The opinion of the court was delivered by: Jeremiah C. Lynch United States Magistrate Judge
The present order addresses the passel of motions that are pending in this matter. As the facts and procedural history are familiar to the parties, the Court does not recite them here except as necessary to explain its disposition of a particular motion.
I. Defendant's Motion for Partial Summary Judgment
Plaintiff Arlene Joseph's Second Amended Complaint advances two claims for relief under the Montana Wrongful Discharge From Employment Act, Mont. Code Ann. § 39-2-901 et seq. The first (Count I) alleges Defendant LineHaul Logistics, Inc. ("LineHaul") terminated Joseph's employment without "good cause" in violation of Mont. Code Ann. § 39-2-904(b). The second (Count II) alleges LineHaul terminated Joseph's employment in retaliation for her having "reported a violation of employment conditions and wage and hour laws" in violation of Mont. Code Ann. § 39-2-904(1)(a). Dkt. 19, at 3. The prefatory allegations of the complaint state that Joseph was subjected to a hostile work environment of such severity that she was compelled to retain an attorney. And on April 20 and 27, 2011, the attorney sent correspondence notifying LineHaul of the alleged hostile work environment and reporting violations of state and federal wage and hour laws. Joseph expressly alleges that in response to the correspondence Stuart Looney, LineHaul's president, terminated her employment on April 27, 2011.
LineHaul moves for partial summary judgment upon Joseph's wrongful discharge claim. It argues the only reasonable conclusion that can be drawn from the undisputed facts of record is that Joseph was not terminated, but voluntarily resigned her employment.
Fed. R. Civ. P. 56(a) entitles a party to summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A party moving for summary judgment who does not have the burden of persuasion at trial, must produce evidence which either: (1) negates an essential element of the non-moving party's claim, or (2) shows that the non-moving party does not have enough evidence of an essential element to ultimately carry his burden at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1000, 1102 (9th Cir. 2000). Once the moving party has satisfied its burden, the non-moving party must identify evidence establishing that a dispute as to a particular material fact is genuine. Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opponent "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. And the opponent "may not rest upon the mere allegations or denials of his pleading, but must set forth facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
An issue of fact is "genuine" if there is sufficient evidence for a reasonable factfinder to find for the non-moving party. Anderson, 477 U.S. at 248-49. A fact is "material" if may affect the outcome of the case. Id. at 248.
"In considering a motion for summary judgment the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), abrogated on other grounds as noted in Shakur v. Schririo, 514 F.3d 878, 884-85 (9th Cir. 2008).
An essential element to Joseph's wrongful discharge claim -- as pled -- is that her employment was terminated by LineHaul, which is a material fact. Mont. Code Ann. § 39-2-903(2). Thus, disposition of LineHaul's motion turns on whether there is a "genuine issue" as to whether Joseph was terminated by LineHaul. Drawing all inferences in a light most favorable to Joseph, the Court finds that a genuine dispute does exist whether Joseph was terminated, or voluntarily resigned her employment with LineHaul.
LineHaul acknowledges that Joseph testified in both an affidavit and at her deposition that she did not resign or quit her job at LineHaul. Dkt. 95, at 4. But it argues that Joseph's prior statements to third parties are inconsistent with her sworn testimony. LineHaul might well be successful in using these prior statements to attack the credibility of Joseph at trial, but the Court is precluded from determining Joseph's credibility on summary judgment.
For purposes of completeness, the Court addresses the suggestion made by Joseph in her brief, that she adequately pled and is entitled to pursue a claim of constructive discharge -- a suggestion with which LineHaul takes issue.
Mont. Code Ann. § 39-2-903 defines "constructive discharge" as follows: "[T]he voluntary termination of employment by an employee because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative." Contrary to Joseph's argument, her Second Amended Complaint does not plead a claim for constructive discharge. And she has repeatedly stated and argued that she always intended to return to work at LineHaul but was terminated by Stuart Looney before she could return. Joseph's argument is an attempt to amend her pleading long after the December 16, 2011, deadline for amended pleadings set forth in the Court's Fed. R. Civ. P. 16 scheduling order of November 1, 2011.
For the reasons stated, LineHaul's motion for partial summary judgment is DENIED.
II. Joseph's Motion to Amend the Fed. R. Civ. P. 16 Scheduling Order
Joseph moves the Court to allow her to file both a motion for summary judgment and a motion in limine beyond the deadline established in the Rule 16 scheduling order for filing motions. LineHaul resists the motion as untimely.
The scheduling order required motions for summary judgment to be filed by June 8, 2012, and the motions in limine to be filed by June 15, 2012. Joseph's motion to amend the scheduling order was filed on June 22, 2012.
Because Joseph's request for modification of the scheduling order comes after the motions deadline, she must satisfy the "good cause" standard of Fed. R. Civ. P. 16(b)(4). Good cause exists if the pretrial schedule "cannot reasonably be met despite the diligence of the party seeking the extension." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (quoting Fed. R. Civ. P. 16 Advisory Committee's Notes (1983 Amendment )). "[T]he focus of the inquiry is upon the moving party's reasons for seeking modification." Johnson, 975 F.2d at 609. "If that party was not diligent, the inquiry should end." Id.
The principle thrust of Joseph's argument as to the existence of good cause is that she needed the transcript of Stuart Looney's deposition to fully present her motions. Joseph did not accomplish Looney's deposition until May 31, 2012 -- the deadline for the completion of all discovery. Joseph asserts, however, that the late scheduling of Looney's deposition was necessitated by LineHaul's failure to provide a Fed. R. Civ. P. 26(a)(1) initial disclosure with respect to LineHaul's counterclaims. She also complains LineHaul's failure to provide an initial disclosure necessitated that she propound interrogatories to which LineHaul provided incomplete responses that have never been supplemented in accordance with Fed. R. Civ. P. 26(e).
LineHaul provided its initial responses to Joseph's interrogatories on March 19, 2012 -- responses which Joseph asserts were incomplete. Joseph, however, did not invoke the Court's assistance under Fed. R. Civ. P. 37(a)(3)(B)(iii) to compel LineHaul to provide complete responses in a timely manner so as not to jeopardize Joseph's ability to comply with the motions deadline. Thus, the situation presented is not one in which the pretrial schedule could not "reasonably be met despite the diligence of the party seeking the extension." Johnson, 975 F.2d at 609.
The Court notes that Joseph maintains the right to raise, at the time of trial, objections to the admissibility of evidence that may not have been properly disclosed under Fed. R. Civ. P. 26, as well as any objections under the Federal Rules of Evidence. Joseph may also seek judgment as a matter of law ...