge claim has
4 been dismissed, Plaintiff requests leave to amend the FAC to include the constructive discharge
5 claim” and that her failure to do so previously was “inadvertent, and excusable neglect.” (Id. at
6 8.)
7 In opposition, defendant argues that plaintiff’s motion is procedurally improper, untimely,
8 and baseless. (Doc. No. 86 at 6.) Defendant first observes that plaintiff has not cited any legal
9 authority supporting her request for relief, and that if she seeks reconsideration of the April 2023
10 order, she has not met the applicable standards governing consideration of such a motion. (Id.)
11 Defendant also argues that the court’s April 2023 order was “unambiguous and clear” and that
12 plaintiff is seeking “to revive a defective claim that the Court dismissed two years ago, and that
13 Plaintiff effectively abandoned.” (Id.) Defendant explains that “[t]he operative pleading in this
14 matter is Plaintiff’s [FAC] following the Order Granting Motion to Dismiss,” and in that April
15 2023 order “the Court dismissed Plaintiff’s constructive discharge claim” and “Plaintiff chose to
16 not file a second amended complaint.” (Id. at 12.) It argues that “[p]laintiff’s requested relief
17 seeking a long-delayed ‘clarification’ of the Court’s Order Granting Motion to Dismiss is an
18 improper attempt to end-run the Court’s ruling on summary judgment that significantly narrowed
19 her case.” (Id.) Finally, defendant urges that plaintiff’s request for leave to amend her FAC
20 should be denied, arguing that plaintiff “sat on her hands,” that counsel for plaintiff has offered
21 “no credible explanation” for why he did not read the court’s orders resolving the parties’
22 substantive motions until recently, and that defendant would be “severely prejudiced” by
23 amendment because it “would be forced to seek a trial continuance” to allow for additional
24 motion practice and “discovery into the claim . . . assuming the claim survives a motion to
25 dismiss.” (Id. at 13.) Defendant also observes that any amendment to the FAC to include
26 constructive discharge would be futile, because plaintiff’s remaining retaliation claims are
27 predicated on her March 2019 written complaint and it is undisputed that plaintiff was placed on
28 PAL in December 2018 and never returned to work. (Id. at 14–15.) Accordingly, defendant
1 argues that there could be no working conditions resulting from plaintiff’s written complaint that
2 served to constructively discharge her. (Id.)
3 In reply, plaintiff first argues that “unlike defendant[’s] assertion this is NOT a motion for
4 reconsideration – it is a motion for clarification.” (Doc. No. 88 at 3.) Startlingly, counsel for
5 plaintiff also argues that her pending motion is indeed timely because “it was just recently that
6 Plaintiff’s counsel read and understood” the court’s orders. (Id.) Counsel for plaintiff explains
7 that he “is a sole proprietor” and “has had some major health problems” and only “skimmed” the
8 court’s prior orders. (Id. at 6.) Plaintiff’s counsel asserts that his failure to file an amended
9 complaint was therefore “excusable neglect” on his part.2 (Id.) Plaintiff additionally argues that
10 amendment to plaintiff’s FAC is not even necessary because “the constructive discharge
11 claim . . . has been properly pled,” so “there is no basis, or reason, for not allowing it to go
12 forward.” (Id. at 5.)
13 LEGAL STANDARD
14 “No specific Federal Rule of Civil Procedure governs motions for clarification.” Walker
15 v. Wolf, No. 4:22-cv-00222-DCN, 2024 WL 1746045, at *2 (D. Idaho Apr. 23, 2024); see also N.
16 Alaska Env’t Ctr. v. Haaland, No. 3:20-cv-00187-SLG, 2023 WL 3661998, at *3 (D. Alaska May
17 25, 2023) (“While there is no specific Federal Rule of Civil Procedure governing motions for
18 clarification, such motions have been made and, when appropriate, granted.”). “However, such
19 motions are appropriate when parties are uncertain about the scope of a ruling or when the ruling
20 is reasonably susceptible to differing interpretations.” Id. (citing United States v. All Assets Held
21 at Bank Julius, Baer & Co., 315 F. Supp. 3d 90, 99–100 (D.D.C. 2018)). “The general purpose of
22 a motion for clarification is to explain or clarify something ambiguous or vague, not to alter or
23 amend.” LBF Travel Mgmt. Corp. v. DeRosa, No. 20-cv-02404-MMA-SBC, 2025 WL 1088200,
24 at *2 (S.D. Cal. Apr. 11, 2025) (internal citations omitted).
25 “A party may amend its pleading once as a matter of course within: (A) 21 days after
26 serving it or (B) if the pleading is one to which a responsive pleading is required, 21 days after
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2 The court rejects any such contention. Failing to read the court’s orders obviously does not
28 establish excusable neglect.
1 service if a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),
2 whichever is earlier.” Fed. R. Civ. P. 15(a). Otherwise, a party must seek leave of court to
3 amend a pleading or receive the opposing party’s written consent. Id.
4 The Federal Rules of Civil Procedure provide that leave to amend pleadings “shall be
5 freely given when justice so requires.” Id. Nevertheless, leave to amend need not be granted
6 when the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces
7 an undue delay in litigation; or (4) is futile. See AmerisourceBergen Corp. v. Dialysist W. Inc.,
8 465 F.3d 946, 951 (9th Cir. 2006) (citing Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999)).
9 “Prejudice to the opposing party is the most important factor.” Jackson v. Bank of Haw., 902
10 F.3d 1385, 1397 (9th Cir. 1990) (citing Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S.
11 321, 330–31 (1971)). “The party opposing leave to amend bears the burden of showing
12 prejudice.” Serpa v. SBC Telecomms., 318 F. Supp. 2d 865, 870 (N.D. Cal. 2004) (citing DCD
13 Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)).
14 ANALYSIS
15 A. Plaintiff’s Motion for Clarification
16 Plaintiff first “requests that the Court clarify that the facts regarding constructive
17 discharge are still operative.” (Doc. No. 85-1 at 3.) Plaintiff’s request will be denied.
18 The court finds that there was nothing “ambiguous or vague” about the court’s April 20,
19 2023 order dismissing plaintiff’s constructive discharge claim or the court’s September 27, 2024
20 summary judgment order confirming that this dismissal took place. LBF Travel Mgmt. Corp.,
21 2025 WL 1088200, at *2 (motions for clarification are appropriate only “when a prior order
22 contains ambiguity or may reasonably be interpreted in more than one way”). As noted, the
23 previously assigned district judge, in ruling on defendant’s motion to dismiss, dismissed
24 plaintiff’s eighth claim for constructive discharge but granted plaintiff “leave to amend [her] fifth
25 cause of action to include a constructive discharge claim/theory.” (Doc. No. 49 at 6.) This ruling
26 was made pursuant to agreement of the parties that plaintiff would amend her fifth claim and that
27 defendant “reserve[d] the right to seek dismissal of that claim after Plaintiff amends.” (Doc. No.
28 44 at 5.) The court’s April 20, 2023 dismissal order specifically clearly stated that if plaintiff
1 “fail[ed] to timely file an amended complaint, then leave to amend shall be considered
2 automatically withdrawn.” (Doc. No. 49 at 9.) Plaintiff failed to file a second amended
3 complaint by May 4, 2023; accordingly, leave to amend was automatically withdrawn after that
4 date. In effect, plaintiff’s eighth, ninth, and tenth claims were dismissed, her fifth claim was
5 never amended to include the constructive discharge theory, and defendant accordingly never
6 sought dismissal of any amended claim and instead filed an answer to plaintiff’s FAC. (Doc. No.
7 52.) As stated above, in the court’s subsequent order resolving the parties’ cross-motions for
8 summary judgment, the court clearly stated that “plaintiff’s theory of constructive discharge was
9 previously dismissed” and because plaintiff failed to amend her FAC, “no constructive discharge
10 theory or claim remains in this case.” (Doc. No. 81 at 15.)
11 Accordingly, the court will deny plaintiff’s motion to clarify that her constructive
12 discharge theory is still extant, and instead confirms what has long been clear—that this case
13 proceeds only as to the two remaining claims and their factual predicates outlined in the court’s
14 summary judgment order.
15 B. Plaintiff’s Request for Leave to Amend
16 As also noted above, plaintiff states that if “the Court believes that the constructive
17 discharge claim has been dismissed, plaintiff requests leave to amend the FAC to include the
18 constructive discharge claim.” (Doc. No. 85-1 at 8.) Defendant opposes this request, arguing that
19 plaintiff has demonstrated bad faith and that amendment would be futile, be prejudicial, and cause
20 undue delay. (Doc. No. 86 at 12–16.)
21 Concerning the issue of prejudice, defendant contends that allowing plaintiff to file a
22 second amended complaint at this time would be prejudicial to the defense because defendant’s
23 opportunity to conduct discovery and file dispositive motions closed in September 2023. (Id. at
24 13.) Defendant argues that if plaintiff amends her complaint at this late date, it would be required
25 to seek a continuance of the upcoming August 11, 2025 pretrial conference and October 14, 2025
26 trial date in order to allow for the filing of another motion to dismiss and potentially engage in
27 renewed discovery and summary judgment motion practice. (Id.) As a result, defendant argues
28 /////
1 that granting plaintiff’s belated request for leave to amend would be severely prejudicial to
2 defendant. (Id.) The court agrees.
3 Plaintiff’s request for leave to amend her FAC comes over nineteen months after the close
4 of discovery under the court’s scheduling order and over six months after the parties’ cross-
5 motions for summary judgment were resolved by the court. Courts routinely deny motions for
6 leave to further amend the complaint in situations such as this. See MedImmune, Inc. v.
7 Genentech, Inc., No. 03-cv-02567-MRP, 2004 WL 5327194, at *2 (C.D. Cal. Feb. 18, 2004)
8 (“The fact that a motion to amend is filed after substantial discovery and the filing of a motion for
9 summary judgment ‘weighs heavily against allowing leave.’”) (citation omitted); Lee v. AFT-
10 Yakima, No. 09-cv-03112-EFS, 2011 WL 2181808, at *12 (E.D. Wash. June 3, 2011) (denying
11 the plaintiff’s motion for leave to amend his complaint and finding that “preparing new summary
12 judgment briefing to respond to [the plaintiff’s] additional duty of fair representation allegations
13 at this late stage would cause undue hardship and waste judicial resources”). Indeed, courts have
14 even found prejudice to the opposing party when a motion to amend is filed close to the
15 conclusion of discovery or when there is a pending but unresolved motion for summary judgment.
16 See, e.g., Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (noting that the
17 district court did not abuse its discretion in denying leave to amend because the motion to amend
18 was filed just several days before the discovery cut off, the defendant would have had a limited
19 time to respond, and granting leave to amend would have required additional discovery
20 prejudicing the defendant); Schlacter-Jones v. Gen. Tel. of Cal., 936 F.2d 435, 443 (9th Cir.
21 1991) (“The timing of the motion, after the parties had conducted discovery and a pending
22 summary judgment motion had been fully briefed, weighs heavily against allowing leave. A
23 motion for leave to amend is not a vehicle to circumvent summary judgment.”), abrogated on
24 other grounds by Cramer v. Consol. Freightways Inc., 255 F.3d 683 (9th Cir. 2001). Allowing
25 plaintiff to amend a claim at this advanced stage of this litigation would clearly result in prejudice
26 to defendant, who has committed resources to this litigation and has participated in discovery,
27 filed a motion for summary judgment, and responded to plaintiff’s cross-motion for summary
28 judgment, all in reliance on the court’s prior orders, including its scheduling order, governing this
1 case. See Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999) (“A
2 need to reopen discovery and therefore delay the proceedings supports a district court’s finding of
3 prejudice . . . .”).
4 Moreover, in light of plaintiff’s timing in seeking leave to file a second amended
5 complaint nineteen months after the close of discovery, six months after the issuance of the
6 court’s summary judgment order, and only a few months before the final pretrial conference for a
7 jury trial which has already been continued three times, granting plaintiff’s request would not
8 only prejudice defendant but also would result in undue and further delay in this litigation. See
9 Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir. 1998) (“The district
10 court’s conclusion that Solomon’s motion to amend would cause undue delay and prejudice was
11 not an abuse of discretion. Solomon made the motion on the eve of the discovery deadline.
12 Allowing the motion would have required re-opening discovery, thus delaying the proceedings.”);
13 Muench Photography, Inc. v. Pearson Educ., Inc., No. 12-cv-01927-WHO, 2013 WL 4426493, at
14 *3 (N.D. Cal. Aug. 15, 2013) (noting that seeking leave to amend two weeks before the close of
15 discovery would cause prejudice and undue delay); Columbus Univ. v. Tummala, No. 2:13-cv-
16 05745-SVW-PLA, 2021 WL 3184547, at *2 (C.D. Cal. Mar. 16, 2021) (finding that “the undue
17 delay factor weighs strongly against granting leave to amend” where “a once continued trial [was]
18 impending”); see also In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1227
19 (9th Cir. 2006) (“[The Ninth Circuit] defer[s] to the district court’s judgment about when delay
20 becomes unreasonable because it is in the best position to determine what period of delay can be
21 endured . . . .”) (internal citation and quotation marks omitted).
22 Furthermore, the timing of a request to amend a complaint can raise “concerns regarding
23 bad faith on the part of plaintiff.” Mkrtchyan v. Sacramento Cnty., No. 2:17-cv-02366-DAD-
24 KJN, 2023 WL 6392696, at *3 (E.D. Cal. Sept. 30, 2023). As to plaintiff’s belated filing of the
25 pending request, the court acknowledges that counsel for plaintiff has submitted a declaration in
26 which he states that he merely “skimmed the MSJ order,” did not review it “in detail until very
27 recently,” and has “had some major health problems . . . which have put [him] behind in [his]
28 work.” (Doc. No. 88-1 at 1–2.) While the court is sympathetic to counsel’s health problems, his
1 | declaration only concerns the six-month delay between the court’s order resolving the parties’
2 || cross-motions for summary judgment and the filing of plaintiff's pending motion for clarification;
3 | it does not explain plaintiff's failure to file a second amended complaint pursuant to the clear
4 | instructions of the court’s April 20, 2023 order, or plaintiff's apparent abandonment of her
5 || request to amend her fifth claim in the months thereafter. Therefore, the court finds that the
6 | timing of plaintiff's present request for leave to amend her FAC, shortly after her counsel finally
7 | read the court’s summary judgment order, which significantly narrowed the remaining issues for
8 | trial, raises legitimate concerns regarding bad faith on the part of plaintiff and her counsel. See
9 | Xie v. De Young Props., 5418 LP, No. 1:16-cv-01518-DAD-SKO, 2018 WL 4698307, at *4 n.3
10 | (ED. Cal. Sept. 28, 2018) (“Indeed, the filing of the motion at this late stage of the litigation and
11 } just prior to hearing on defendant’s motion for summary judgment may even suggest bad faith on
12 | the part of plaintiff.”).
13 Accordingly, plaintiff's request for leave to file a second amended complaint will also be
14 | denied.
15 CONCLUSION
16 For the reasons explained above, plaintiff's motion for clarification and request for leave
17 | to file a second amended complaint (Doc. No. 85) is DENIED.
18 IT IS SO ORDERED.
| Dated: _ June 10, 2025 Da A. 2, gel
20 DALE A. DROZD
UNITED STATES DISTRICT JUDGE
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