United States District Court, D. Utah, Central Division
LISA C. PETERSON, Plaintiff,
SCIS AIR SECURITY CORP., and LSG SKY CHEFS, INC. Defendants.
MEMORANDUM DECISION AND ORDER
SAM, SENIOR JUDGE UNITED STATES DISTRICT COURT.
Lisa C. Peterson moves the Court for leave to file a
Supplemental Amended Complaint under Federal Rule of Civil
Procedure 15(d). (Doc. #37) . As Defendant LSG Sky Chefs,
Inc. (“Sky Chefs”) notes, that rule allows
parties to supplement a complaint with new incidents that
post-date the initial complaint's filing. However, none
of Ms. Peterson's factual allegations in the SAC concern
conduct that occurred after this case was filed. Her Motion
under that rule, therefore, is improper. See Eid v.
Alaska Airlines, Inc., 621 F.3d 858, 874 (9th
Cir. 2010), cert. denied, 563 U.S. 974 (2011)
(affirming denial of motion to add claims under Rule 15(d)
when they arose from conduct which happened nearly a year
before the plaintiffs filed their first complaint).
in the interest of justice the Court will construe Ms.
Peterson's Motion as one to amend under Rule
15(a). For that same reason the Court will not
adopt Sky Chef's position that the Motion must be denied
for reasons of undue delay. Additionally, the Court is not
persuaded that Sky Chefs will be unduly prejudiced if the
Motion is granted.
Court, however, finds merit in Sky Chefs' position that
Ms. Peterson's Motion to Amend is subject to denial in
part for reasons of futility. The Third Claim for Relief set
forth in the Supplemental Amended Complaint
(“SAC”) (Doc. #38) is for Negligent Supervision
and Retention by Sky Chefs. Ms. Peterson continues to assert
that Sky Chefs “negligently hired Jose Carreno, Hector,
Theodoro, Maleaola Fesolai [“Chola”], Villiami,
Qasam, Andy, Nick, Mohmmad [sic], Humberto, A.J. and others,
and it failed to exercise control or supervision over them,
and failed to timely put an end to the sexually hostile work
environment that they were causing the Plaintiff and other
female employees of SCIS ....” SAC ¶ 60. The Court
agrees with Sky Chefs that, “the SAC's new
allegations in Paragraphs 61-79 only discuss three
individuals: ‘Chola', A. J., and Jose Carreno.
Since the Complaint was already found to be deficient for
everyone [else] listed in paragraph 60, the SAC continues to
be deficient on its face for all but those three for whom the
SAC includes new allegations.” Mem. Opp'n at 9.
respect to the other three individuals named in the SAC, Sky
Chefs acknowledges that, but for being “untimely, the
allegations concerning Chola may have been sufficient to
survive a motion to dismiss”. Id. However Sky
Chefs asserts, and the Court agrees, that the same is not
true for the claims against A.J. and Jose Carreno. As to
those two employees Sky Chefs reasons as follows.
The SAC continues to ignore that only misconduct that occurs
after the employer is aware of reasons to act results in a
viable negligent employment claim. Here, Peterson asserts
that Sky Chefs was aware of an incident between her and A.J.
in September 2014, but provides no allegations of further
incidents between them in the Third Cause of Action.
Likewise, Plaintiff fails to provide any allegations of
incidents by Mr. Carreno that would post-date an altercation
between him and Peterson in May 2015. Since Peterson has not
alleged any incidents that occurred after Sky Chefs was
placed on notice of problems with these particular employees,
the negligent employment claim with respect to them fails to
state a claim for relief. Jackson v. Righter, 891
P.2d 1387, 1392 (Utah 1995); J.H. v. West Valley
City, 840 P.2d 15, 124 (Utah 1992).
Mem. Opp'n at 9-10.
Ms. Peterson's Motion for Leave to File a Supplemental
Amended Complaint under Rule 15(d), which the Court construes
as a Motion to Amend under Rule 15(a), is granted only as it
relates to Sky Chefs employee “Chola”. The Motion
is denied as it relates to Sky Chefs other employees for
reasons of futility.
 In March 2017, the Court
dismissed all of Ms. Peterson's claims against Sky Chefs.
However, her claim for Negligent Supervision and Retention
was dismissed without prejudice. In July 2017, Ms. Peterson
moved for leave to file an amended complaint, in part, to
re-plead the Negligent Employment claim. The Court denied her
motion as to Sky Chefs. This marks Plaintiff's third
attempt to plead her claim.
The Court in initially dismissing Ms. Peterson's Third
Claim for Relief stated:
It is undisputed that to prevail on a claim for negligent
employment, Ms. Peterson must show that: (1) Sky Chefs
“knew or should have known that its employees posed a
foreseeable risk of harm to third parties;” (2) Sky
Chefs' employees “inflicted such harm;” and,
(3) Sky Chefs' “negligent hiring, supervision, or
retention of the employees proximately caused the
injury”. See Jensen v. Gale, No.
1:13-cv-00030-DN, 2014 WL ...