1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN BOSS, ) Case No.: 3:20-cv-01841-BEN-KSC ) 12 Plaintiff, ) ORDER GRANTING IN PART 13 v. ) JOINT MOTION FOR PLAINTIFF ) TO FILE FIRST AMENDED 14 CENTENE CORPORATION; DOES 1 ) COMPLAINT AND DISMISS through 100, inclusive, 15 ) DEFENDANT CENTENE Defendant. ) 16 ) [ECF No. 10] 17 18 I. INTRODUCTION 19 Plaintiff Susan Boss (“Plaintiff”) brings this discrimination and wrongful 20 termination action against Defendant Centene Corporation (“Defendant”). ECF No. 10 at 21 2. 22 Before the Court is the Joint Motion of Plaintiff and Defendant to Allow Plaintiff to 23 File a First Amended Complaint and Dismiss Defendant (the “Joint Motion”). ECF No. 24 10. After considering the papers submitted, supporting documentation, and applicable law, 25 the Court GRANTS in part the Joint Motion. Plaintiff will be granted leave to file the 26 First Amended Complaint to name the new defendant. Upon the filing of the new 27 complaint, Defendant will be dismissed without prejudice while the newly named 28 defendant will have thirty (30) days from being served with the First Amended Complaint 1 to file a responsive pleading. Finally, absent a motion to amend the complaint or service 2 upon the doe defendants within thirty (30) days of this order, all doe defendants will be 3 dismissed from this case. 4 II. BACKGROUND 5 A. Statement of Facts 6 Plaintiff alleges that in July 2008, she began working for Defendant as a Nurse 7 Practitioner Care Manager, receiving “exemplary performance evaluations” and earning a 8 yearly salary of approximately $87,000.00. ECF No. 1-2 at 7, ¶¶ 12-13. Plaintiff alleges 9 that approximately ten years later, she was terminated after taking short term, and then, 10 long term disability due to knee injuries, which required full arthroplasties for both knees. 11 See id. at 8-11. 12 On May 28, 2019, the Department of Fair Employment and Housing issued a Right- 13 to-Sue Notice, permitting Plaintiff to file a civil action under the provisions of California’s 14 Fair Employment and Housing Act (“FEHA”) against Defendant. ECF No. 1-2 at 7, ¶ 11. 15 B. Procedural History 16 On May 26, 2020, Plaintiff filed a complaint in the San Diego Superior Court 17 alleging causes of action for (1) disability discrimination in violation of FEHA; (2) failure 18 to accommodate; (3) failure to engage in the interactive process in violation of FEHA; (4) 19 retaliation in violation of FEHA; and (5) wrongful termination in violation of public 20 policy. ECF No. 1-2. On September 18, 2020, Defendant filed a Notice of Removal and 21 Answer. ECF Nos. 1, 2. 22 On December 3, 2020, Plaintiff and Defendant filed a Joint Motion for Plaintiff to 23 File a First Amended Complaint and Dismiss Defendant. ECF No. 10. 24 III. LEGAL STANDARD 25 If more than twenty-one (21) days has passed since a defendant has filed a 26 responsive pleading, a plaintiff may only amend the complaint with (1) the opposing 27 party’s written consent or (2) leave of the Court. FED. R. CIV. P. 15(a)(2). “The court 28 should freely give leave when justice so requires.” Id. 1 “Unless the court orders otherwise, any required response to an amended pleading 2 must be made within [later of either] the time remaining to respond to the original 3 pleading or . . . 14 days after service of the amended pleading.” FED. R. CIV. P. 15(a)(3). 4 IV. DISCUSSION 5 The Parties allege on September 18, 2020, when Defendant removed this action to 6 the Southern District, Defendant had also confirmed that Health Net Federal Services, 7 LLC (“HNFS, LLC”), and not Defendant, was Plaintiff’s actual employer at all times 8 relevant to this lawsuit. ECF No. 10 at 2:9-13. In the Joint Motion, the Parties seek to 9 (1) allow Plaintiff to file a First Amended Complaint, naming HNFS, LLC to this lawsuit; 10 (2) dismiss Defendant without prejudice; and (3) have HNFS, LLC file a responsive 11 pleading twenty-one (21) days from the date of the filing of the FAC. Id. at 2:10-3:4. 12 The Court finds good cause for granting these requests with the exception that 13 granting HNFS, LLC twenty-one (21) days from the filing of the First Amended 14 Complaint seems unreasonable given Plaintiff will need to serve HNFS, LLC. Thus, the 15 Court finds it more appropriate to grant HNFS, LLC, a new party to this case, twenty-one 16 (21) days from being served with the First Amended Complaint to file a responsive 17 pleading. 18 Finally, the Court notes that Plaintiff has named doe defendants in this case. The 19 Federal Rules of Civil Procedure (the “FRCP”) neither authorize nor prohibit the use of 20 fictitious parties; however, FRCP 10 does require a plaintiff to include the names of all 21 parties in his complaint. See Keavney v. Cty. of San Diego, No. 319CV01947AJBBGS, 22

, at *4-5 (S.D. Cal. Jul. 21, 2020) (Battaglia, J.) (citing FED. R. CIV. P. 23 10(a)). Plaintiff’s Complaint includes allegations against Does 1 through 100. Naming 24 doe defendants further implicates Rule 4 of the FRCP requiring service of the complaint. 25

(noting that “it is effectively impossible for the United States Marshal or deputy marshal 26 to fulfill his or her duty to serve an unnamed defendant”); Finefeuiaki v. Maui Cmty. Corr. 27 Ctr. Staff & Affiliates,

, at *6 (D. Haw. July 25, 2018) (same). “A 28 plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe 2, John Doe | 3, and so on, but he must allege specific facts showing how each particular doe defendant 2 violated his rights.” Keavney,

at *4-5. Where a “[p]laintiff fails to link 3 any particular . . . violation to any specific, individual . . . actor,” or seeks “to even 4 minimally explain how any of the unidentified parties he seeks to sue personally caused a 5 || violation of his . . . rights,” the court must dismiss those individuals, especially when they 6 || have not been served. See, e.g., FED. R. Civ. P. 4(m) (providing that “[i]f a defendant is 7 || not served within 90 days after the complaint is filed, the court—on motion or on its own 8 |l after notice to the plaintiff—must dismiss the action without prejudice against that ? || defendant or order that service be made within a specified time.”); see also S.D. Cal. Civ. 10 41.1(a); Keavney,

at *4-5 (dismissing the plaintiff's first amended I] complaint). Thus, all doe defendants will be dismissed without prejudice for want of 12 prosecution pursuant to Rule 4(m) if they are not served within thirty (30) days. Should 13 || Plaintiff need to add additional defendants, Plaintiff may seek leave of Court as Plaintiff 14 |/ has done with the instant motion before the Court. CONCLUSION 16 For the above reasons, the Court GRANTS in part the Parties’ Joint Motion as 17 || follows: 18 1. Plaintiff's request for leave to file the First Amended Complaint is granted. 19 2. Upon the filing of the First Amended Complaint on the docket, Defendant 20 || Centene Corporation shall be dismissed from this case without prejudice. 21 3. Defendant HNFC, LLC shall have twenty-one (21) days from being served 22 || with the First Amended Complaint to file a responsive pleading. 23 4. Absent a motion to amend the complaint or service upon the doe defendants 24 |! within thirty (30) days of this order, all doe defendants w3ll be dismissed from this case. 25 IT IS SO ORDERED. 26 || DATED: December 15, 2020 7 HON. ROGER T. BENITE 28 United States District Judge

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