Cojocaru v. Merck Sharp & Dohme LLC et al

1
24cv1770-W-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
RADU COJOCARU,
Plaintiff,
v.
MERCK SHARP & DOHME LLC,
Defendant.
Case No.: 24cv1770-W-KSC
ORDER GRANTING MOTION FOR
LEAVE TO FILE SECOND
AMENDED COMPLAINT [DOC. 39]
Before the Court is Radu Cojocaru’s (“Plaintiff”) motion for leave to file a second
amended complaint (“SAC”). (Mtn. Amend [Doc. 39].) Merck Sharp & Dohme LLC
(“Defendant”) filed an opposition (Opp’n [Doc. 55]), and Plaintiff filed a reply (Reply
[Doc. 56]). The Court decides the matter on the papers submitted and without oral
argument pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, the
Court GRANTS the motion [Doc. 39].
I. 	BACKGROUND
Plaintiff initiated this action by filing a complaint in San Diego Superior Court,
which was removed to this Court based on diversity jurisdiction. (Compl. [Doc. 1].) Shortly
after the removal, Plaintiff filed a first amended complaint (“FAC”). (FAC [Doc. 5].)
Plaintiff was employed by Defendant as a Principal Scientist/Director of Bioinformatics
Case 3:24-cv-01770-W-KSC Document 73 Filed 02/06/26 PageID.<pageID> Page
1 of 8

2
24cv1770-W-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
beginning in December 2023 and was terminated from the position in June 2024. (FAC at
2.) Plaintiff alleges several causes of action against Defendant, including violation of
California labor code, breach of contract, wrongful termination of employment in violation
of public policy, and defamation. (See FAC.) Plaintiff now seeks to amend the FAC:
(a) to add facts in support of his existing causes of action for violation of
California Labor Code § 1198.5, for breach of contract, and for wrongful
termination in violation of public policy . . . . (b) to add legal theories in
support of his existing causes of action for breach of Labor Code § 1198.5,
breach of contract, and wrongful termination in violation of public policy,
specifically the doctrines of forfeiture/waiver of argument, unconscionability,
and right to privacy; and (c) to clarify the damages sought for loss of severance
or separation pay based on Defendant’s production of its applicable policy
after the filing of litigation.
(Mtn. Amend at 3-4.) Defendant argues that Plaintiff’s motion should be denied because it
involves “undue delay,” the parties have exchanged “voluminous discovery,” and the
amendment would cause “substantial prejudice to Defendant,” which Defendant claims
“signals bad faith.” (Opp’n at 2.) Defendant also argues that the amendment would be futile
because it is based on a legal theory that has “already been rejected by California courts.”
(Id.)
II. 	STANDARD
Federal Rule of Civil Procedure 15(a) provides that after a responsive pleading has
been served, a party may amend its complaint only with leave of court, and leave “shall be
freely given when justice so requires.” Fed. R. Civ. P. 15(a). Granting leave to amend rests
in the sound discretion of the district court. Pisciotta v. Teledyne Industries, Inc., 91 F.3d
1326, 1331 (9th Cir. 1996). Although leave to amend is not to be granted automatically,
the rule should be interpreted with extreme liberality. Jackson v. Bank of Hawaii, 902 F.2d
1385, 1387 (9th Cir. 1990) (citations omitted). Five factors are considered to assess the
propriety of a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to
Case 3:24-cv-01770-W-KSC Document 73 Filed 02/06/26 PageID.<pageID> Page
2 of 8

3
24cv1770-W-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the opposing party, (4) futility of amendment, and (5) whether the plaintiff has previously
amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).
III. 	D ISCUSSION
A. 	Bad Faith and Undue Delay
Plaintiff argues that the above factors favor granting leave to amend. (Mtn. Amend
at 5.) Plaintiff asserts that he “lacked knowledge” of the “clarifying facts and additional
legal theories or doctrines” included in the proposed SAC because “Defendant wrongfully
withheld documents relating to his termination prior to ligation” and continued to do so
during discovery until ordered by Magistrate Judge Crawford to produce them unredacted.
(Id.) Plaintiff further states that he was “severely handicapped” in filing the original
complaint and FAC due to the absence of employment records relating to his termination
and Defendant’s conflict-of-interest-policy. (Mtn. Amend Dec. [Doc. 39-1] at 2.)
Defendant opposes leave to amend on the ground that Plaintiff has been in
possession of the information underlying the proposed amendments for many months,
which “reflects strategic gamesmanship rather than a good-faith effort” to respond in a
timely manner to facts allegedly discovered. (Opp’n at 2-8.) Defendant explains that its
conflict-of-interest policy was produced as part of its initial disclosures on December 11,
2024. (Opp’n Dec. [Doc. 55-1] at 2.) Plaintiff does not dispute receiving the policy and
termination related records on that date, but he contends that the production was “very
selective” and did not include other requested documents. (Mtn. Amend Dec. at 2.) Plaintiff
maintains that he did not receive the remaining documents until April 2, 2025, and that on
June 30, 2025, Magistrate Judge Crawford ordered Defendant to produce the documents
unredacted and designated “FOR COUNSEL ONLY.” (Id.)
The record reflects, however, that the June 30, 2025, discovery order pertained to
materials containing confidential trade secrets. (See Disc. Order [Doc. 37].) Plaintiff
moreover acknowledges that the proposed amendment was prompted, not by the belated
discovery of new facts, but by his review of Defendant’s already produced documents and
Case 3:24-cv-01770-W-KSC Document 73 Filed 02/06/26 PageID.<pageID> Page
3 of 8

4
24cv1770-W-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendant’s questioning of Plaintiff during his May 1 deposition, after which Plaintiff
concluded that Defendant was applying a “broad and vague” conflict-of-interest policy in
an “unconscionably unfair and intrusive manner,” and he then “immediately prepared the
proposed Second Amended Complaint.” (Mtn. Amend Dec. at 2.) Therefore, the motion to
amend rests on a new interpretation of information that had been in Plaintiff’s possession
for months. While that assessment may assist with new legal strategy, it does not, on its
own, explain the timing of the motion or justify undue delay.
Undue delay 	may be found where a party 	fails 	to 	act 	promptly 	under the
circumstances. See Pruco Life Ins. Co. v. California Energy Dev., Inc., No. 18-CV-2280
DMS (AHG), 2020 WL 4345330, at *2 (S.D. Cal. July 29, 2020). Here, Plaintiff could
have sought leave to amend shortly after receiving the conflict-of-interest policy and
related documents in December 2024. Instead, Plaintiff waited almost seven months before
filing the present motion. Additionally, Plaintiff fails to explicitly identify any specific
documents or information produced after the initial disclosures that were essential to the
new claims and theories asserted in the proposed SAC. (Mtn. Amend Dec. at 2.) Apart from
Plaintiff’s post-deposition realization, the record does not support a justification for the
delay.
Accordingly, while the Court does not find that Plaintiff acted in bad faith, it
concludes that the motion to amend is the product of undue delay. However, “undue delay,
alone, is insufficient to justify denying a motion to amend.” Owens v. Kaiser Found. Health
Plan, Inc., 244 F.3d 708, 712–13 (9th Cir. 2001).
B. 	Prejudice to Opposing Party
The Ninth Circuit has stated that, of the factors, “prejudice to the opposing party []
carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052
(9th Cir. 2003). The party opposing the amendment bears the burden of showing prejudice.
DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186–87 (9th Cir. 1987). “Absent prejudice,
or a strong showing of any of the remaining [] factors, there exists a presumption under
Case 3:24-cv-01770-W-KSC Document 73 Filed 02/06/26 PageID.<pageID> Page
4 of 8

5
24cv1770-W-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC, 316 F.3d at 1052
(emphasis in original).
Here, Defendant asserts prejudice because it “completed Plaintiff’s deposition based
on the allegations in the FAC” and would have to either forfeit examination on newly
alleged issues or seek leave of court to reopen the deposition. (Opp’n at 6-7.) Defendant
further argues that granting leave to amend would “inject new factual and legal issues on
the eve of the discovery deadline,” forcing it to reallocate resources from “summary
judgment preparation” to renewed discovery efforts. (Id.)
These concerns are unpersuasive. To eliminate any claimed prejudice, the Court will
permit Defendant to redepose Plaintiff, as requested, within thirty days of the issuance of
this Order, with discovery reopened for that limited purpose. (See Opp’n at 7 n.1.) In
addition, the discovery schedule does not change the analysis. When Plaintiff moved for
leave to file a SAC on July 7, 2025, fact discovery was then scheduled to close on July 25,
2025. (Mtn. cont. disc. [Doc. 40] at 1.) Two days later, however, the parties jointly moved
to continue the discovery cutoff, (id.,) and on July 10, 2025, the Magistrate Judge granted
that request, extending discovery through September 23, 2025. (Order [Doc. 41].) In effect,
more than two months of fact discovery remained after Plaintiff filed for leave to amend.
Further, 	the 	Court 	previously 	anticipated 	that 	amendment 	could 	require 	limited
adjustments to the discovery schedule. (Id.)
Courts have explained that when discovery is open, a defendant “is not precluded
from carrying out additional discovery to investigate the claims in the amended complaint”
and therefore “is not prejudiced by amendment of the complaint.” Oliver v. In-N-Out
Burgers, 286 F.R.D. 475, 477 (citing Johnson v. Mammoth Recreations, Inc., 356 F.3d
1067, 1077 (9th Cir. 2004)). Here, any additional discovery required by amendment would
be minimal. The newly asserted constitutional theory comes from Defendant’s conflict-of-
interest policy, which has been in both parties’ possession since December 2024. (Opp’n
at 3.) See Entangled Media, LLC v. Dropbox Inc., 348 F.R.D. 649, 656 (declining to find
undue prejudice where amendment would require limited additional discovery, including
Case 3:24-cv-01770-W-KSC Document 73 Filed 02/06/26 PageID.<pageID> Page
5 of 8

6
24cv1770-W-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a single deposition and supplemental disclosures, because such steps are “ordinary burdens
of litigation.”).
With this context, Defendant’s reliance on Miramontes v. Mills is misplaced. (Opp’n
at 6-7). In Miramontes, the defendant contended that amendment would be prejudicial
because it would require reconsideration of her “entire defense strategy” and require
“voluminous additional discovery.” 2015 WL 13609449, at *3 (C.D. Cal. 2015). The court
rejected that contention and granted leave to amend, emphasizing that the proposed claims
were based on the same underlying factual allegations as the original complaint and
therefore involved “few, if any, new facts.” Id. at *4. Because “[t]he case remain[ed]
essentially the same,” the court found the defendant’s assertions of extensive new
discovery unpersuasive and explained that the need to conduct limited additional discovery
does not, standing alone, establish prejudice. Id. Importantly, the court found no prejudice
where nearly three months of fact discovery remained. Id.
Here, as in Miramontes, the proposed amendment does not inject new factual
theories into the case and would require little to no new factual discovery. Although
Defendant challenges the timing of discovery, more than two months of fact discovery
remained, comparable to the period the Miramontes court found sufficient to accommodate
any minor changes. (See Order.)
The other cases cited by Defendant do not warrant a different outcome. In Schlacter-
Jones v. General Telephone, the court denied leave to amend only after discovery had
closed and summary judgment motions were fully briefed. 936 F.2d 435, 443 (9th Cir.
1991). Similarly, in Solomon v. North American Life & Casualty Insurance Co., the
plaintiff sought amendment just two weeks before the discovery cutoff. 151 F.3d 1132,
1139. In 	Quan v. San Francisco Police Department, 	both defendants had already
completed and filed summary judgment motions before the plaintiff moved for leave to
amend. 2011 WL 2470477, at *6 (N.D. Cal. 2011). Accordingly, the lack of prejudice
weighs in favor of allowing Plaintiff to amend their complaint.
/ / / /
Case 3:24-cv-01770-W-KSC Document 73 Filed 02/06/26 PageID.<pageID> Page
6 of 8

7
24cv1770-W-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C. 	Futility and Previous Amendments
The last two factors consider whether the amendment would be futile, and the
number of previous amendments requested by the moving party. Leave to amend should
only be denied as futile in the narrow circumstance where “no set of facts can be proved
under the amendment to the pleadings that would constitute a valid and sufficient claim or
defense.” Barahona v. Union Pac. R.R., Co., 881 F.3d 1122, 1134 (9th Cir. 2019). Further,
“[a] proposed amendment is not futile if it is likely to survive a Rule 12(b)(6) motion to
dismiss.” Uyeno v. Gen. Motors, LLC, No. 3:23-CV-1555-L-JLB, 2024 WL 3823987, at
*1 (S.D. Cal. Aug. 14, 2024) (citing Sonoma County Assoc. of Retired Employees v.
Sonoma County, 708 F.3d 1109, 1118 (9th Cir. 2013). Because futility is evaluated under
the Rule 12(b)(6) standard, that review is limited and “does not permit the court to weigh
evidence or resolve factual disputes.” In re Packaged Seafood Prods. Antitrust Litig., 338
F. Supp. 3d 1079, 1106–07 (citing Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th
Cir. 1988)).
Consistent with this demanding standard, courts generally decline to adjudicate the
substantive merits of a proposed amendment when deciding a motion for leave to amend,
instead deferring such challenges until after amendment. In re Packaged Seafood Prods.
Antitrust Litig., 338 F. Supp. 3d 1079, 1106-1107 (noting the “general preference against
denying a motion for leave to amend based on futility”). “Arguments concerning the
sufficiency of the proposed pleadings, even if meritorious, are better left for briefing on a
motion to dismiss.” Lillis v. Apria Healthcare, 2012 WL 4760908, at *1 (S.D. Cal. Oct. 5,
2012).
Here, Plaintiff has plead sufficient facts, assumed true at this stage, to establish the
elements of California’s right to privacy cause of action.1 (Mtn. Amend at 14-15). Any
1 In Hill v. National Collegiate Athletic Association, the California Supreme Court confirmed that
the Privacy Initiative in article I, section 1 of the California Constitution “creates a right of action against
private as well as government entities.” 7 Cal. 4th 1, 20. A plaintiff alleging a violation of the state
constitutional right to privacy must plead and ultimately establish three elements: “(1) a legally protected
Case 3:24-cv-01770-W-KSC Document 73 Filed 02/06/26 PageID.<pageID> Page
7 of 8

8
24cv1770-W-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
dispute as to whether those elements are ultimately satisfied presents substantive questions
of fact and law, which this Court declines to resolve on a motion to amend. Because nothing
suggests these claims are meritless, they are not futile for purposes of allowing an
amendment.
Additionally, this is the first time Plaintiff has asked for an amendment, besides as a
matter of right, so this is not a case where the plaintiff has repeatedly failed to correct the
complaint. (Mtn. Amend at 3.) Therefore, these final two factors weigh in Plaintiff’s favor.
IV. 	C ONCLUSION & ORDER
For the reasons stated above, Plaintiff’s motion for leave to amend to file a second
amended complaint [Doc. 39] is GRANTED. Plaintiff shall file the second amended
complaint no later than February 12, 2026. Defendant is permitted to redepose Plaintiff
within 30 days of this order, and discovery is reopened solely for that purpose.
IT IS SO ORDERED.
Dated: February 6, 2026
privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by
defendant constituting a serious invasion of privacy.” Id. at 39–40. Whether a legally recognized privacy
interest exists is a question of law for the court, while whether the plaintiff had a reasonable expectation
of privacy and whether the defendant’s conduct amounted to a serious invasion are mixed questions of
law and fact. Id. Where the undisputed facts demonstrate no reasonable expectation of privacy or only an
insubstantial intrusion, the claim may be resolved as a matter of law. Id.
Case 3:24-cv-01770-W-KSC Document 73 Filed 02/06/26 PageID.<pageID> Page
8 of 8