Hsieh v. Stanford University et al, No. 5:2009cv05455 - Document 99 (N.D. Cal. 2010)
Court Description: ORDER DENYING (1) 71 Plaintiff's Motion for Leave to File an Amended Complaint, (2) 72 Plaintiff's Motion for Extension of Time to Conduct Discovery, and (3) 76 Plaintiff's Motion to Compel Defendant Stanford University to Produce Documents. Signed by Magistrate Judge Howard R. Lloyd on 12/15/2010. (hrllc1, COURT STAFF) (Filed on 12/15/2010)
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Hsieh v. Stanford University et al Doc. 99 1 ** E-filed December 15, 2010 ** 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 FANG-YUH HSIEH, No. C09-05455 HRL Plaintiffs, 12 ORDER DENYING (1) PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT, (2) PLAINTIFF’S MOTION FOR EXTENTION OF TIME TO COMPLETE DISCOVERY, AND (3) PLAINTIFF’S MOTION TO COMPEL DEFENDANT STANFORD UNIVERSITY TO PRODUCE DOCUMENTS v. 13 STANFORD UNIVERSITY, et al., 14 Defendants. 15 16 17 ____________________________________/ [Re: Docket Nos. 71, 72 & 76] 18 19 20 BACKGROUND The Department of Veterans Affairs’s (“VA”) Cooperative Studies Program (“CSP”) plans 21 and conducts large clinical trials. Through its five coordinating centers, the CSP provides statistical 22 and administrative support to VA investigators conducting clinical trials. Pro se plaintiff Fang-Yuh 23 “Frank” Hsieh (“Plaintiff”) was employed by one of those coordinating centers, the Veterans Affairs 24 Cooperative Studies Program Coordinating Center in Palo Alto, California (“Palo Alto VA- 25 CSPCC”), as a mathematical statistician from 1994 to 2002. 26 A. Plaintiff’s Previous Lawsuit 27 Plaintiff claimed he was harassed and terminated in 2002 after he complained to his 28 supervisor, Dr. Philip Lavori (“Dr. Lavori”), about discriminatory treatment. Plaintiff sued the VA Dockets.Justia.com 1 and Dr. Lavori in 2006 based on this alleged conduct, the failure to reinstate him to a mathematical 2 statistician position, and the failure to hire him for another position in 2005. That case resulted in 3 summary judgment for the defendants, a judgment upheld on appeal. See Hsieh v. Peake, et al., No. 4 C06-05281 PJH. 5 B. Plaintiff’s Instant Lawsuit 6 In November 2009, Plaintiff filed a new lawsuit, this time against defendants Eric Shinseki, 7 Secretary of the Department of Veterans Affairs (the “Federal Defendant”), Stanford University 8 (“Stanford”), and Dr. Lavori. Docket No. 1. His claims against the Federal Defendant involve his 9 three applications for statistician positions in 2009. Apparently, no candidates were hired for two of For the Northern District of California United States District Court 10 11 the positions, and Plaintiff was not hired for the other position. As for his claims against Stanford, Plaintiff alleges that he applied for three positions at 12 Stanford in 2008 and 2009 but that younger, less-qualified individuals got the jobs. Stanford admits 13 that Plaintiff applied and was not hired for the positions at Stanford but denies Plaintiff’s claims of 14 age discrimination and retaliation. 15 As for his claims against both defendants, Plaintiff alleges that he applied for a joint 16 VA/Stanford position by sending his application materials to Dr. Lavori on May 3, 2009, but an 17 individual ten years younger than Plaintiff, got the job instead. Plaintiff also alleges that he has 18 been “blackballed and blacklisted” by the Federal Defendant and Stanford in retaliation for his prior 19 discrimination complaints and that there is a conspiracy to bar him from employment. 20 Plaintiff claims that the defendants’ actions violate Title VII of the Civil Rights Act of 1964, 21 42 U.S.C. § 2000e, et seq. (“Title VII”) and the Age Discrimination in Employment Act, 29 U.S.C. 22 §§ 621-634 (“ADEA”). Docket No. 46. 23 24 25 Plaintiff filed three motions here, each addressed below. DISCUSSION A. Plaintiff’s Motions for Leave to File a Fourth Amended Complaint and for Extension of Time to Complete Discovery 26 27 28 Plaintiff filed his original complaint on November 18, 2009, and within two months, amended his complaint three times to add claims and allegations regarding additional positions to 2 1 which he applied but was not hired. Docket Nos. 1, 9, 14. Later, in April 2010, after the Court 2 dismissed without prejudice his Second Amended Complaint (although the claims against Dr. 3 Lavori were dismissed with prejudice), Plaintiff amended his complaint once again. Docket No. 46. 4 Now, Plaintiff moves the Court for leave to file a Fourth Amended Complaint and to extend No. 72 (“Motion to Extend” or “MTE”). Specifically, Plaintiff wants to amend his complaint to add 7 yet another claim: he says that he applied for a job as a biostatistician at Stanford University on 8 August 25, 2010 and was told that he was not selected for it on September 9. MTA at 2, 5. He 9 alleges that he was not selected for the position because of his age and in retaliation for his prior 10 For the Northern District of California the November 29 fact discovery cutoff. Docket No. 71 (“Motion to Amend” or “MTA”); Docket 6 United States District Court 5 complaints of discrimination. MTA at 5. Stanford University and the Federal Defendant oppose 11 Plaintiff’s motions. Docket No. 78 (“Stanford MTE Opp’n”); Docket No. 83 (“FD MTE Opp’n”). 12 Plaintiff did not file any reply briefs. 13 In support of his motion for an extension of the fact discovery cutoff, Plaintiff says that the 14 Federal Defendant has failed to completely respond to his Interrogatory Nos. 1 and 31, and he will 15 not have sufficient time to file a motion to compel, if it is necessary. MTE at 2-3. He also argues 16 that, if he is allowed to file a Fourth Amended Complaint, the fact discovery cutoff will need to be 17 extended as well. Id. at 3. 18 As for Plaintiff’s motion for leave to file another amended complaint, the Ninth Circuit has 19 made clear that “leave to amend should be granted unless amendment would cause prejudice to the 20 opposing party, is sought in bad faith, is futile, or creates undue delay.” Johnson v. Mammoth 21 Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation omitted). Stanford first suggests that 22 Plaintiff’s proposed amendment is futile. Stanford MTE Opp’n at 6. It says that, contrary to 23 Plaintiff’s assertion, the position that Plaintiff applied for on August 25, 2010 was still open in 24 September when Plaintiff notified the EEOC of his claim, and no decision regarding the position has 25 been made. Indeed, the position was not closed for applications until November 3, and no 26 applicants, including Plaintiff, have been hired or notified of the decision on their applications 27 (although the terms of a hiring offer are apparently being negotiated). Docket No. 79 (“Flanagan 28 MTE Decl.”), ¶ 7. 3 Stanford and the Federal Defendant also argue that yet another amendment is prejudicial to 1 2 them. First, large amounts of discovery have already been taken on the current claims, and the case 3 would have to be unduly delayed to allow for further discovery on a new claim and new facts.1 4 Stanford MTE Opp’n at 6-7. Second, Stanford has prepared its motion for summary judgment 5 based on the Third Amended Complaint (which it plans to filed after this Court rules on Plaintiff’s 6 instant motions), and a further amended complaint would require it to re-do its motion. Id. Third, 7 Stanford argues that Plaintiff delayed in bringing his motion. It says that Plaintiff first brought his 8 potential new claim to its attention in September 2010, when Plaintiff stated in an email that he 9 planned to file a separate lawsuit in 2011 rather than amend his complaint in this case. Id. at 4-5; For the Northern District of California United States District Court 10 Flanagan Decl., ¶ 6, Ex. 2. Stanford claims it heard nothing else about this new claim until it 11 received Plaintiff’s motion. Stanford MTE Opp’n at 5. 12 The Court agrees with Stanford and the Federal Defendant. The Court is skeptical that 13 Plaintiff could make a prima facie case for discrimination since the position for which Plaintiff 14 applied on August 26 reportedly was not even closed for applications until November 3. Also, 15 further amendment of the complaint is prejudicial to Defendants and would unduly delay this case. 16 All parties have conducted a substantial amount of discovery and the deadline to conduct fact 17 discovery has passed. The Court will not permit Plaintiff to file yet another amended complaint at 18 this late stage. As for Plaintiff’s motion to extend the fact discovery cutoff, Stanford and the Federal 19 20 Defendant argue that it is simply unwarranted. First, the Federal Defendant says that it has now 21 completely responded to Plaintiff’s Interrogatory No. 1 (it amended its response on November 10, 22 after Plaintiff filed his motions). FD Opp’n at 5-6, Ex. D. Second, the Federal Defendant’s 23 response to Plaintiff’s Interrogatory No. 31 was not due until November 23. Plaintiff therefore had 24 until December 6 to file a motion to compel, but he did not.2 That was more than enough time for 25 Plaintiff to file any such motion, and an extension of the discovery cut-off is not warranted for this 26 1 27 28 Indeed, Stanford says it has already responded to 45 requests for production of documents, 41 interrogatories, and 5 requests for admission, and the Federal Defendant says it has responded to 41 requests for production of documents, 30 interrogatories, and 11 requests for admission. Stanford MTE Opp’n at 3; FD MTE Opp’n at 4. 2 Under Civil Local Rule 26-2, any motions to compel fact discovery may be filed no later than 7 days after the fact discovery cutoff. 4 1 reason. Third, they argue that Plaintiff’s motion for leave to file a Fourth Amended Complaint 2 should be denied, so that is also not a valid reason for extending the discovery cutoff. 3 Again, the Court agrees with Stanford and the Federal Defendant. Extending the fact 4 discovery period is unnecessary. His arguments involving Interrogatory Nos. 1 and 31 are moot and 5 the Court has denied his motion for leave to file an amended complaint. The Court therefore denies 6 Plaintiff’s motion for an extension of time to complete discovery. B. Plaintiff’s Motion to Compel Production of Documents against Stanford University 7 Plaintiff also moves for an order compelling Stanford to provide complete responses to 8 9 Plaintiff’s Interrogatory No. 24 and Request for Production of Documents No. 25. Docket No. 76 For the Northern District of California United States District Court 10 (“Motion to Compel” or “MTC”). Essentially, Plaintiff wants information about anyone who 11 contacted Dr. Lavori about Plaintiff from 2008 to present and any documentation thereof.3 Upon review of Stanford’s response to Plaintiff’s Interrogatory No. 24, the Court finds 12 13 Stanford’s response to be sufficient. While Plaintiff apparently believes that Stanford’s response is 14 incomplete, he provided no evidence in this regard in his motion or at oral argument. The Court 15 likewise fails to see any reason to doubt Stanford’s response. As for his RFP No. 25, Plaintiff says that he sent several emails to Dr. Lavori in 2009, but 16 17 Stanford has not produced them. MTC at 3. Plaintiff also says that prospective third party 18 employers may have contacted Dr. Lavori about Plaintiffs’ other job applications, but Stanford has 19 not produced any of these emails, either. Docket No. 88 (“Reply”) at 4-5. For example, as he 20 alleges in the complaint, Plaintiff says he applied for a joint VA/Stanford position by sending his 21 application materials via email to Dr. Lavori on May 3, 2009. During discovery, Stanford produced 22 to Plaintiff the attachments to this email but did not produce the email. Id. Plaintiff says he sent 23 several other emails to Dr. Lavori since then, including an email in December 2009 about settling 24 this lawsuit. Id. 25 26 27 28 3 Plaintiff’s Interrogatory No. 24 asks Stanford to “[d]escribe in details without limitation the date, place, and circumstance, each and every contact, and the method of contact, the name of persons who contacted or trying to make a contact with Dr. Lavori regarding Plaintiff from 2008 to present,” and his Request for Production of Documents No. 25 seeks “[a]ny documents, writings, or tangible things that you identified in response to plaintiff’s Interrogatory #24.” Docket No. 81 (“Flanagan MTC Decl.”), Exs. 3-4. 5 1 Stanford replies that it conducted a diligent search for but found no such emails. Flanagan 2 MTC Decl., ¶¶ 5-7. It says that at the outset of this case, its counsel met with Dr. Lavori and 3 “discussed the need to search for and preserve all email and documents related to Plaintiff’s claims.” 4 Id. at ¶ 6. Dr. Lavori stated at that time that “while he may have received email from Plaintiff, he 5 likely did not respond and did not still have them,” as “after Plaintiff first sued him in 2006, [Dr. 6 Lavori] has not wished to communicate with [Plaintiff].” Id. Dr. Lavori subsequently searched his 7 email and confirmed that he did not have any emails from, to, or about Plaintiff created prior to the 8 filing of Plaintiff’s complaint; Dr. Lavori provided counsel with the emails he received after the 9 lawsuit was filed, and these emails were produced to Plaintiff. Id. For the Northern District of California United States District Court 10 With respect to the May 3, 2009 email referred to by Plaintiff, Stanford explains that it 11 looked for the email, but was only able to find the attachments to it. It says that Dr. Lavori did not 12 have a copy of the email, but he probably forwarded it to his assistant; his assistant, in turn, had 13 copies of the attachments but not the email, most likely because her email crashed in August 2009, 14 and virtually all the emails she received from November 24, 2008 to August 28, 2009 were deleted 15 (and were unable to be retrieved by Stanford’s IT department). Id. at ¶ 7. 16 Moreover, it became clear at oral argument that Plaintiff does not actually know whether 17 prospective employers actually contacted Dr. Lavori. Plaintiff said that the prospective employers 18 told him they would contact Dr. Lavori, but aside from these statements, Plaintiff has no evidence 19 that they followed through on them. 20 In sum, Stanford represents that it has done a diligent search for any information or 21 documents responsive to Plaintiff’s Interrogatory No. 24 and Request for Production of Documents 22 No. 25 and has responded appropriately. Plaintiff offers no evidence that Stanford has not done so, 23 and the Court has no reason to believe otherwise, either. The Court cannot require Stanford to 24 provide information or documents it does not have. Plaintiff’s motion to compel is denied. 25 CONCLUSION 26 Based on the foregoing, Plaintiff’s motions for leave to file an amended complaint, for 27 extension of time to complete discovery, and to compel Stanford to produce documents are all 28 DENIED. 6 1 2 3 IT IS SO ORDERED. Dated: December 15, 2010 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 1 C09-05455 HRL Notice will be electronically mailed to: 2 Jennifer S Wang 3 Rosa Maria Loya Sarah G. Flanagan 4 jennifer.s.wang@usdoj.gov, bonny.wong@usdoj.gov, lily.c.ho-vuong@usdoj.gov rosa.loya@pillsburylaw.com, docket@pillsburylaw.com sarah.flanagan@pillsburylaw.com, docket@pillsburylaw.com, susie.macken@pillsburylaw.com 5 Notice will be sent by other means to: 6 Fang-Yuh Hsieh 1394 University Avenue Palo Alto, CA 94301 7 8 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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