1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BJ FOSTER and ADAM ELLIS, Case No.: 24cv1917-LL-SBC

12 Plaintiffs, ORDER GRANTING MOTION TO 13 v. AMEND COMPLAINT

14 BOARD OF TRUSTEES OF THE [ECF No. 16] CALIFORNIA STATE UNIVERSITY, 15 ET AL., 16 Defendants 17 18 19 Before the Court is Plaintiffs’ Motion to Amend Complaint. ECF No. 16 (“Motion” 20 or “Mot.”). Defendants filed an Opposition [ECF No. 17 (“Opposition”) and Plaintiffs filed 21 a Reply [ECF No. 18 (“Reply”)]. The Court finds this matter suitable for determination on 22 the papers and without oral argument pursuant to Federal Rule of Civil Procedure 78(b) 23 and Civil Local Rule 7.1(d)(1). For the reasons stated below, the Court GRANTS the 24 Motion. 25 I. BACKGROUND 26 On August 24, 2024, Plaintiffs BJ Foster and Adam Ellis filed a Complaint in San 27 Diego Superior Court against the Board of Trustees of the California State University, 28 Jennifer Milo, Todd Sneeden, and Andrea Leonard in their individual and official 1 capacities, for alleged discrimination and retaliation. ECF No. 1-2. Shortly thereafter, on 2 October 16, 2024, Plaintiffs filed a First Amended Complaint (“FAC”) for alleged 3 retaliation and discrimination. ECF No. 1-3. In the FAC, Plaintiffs allege that this case 4 “ar[ose] out of a culture of favoritism toward the women’s basketball team and disparate 5 treatment of the men’s basketball team and their male Coaches, Foster and Ellis at CSUSM 6 [California State University San Marcos]. After Plaintiffs Foster and Ellis reported the 7 gender discrimination against their tea[m] and on behalf of themselves respectively, they 8 were subjected to a series of retaliatory actions which created a hostile environment causing 9 irreparable damage to their careers.” FAC at ¶ 14. In sum, Plaintiffs allege that they 10 experienced discrimination and retaliation in connection with their former positions as 11 basketball coaches at California State University San Marcos (hereinafter “CSUSM”) 12 which ultimately led to their forced resignations (Plaintiff Foster on April 10, 2023 and 13 Plaintiff Ellis on June 12, 2023). FAC ¶¶ 52, 68. In the FAC, Plaintiffs bring claims for: 14 (1) sex discrimination in violation of the California Fair Employment Housing Act 15 (“FEHA”); (2) failure to prevent discrimination in violation of the FEHA; (3) retaliation 16 for opposing discrimination, harassment, and/or retaliation in violation of the FEHA; (4) 17 sex discrimination in violation of Title IX of the Education Amendments Act of 1972 18 (“Title IX”); (5) retaliation in violation of Title IX; (6) race discrimination in violation of 19 the FEHA; (7) hostile environment harassment on the basis of gender in violation of the 20 FEHA; and (8) and retaliation for the exercise of First Amendment rights. Id. 21 On October 17, 2024, Defendants removed this action to federal court. ECF No. 1. 22 On December 23, 2024, the Magistrate Judge held an Early Neutral Evaluation conference, 23 and the case did not settle. ECF No. 12. Accordingly, the Court issued a Scheduling Order, 24 which set a deadline of February 11, 2025 for Plaintiffs to file a motion to join parties 25 and/or amend the pleadings. ECF No. 13. Upon a showing of good cause, the Magistrate 26 Judge extended the deadline for Plaintiffs to amend the pleadings until February 25, 2025. 27 ECF No. 14. Plaintiffs’ counsel, Suzy Moore, attests: 28 On several occasions prior to February 18, 202[5], pursuant to the Court 1 Chambers Rules, and the local rules of this court, Plaintiffs’ counsel personally met and conferred with Defense counsel in an attempt to obtain a 2 stipulation to avoid bringing a motion. On February 18, 202[5], Plaintiff sent 3 a red line version of the Plaintiffs’ proposed Second Amended Complaint and personally spoke to defense counsel seven (7) court days prior to the motion. 4 On the evening of February 24, 2025, Plaintiffs’ counsel was notified by e- 5 mail that Defense counsel refused to stipulate. 6 ECF No. 16-2, Decl. of Suzy Moore, ¶ 8. 7 On February 25, 2025, Plaintiffs timely filed the instant Motion. ECF No. 16-1. The 8 Motion seeks to file a Second Amended Complaint (“SAC”) to add additional parties who 9 Plaintiffs allege “participated in the retaliation of the Plaintiffs and the search firm agency 10 that participated in the retaliation and discrimination of Plaintiff Ellis.” Mot. at 5. Plaintiffs 11 further allege that filing the SAC “will not cause undue delay because this case is in its 12 early stages.” Id. 13 II. LEGAL STANDARD 14 Once a party has served its pleading, there is a short period of time when the party 15 may amend it once as a matter of right. Fed. R. Civ. P. 15(a)(1). In all other cases, a party 16 may amend its pleading only with written consent from the opposing party or permission 17 from the court. Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice 18 so requires.” Id. This policy should be applied with “extreme liberality” to reflect the 19 underlying purpose of Rule 15 “to facilitate decision on the merits, rather than on the 20 pleadings or technicalities.”1 United States v. Webb,

(9th Cir. 1981). 21 “Five factors are taken into account to assess the propriety of a motion for leave to amend: 22 bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether 23 the plaintiff has previously amended the complaint.” Johnson v. Buckley,

, 24 1077 (9th Cir. 2004). Prejudice to the opposing party is the factor that carries the greatest 25 weight. Eminence Cap., LLC v. Aspeon, Inc.,

(9th Cir. 2003). “The 26 27 1 Citations of rules in this order refer to the Federal Rules of Civil Procedure, unless 28 1 party opposing amendment bears the burden of showing prejudice.” DCD Programs, Ltd. 2 v. Leighton,

(9th Cir. 1987). 3 However, once a Rule 16 scheduling order is issued, dates set forth therein may be 4 modified only “for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see 5 also ECF No. 24 at 7 (stating that dates and times will not be modified except for good 6 cause shown). “Unlike Rule 15(a)’s liberal amendment policy which focuses on the bad 7 faith of the party seeking to interpose an amendment and the prejudice to the opposing 8 party, Rule 16(b)’s “good cause” standard primarily considers the diligence of the party 9 seeking the amendment.” Johnson v. Mammoth Recreations, Inc.,

(9th 10 Cir. 1992). “If that party was not diligent, the inquiry should end.”

After a party first 11 shows good cause under Rule 16(b) to amend a pleading after the deadline specified in the 12 scheduling order, then the court may consider whether amendment under Rule 15 is proper. 13

. 14 III. DISCUSSION 15 Plaintiffs seek leave to amend to file a SAC to add the following new Defendants to 16 their case: (1) Associate Athletic Director Morad Shah; (2) Vice President Viridiana Diaz; 17 (3) President Ellen Neufeldt; (4) Renaissance Search and Consulting LLC (“Renaissance”); 18 and (5) Renaissance employee Adam Gordon. Mot. at 2-3. The reasons Plaintiffs seek to 19 add Shah, Diaz and Neufeldt are as follows: 20 Based on additional facts and information obtained by Plaintiffs’ counsel’s investigation and witness interviews, it was discovered that the male athletes 21 had directly reported their reasonable belief that the team and their coaches 22 were being disparately treated to both Vice President Viridiana Diaz and President Ellen Neufeldt. Despite these reports, these administrators failed to 23 take any action to remedy the treatment nor were these men interviewed as 24 part of the Title IX investigation. [] It was further discovered in a footnote in one of the thousands of pages of investigations that Associate Athletic 25 Director Morad Shah had reported that he was aware that Jennifer Milo was 26 responsible for making the decision to hire the national search team because of Plaintiff Adam Ellis’ reports of disparate treatment. 27 28 Mot. at 2-3. 1 Further, Plaintiffs allege that their “investigation has revealed that Mr. Gordon was 2 involved in the common scheme and plan to deprive Plaintiff Adam Ellis from being 3 promoted into the position of Head Coach of the Men’s basketball team.”

The reason 4 Plaintiffs seek to add Defendant Renaissance is because Plaintiffs’ counsel learned 5 “through her investigation of witnesses that this firm reached out to minority candidates 6 prior to Cal State San Marcos posting the Head coach position as they were a DEI firm 7 who were [allegedly] biased against Plaintiff Adam Ellis because of his race and for 8 engaging in protected activity.” Mot. at 4 (citing Decl. of Suzy Moore ¶ 6). 9 Defendants oppose on the grounds that Plaintiffs have failed to “convincingly 10 explain why the Court should overlook their undue delay in seeking to add the new 11 defendants, how their claims are plausible to withstand a motion to dismiss, or why 12 Defendants should be compelled to expend additional time and resources engaging in 13 discovery and motion practice due to the filing of a third complaint.” Oppo. at 16-17. 14 Specifically, Defendants argue that: 15 Plaintiffs have failed to provide any adequate justification for their delay in seeking to add Shah, Diaz, Neufeldt, Renaissance, or Gordon to this case. The 16 identity and role of these proposed defendants have long been known to 17 Plaintiffs. In fact, Shah, Diaz, Neufeldt, Renaissance, and Gordon are repeatedly mentioned in both complaints that Plaintiffs have filed in this 18 action through their current counsel. 19 Second, Plaintiffs’ proposed amendments are futile. Plaintiffs’ claims under 20

improperly seek to make a purely internal employment 21 dispute into a matter of constitutional litigation, and they ultimately rest on bare conclusions and speculation rather than those facts essential to the cause 22 of action. Likewise, Ellis’s proposed discrimination claims against 23 Renaissance—the third-party search firm the CSU engaged to run the search for a head coach after Foster resigned—are based on little more than his 24 unsubstantiated opinions about how he ‘should’ have been ‘ranked’ when he 25 applied for the position and his twisted and perverse view that efforts to ensure a diverse and inclusive pool of candidates could only mean that he was being 26 discriminated against for being white. 27 Simply put: Plaintiffs fail to convincingly explain why the Court should 28 1 overlook their undue delay in seeking to add the new defendants. 2 Oppo. at 7 (emphasis in original).

3 A. Good Cause Pursuant to Rule 16(b) 4 The Court finds that Plaintiffs were reasonably diligent in seeking leave to amend 5 the Complaint. It is undisputed that on December 9, 2024, when the parties submitted their 6 Rule 26 Discovery Plan to the Magistrate Judge in advance of the Case Management 7 Conference, Plaintiffs’ counsel explicitly stated that she “anticipated filing a motion for 8 leave to amend the operative complaint [the FAC] to add the following defendants: (a) 9 Morad Shah, (b) CSUSM Vice President for Student Affairs, Dr. Viridiana Diaz, who was 10 in charge of the male and female athletic departments during the relevant time period; and 11 (c) CSUSM President Dr. Ellen Neufeldt, all of whom Plaintiffs believe to be decision 12 makers who may have been involved in the retaliation against Plaintiffs for exercising their 13 First Amendment rights.” ECF No. 11 at 3-4. Accordingly, Plaintiffs’ counsel has been 14 transparent in her intent to seek leave to amend her complaint to add new Defendants2 less 15 than four months within the filing of the original Complaint in this case. Plaintiffs argue 16 that “although Plaintiffs knew the identities and some of the actions of the newly named 17 Defendants at the time of the filing of the First Amended Complaint, Plaintiffs’ counsel 18 had to ensure Plaintiffs had sufficient evidence before involving the additional Defendants 19 as parties to the lawsuit pursuant to the Federal Rules of Civil Procedure, Rule 11.” Reply 20 at 2. 21 The Court in this case is faced with competing Declarations from the parties’ 22 respective counsel about when Plaintiffs’ counsel had sufficient information to file the 23 instant Motion to Amend. For example, Defendants’ counsel attests in his Declaration that 24 25

26 2 Although Plaintiffs’ counsel did not initially state in the Rule 26 Discovery Plan that she also intended 27 to add the Renaissance Search and Consulting LLC and Mr. Adam Gordon as Defendants, Plaintiffs argue in the Reply that the extent of their involvement became clear during Plaintiffs’ counsel investigation of 28 1 Plaintiffs were provided with copies of the investigation reports in February 2024. See 2 Goodwin Decl. ¶ 9. Plaintiffs’ counsel attests in her Declaration that “[a]t the time [she] 3 filed the Complaint, [she] did not have all of the investigatory materials as [she] had to 4 obtain them through BJ Foster’s previous attorney” and that “after reviewing the materials, 5 [she] became aware that there would be a need to amend the complaint [to] add additional 6 Defendants.” Moore Decl. ¶ 3. Although it is a close call, especially considering these 7 competing declarations, the Court finds it reasonable that Plaintiffs spent some time 8 investigating and gathering sufficient evidence to assert its claims against the additional 9 Defendants. See e.g., DCD Programs, Ltd. v. Leighton,

(finding no 10 “unjust delay” where plaintiffs waited to move to amend to add a party as a defendant “until 11 they had sufficient evidence of conduct upon which they could base claims of wrongful 12 conduct”). 13 In sum, the Court finds that Plaintiffs were reasonably diligent in seeking to amend 14 the FAC to add the additional Defendants and thus have shown good cause to amend after 15 the deadline has passed. Johnson,

. 16 B. Factors for Rule 15 Amendment 17 Plaintiffs contend that it meets all five factors that courts consider in deciding a 18 motion for leave to amend under Rule 15. Mot. at 6-10. Defendants argue that Plaintiffs 19 have delayed in bringing their Motion, that Plaintiffs’ proposed amendments are futile, and 20 Defendants would be prejudiced in having to spend additional time and resources in 21 responding to a third complaint. Oppo. at 7-8. 22 a. Undue Delay 23 “Relevant to evaluating the delay issue is whether the moving party knew or should 24 have known the facts and theories raised by the amendment in the original pleading.” 25 Jackson v. Bank of Hawaii,

(9th Cir. 1990). 26 For all the reasons discussed above in deciding diligence and good cause under 27 Rule 16(b), the Court finds Plaintiffs were not sufficiently aware of the additional 28 Defendants roles in the underlying litigation when it filed its FAC and did not unduly delay 1 in moving to amend to add the additional Defendants. See supra 2 Section III.A. 3 b. Prejudice 4 Defendants argue that they will suffer prejudice if leave to amend is granted because 5 “the Court’s Scheduling Order carefully limited the amount of discovery allowed in this 6 case, see ECF No. 13, and Defendants have already served close to the number of requests 7 and interrogatories allotted based upon the claims and allegations asserted in the FAC.” 8 Oppo. at 18. Defendants state that they “will need permission to conduct a significant 9 amount of additional discovery to address the claims against new defendants and the new 10 allegations in the SAC” which will “increase the time and costs attendant to such discovery 11 efforts…” Id. 12 The Court finds Defendants have not shown they will incur substantial prejudice. 13 Although the Scheduling Order may need to be slightly modified to allow for some 14 additional requests for production and interrogatories, the additional Defendants have 15 already been involved in the litigation and adding them does not substantially alter the 16 nature of the litigation. See Cervantes v. Zimmerman, No. 17-CV-1230-BAS-NLS, 17

, at *14 (S.D. Cal. Mar. 12, 2019) (“Prejudice is minimal when the 18 proposed amendment is consistent with discovery that has already occurred.”). 19 The Court does not find the increased cost, time, and discovery would be so great as 20 to prevent amendment in this situation where the additional Defendants have already been 21 known by the Plaintiffs, their names have already been exchanged in the significant 22 discovery already exchanged in this case, and the proposed amendments will not 23 significantly change the nature of the case. See e.g., DCD Programs,

187 (finding no prejudice to newly added defendant because the case was still in discovery 25 with no pending trial date). 26 / / / 27 / / / 28 / / / 1 3. Futility of Amendment 2 Defendants argue extensively in their Opposition whether the proposed amendments 3 futile. See Oppo. at 18-27. However, the Court finds that Defendants’ arguments are 4 ||more appropriately brought in a responsive pleading to the SAC. 5 4. Weighing Factors 6 There is no evidence of bad faith in this case, and for the reasons stated herein, the 7 ||Court finds that there is no undue delay, no substantial prejudice, and no futility of 8 |}amendment. In sum, the Court finds its assessment of the factors to weigh in favor of 9 || granting leave to amend. 10 CONCLUSION 11 For the reasons set forth above, the Court GRANTS Plaintiffs’ Motion to File the 12 ||SAC as set forth as Exhibit A to Plaintiffs’ Motion. See ECF No. 16. Plaintiffs are 13 |} ORDERED to file a clean copy on the docket on or before May 9, 2025. 14 IT IS SO ORDERED. 15 Dated: May 6, 2025 NO 16 DE | 17 Honorable Linda Lopez 8 United States District Judge 19 20 21 22 23 24 25 26 27 28