FILED

NOT FOR PUBLICATION

MAR 16 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELISSA A. REIMER, No. 20-35362

Plaintiff-Appellant, DC No. 2:17-cv-0384-RAJ

v.

MEMORANDUM*

SNOHOMISH COUNTY FIRE

DISTRICT NO. 1, an agent of Snohomish County; BRAD REDDING, an agent and employee of Snohomish County, in his official capacity and individually,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted March 1, 2021 Seattle, Washington

Before: TASHIMA, RAWLINSON, and BYBEE, Circuit Judges. Concurrence by Judge RAWLINSON

Plaintiff Melissa Reimer appeals the judgment in favor of Defendants

Snohomish County Fire District No. 1 and Brad Redding on her claims of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. employment discrimination under the Americans With Disabilities Act (“ADA”),

the Washington Law Against Discrimination, and her claims of intentional and

negligent infliction of emotional distress under Washington tort law. We have

jurisdiction under 28 U.S.C. § 1291. We review the grant of summary judgment de

novo, Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015), and

denial of leave to amend for an abuse of discretion, Hall v. City of Los Angeles,

697 F.3d 1059, 1072 (9th Cir. 2012). We reverse and remand for further

proceedings.

1. The district court erred by granting summary judgment to Defendants

on Reimer’s state law claims. Revised Code of Washington (“RCW”) § 4.96.020

provides that “[l]ocal governmental entities shall make available the standard tort

claim form described in this section [or its own tort claim form in lieu of the

standard tort claim form] with instructions on how the form is to be presented and

the name, address, and business hours of the agent of the local governmental

entity.” RCW § 4.96.020(3)(c). The statute further provides that “[t]he failure of

a local governmental entity to comply with the requirements of this section

precludes that local governmental entity from raising a defense under this chapter.”

Id. § 4.96.020(2).

2 In her opposition to Defendants’ motion for summary judgment, Reimer

placed Defendants’ compliance with § 4.96.020(3) at issue. “Plaintiff contends

there is no tort claim form that Defendants have filed that reflects that it comports

with the statutory requirements outlined [in] RCW 4.96.020(3) and that the tort

claim form of Snohomish County Fire District #1 in 2015 parallels the State Tort

Claim Form [promulgated by] Washington State’s Office of Risk Management,

Department of Enterprise Services.” In response, Defendants presented no

evidence to demonstrate their compliance with § 4.96.020(3). Accordingly, under

the statute, Defendants are precluded from relying on Reimer’s failure to file a

notice of claim as an affirmative defense in this litigation. See RCW § 4.96.020(2).

RCW § 4.96.020(3)(d) is not to the contrary. Subsection (3)(d) applies

when a governmental entity provides a claim form, but the form fails to require the

relevant information or incorrectly lists the agent with whom the claim is to be

filed. Id. Here, however, Defendants have not shown that they provided a claim

form at all. RCW § 4.96.020(3)(d), therefore, does not apply. See Fast v.

Kennewick Pub. Hosp. Dist., 354 P.3d 858, 863–66 (Wash. Ct. App. 2015), rev’d

on other grounds, 384 P.3d 232 (Wash. 2016) (en banc).

2. The district court abused its discretion by denying Reimer leave to

amend her complaint with respect to her ADA claim. Claims of employment

3 discrimination fall under Title I of the ADA, 42 U.S.C. §§ 12111–17. This is true

regardless of whether the defendant is a private employer or, as here, a public

employer. See Bass v. County of Butte, 458 F.3d 978, 980 (9th Cir. 2006)

(explaining that “Title I prohibits public and private employers from discriminating

against qualified individuals with disabilities in employment practices”). Here,

Reimer’s pleadings correctly cited “42 U.S.C. § 12111” (which is a part of Title I),

but mistakenly referred to “Title III.” Based on the pleadings’ mistaken reference

to Title III, Defendants moved for summary judgment on the claim. In response,

Reimer sought leave to amend her first amended complaint, describing the

pleadings’ reference to Title III as a “scrivener’s error.” The district court denied

leave to amend, noting that the case had been pending for three years, the deadline

for amending the pleadings had passed, and a motion for summary judgment was

pending.

“Courts may decline to grant leave to amend only if there is strong evidence

of ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to

the opposing party by virtue of allowance of the amendment, [or] futility of

amendment, etc.’” Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma County, 708

F.3d 1109, 1117 (9th Cir. 2013) (alteration in original) (quoting Foman v. Davis,

4 371 U.S. 178, 182 (1962)). “[T]he consideration of prejudice to the opposing party

. . . carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

1048, 1052 (9th Cir. 2003) (per curiam).

Here, there was no evidence of undue delay, bad faith, or dilatory motive on

the part of Reimer. Reimer promptly sought to correct the pleadings’ mistaken

reference to Title III as soon as the error was brought to her attention. It is well

established, moreover, that “[d]elay alone does not provide sufficient grounds for

denying leave to amend.” Hurn v. Ret. Fund Tr. of Plumbing, Heating & Piping

Indus. of S. Cal., 648 F.2d 1252, 1254 (9th Cir. 1981). And a scheduling order can

be amended upon a showing of good cause. See Coleman v. Quaker Oats Co., 232

F.3d 1271, 1294 (9th Cir. 2000).

Nor does this case involve repeated failure to cure deficiencies by

amendments previously allowed. Although Reimer had amended her complaint

once before, that amendment had nothing to do with the complaint’s mistaken

reference to Title III. Reimer was seeking her first opportunity to cure this error,

and, as noted, she sought that opportunity as soon as she was made aware of it.

Finally, Defendants have not shown, or even attempted to show, that they

would be prejudiced by the amendment. There certainly is no evidence that

Defendants relied to their detriment on the pleadings’ reference to Title III. In fact,

5 in an earlier motion to dismiss Reimer’s ADA claim, Defendants plainly construed

the claim as arising under Title I and challenged it on that basis. Defendants there

argued that “Plaintiff does not assert facts sufficient to give rise to a cognizable

claim under 42 U.S.C. § 12111 et seq.” (Emphasis added.)

• ! •

The judgment of the district court is reversed and the case is remanded for

further proceedings consistent with this disposition

REVERSED and REMANDED.

6

FILED

Reimer v. Snohomish Cty. Fire Dist. No. 1, Case No. 20-35362

MAR 16 2021

Rawlinson, Circuit Judge, concurring:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result.

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