Hillebrand et al v. United Parcel Service Incorporated

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Brian E Hillebrand, et al.,
Plaintiffs,
v.
United Parcel Service Incorporated,
Defendant.
No. CV-25-02220-PHX-DJH
ORDER
Before the Court is Plaintiff Brian E. Hillebrand’s (“Hillebrand”) Motion for Leave
to File his First Amended Complaint. (Doc. 34). Defendant United Parcel Service
Incorporated (“UPS”) has filed its Response opposing Hillebrand’s Motion for Leave to
File. (Doc. 35).1 The Court will grant Hillebrand’s Motion for Leave to Amend his
Complaint for all claims except his breach of contract claim.
I. Background
Hillebrand was a driver for UPS in two different departments when the actions
giving rise to this Complaint surfaced. (Doc. 34-1 at 4). When Hillebrand was not driving
1 Also pending on the docket is the parties Joint Motion to Consider Hillebrand’s Reply in
support of his Motion for Leave to File First Amended Complaint as timely filed. (Doc.
38). Hillebrand’s Reply was due on December 8, 2025. It was instead filed on December
9, 2025. Hillebrand states that counsel experienced technical difficulties as a result of an
ECF outage. Under Fed. R. Civ. P. 6(a)(3)(A), in the event of a party not being able to
access the clerk’s office, “[u]nless the court orders otherwise, if the clerk’s office is
inaccessible . . . on the last day for filing . . ., then the time for filing is extended to the first
accessible day that is not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(3)(A).
Inaccesiblity as it describes the clerk’s office, also includes an ECF outage. Holmes v.
Clark Cnty., 2025 WL 2421250, at *1 (D. Nev. Aug. 21, 2025) (stating as much).
Therefore, the Joint Motion (Doc. 38) is granted.
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for the “Package,” department, he could be found driving for the “Feeder” department. (Id.)
In his First Amended Complaint (“FAC”), Hillebrand alleges that he was wrongfully
terminated for a while (unrelated to his current claims), but that he returned to work in May
of 2022. (Id. at 13). When he returned, he was dismayed to find that Lytx cameras had
been fitted in the UPS delivery trucks in the Package department. (Id. at 13). After some
time, he states he started experiencing difficulties with his vision that included problems
with reading what was on his hand-held work device. (Id. at 14). Between October of 2023
and May of 2024, Hillebrand states he alternated between the Package and Feeder
departments. (Id. at 16). Both departments at this point had the Lytx cameras in their
trucks. (Id. at 15). Hillebrand states that his symptoms worsened and he pinpointed the
cause as the infrared light from the Lytx cameras. (Id. at 17). When he drove vehicles
with the Lytx cameras, he said he suffered from the following litany of symptoms: severe
eye strain, fatigue, and difficulty keeping his eyes open. (Id.) He states that he feared his
driving was unsafe and that he could not continue to operate trucks that had the cameras.
(Id. at 17–18). Eager to find a solution, Hillebrand states that he began covering the Lytx
cameras when driving his assigned vehicles. (Id. at 20). Not being exposed to the cameras
helped him, he contends. (Id.) His headaches and fatigue disappeared, and he could operate
a vehicle normally. (Id.)
But then another issue arose. He states that he received messages from UPS
warning him that covering or otherwise tampering with the cameras could result in his
termination. (Id. at 22). After that, Hillebrand states he filed a grievance stating that the
cameras were “dangerous to his health.” (Id. at 23). In response, he states he was told by
management that he needed to file an official Americans with Disabilities Act (“ADA”)
accommodation for his disability. (Id.) To file an ADA accommodation request, he
enlisted the help of his co-Plaintiff Jay V. Shore (“Shore”). (Id. at 30). His accommodation
request lists his disability as sensitivity to the infrared cameras outfitted in the UPS trucks.
(Id. at 32). Hillebrand specifically asked that UPS remove the cameras from all of their
trucks so that Hillebrand could continue to do his job. (Id. at 34). Once he started the
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process of meeting with representatives of UPS to determine the proper course forward, he
states that his “ADA advocate” and co-Plaintiff Shore, was not allowed to attend the
meetings. (Id. at 36). After this point, he states the interactive process of meeting with
management to resolve his disability accommodation broke down and he was effectively
terminated by being placed on indefinite unpaid leave. (Id. at 40–55). Now, Hillebrand
brings the following claims against UPS: (1) violation of the ADA under 42 U.S.C. §
12112(a); (2) failure to provide reasonable accommodation under 42 U.S.C. §
12112(b)(5)(A); (3) Interference with ADA rights under 42 U.S.C. § 12203(b) and 29
C.F.R. § 1630.12(b); (4) breach of contract; and lastly (5) ADA retaliation under 42 U.S.C.
§ 12203(a). (Id. at 16–22).
II. Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Under
Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint for “failure
to state a claim upon which relief can be granted.” Rule 12(b)(6) motions may be based on
either the lack of a cognizable legal theory or the absence of sufficient facts alleged under
a cognizable legal theory. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035,
1041 (9th Cir. 2010) (citation omitted).
To survive a Rule 12(b)(6) motion, the complaint “does not need detailed factual
allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 but “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”
Boquist v. Courtney, 32 F.4th 764, 773 (9th Cir. 2022) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). “A claim is facially plausible ‘when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’ ” Id. (quoting Iqbal, 556 U.S. at 678). “[A] plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550
U.S. at 555 (internal quotations omitted).
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The Court “must accept as true all factual allegations in the complaint and draw all
reasonable inferences in favor of the nonmoving party.” Retail Prop. Tr., 768 F.3d at 945.
But the Court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678.
III. Discussion
In his Motion to Amend, Hillebrand seeks to clarify some of his claims and add a
claim for ADA retaliation. The Court will grant Hillebrand leave to amend all his claims
except his breach of contract claim because the court finds that the breach of contract claim
is preempted by the Labor Management Relations Act (“LMRA”).
A. Motion to Amend
In opposing Hillebrand’s Motion to Amend, UPS argues that allowing Hillebrand
leave to amend his ADA interference claim would result in two operative complaints for
the same conduct. (Doc. 35 at 2–3). Essentially, the argument is that Hillebrand’s ADA
interference claim would go forward under Hillebrand’s FAC, while Shore would still be
left to pursue his own ADA interference claim under the Original Complaint. The second
argument advanced against amendment by UPS is futile. (Doc. 35 at 3). UPS argues that
allowing Hillebrand to bring an ADA interference claim for himself is preempted by
LMRA. (Id.) UPS argues the same against allowing the addition of Count five for ADA
retaliation because UPS “decided not to include Shore in certain ADA meetings before
Hillebrand engaged in the alleged October 2024 protected activity.” (Id. at 5). The
argument against allowing amendment for ADA retaliation gets at the nuances of
establishing casual connection between the protected activity and the adverse action. In
response, Hillebrand states that opposing a motion to amend is not the right time to assess
the merits of the underlying claims and instead, that should be done at the motion to dismiss
stage. (Doc. 36 at 3). While the Court agrees with Hillebrand that the amendment should
be granted, the Court disagrees that the sufficiency of the amendment should not be tested.
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While the district court maintains discretion to grant or deny a motion to amend, the
Rule specifies that such “leave shall be freely given when justice so requires.” Fed. R. Civ.
P. 15(a). See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330
(1971); United States v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir.2001)
(“A district court's discretion to deny leave to amend . . . is not absolute.”); California
Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1472 (9th
Cir.1987). When exercising its discretion, the courts should be guided by the underlying
purpose of Rule 15 to decide cases on the merits rather than on pleading technicalities.
Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.1987) (citations omitted). Moreover, Rule
15 favors amendments and the policy of allowing amendment should be applied with
“extreme liberality.” Id. There are, however, limitations on Rule 15’s liberal contours.
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Owens v. Kaiser Found., Health Plan,
Inc., 244 F.3d 708, 712 (9th Cir. 2001). The limitations include (1) undue delay; (2) bad
faith or dilatory motives on the part of the movant; (3) repeated failure to cure deficiencies
by previous amendments; (4) undue prejudice to the opposing party; (5) futility of the
proposed amendment. Foman, 371 U.S. at 182. Even keeping in mind the above factors,
the analysis should be performed with all inferences in favor of granting leave to amend.
Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir.1999).
1. Futility
A proposed amendment is futile if it could not withstand a motion to dismiss under
Fed. R. Civ. P. 12(b)(6). To withstand dismissal under Rule 12(b)(6), a plaintiff must put
forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007). Hillebrand has alleged enough to withstand a motion to
dismiss on all his claims except his breach of contract claim.
a. Hillebrand’s claim for an ADA violation under § 12112(a)
To state a prima facie case under § 12112(a), Hillebrand has to sufficiently allege
that he (1) had a disability within the meaning of the ADA; (2) that he was qualified for
the position; (3) and that UPS discriminated against Hillebrand because of his disability.
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See Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013).
Hillebrand alleges that he has a disability within the meaning of the ADA because
he has photosensitivity to infrared light which “substantially limits one or more major life
activities, including but not limited seeing, concentrating, working, and interacting with
others.” (Doc. 34-1 at ¶ 98). Immediately after that statement he provides the following
one: “Plaintiff Hillebrand was qualified for his position and could perform the essential
functions of his job with or without reasonable accommodation.” (Id. at ¶ 99). Then, he
states that he was discriminated against by UPS because he was removed “from service
indefinitely without pay.” (Id. at ¶ 101a). Accepting all factual allegations in the Complaint
as true, and drawing all inferences in Hillebrand’s favor, the Court finds that Hillebrand’s
claim for an ADA violation under § 12112(a) can survive a motion to dismiss. See Ashcroft,
556 U.S. at 678–79.
b. Hillebrand’s claim for failure to provide reasonable accommodation under
§ 12112(b)(5)(A)
A claim for failure to provide reasonable accommodation under the ADA requires
that the employee is a qualified individual under the ADA, provides the employer with
notice of their disability accommodation, and reasonable accommodation is available for
the employer to provide. 42 U.S.C. § 12112(b)(5)(A); Snapp v. United Transportation
Union, 889 F.3d 1088, 1095 (9th Cir. 2018). An accommodation is reasonable if it “would
not place an undue burden on the operation of the employer’s business.” Snapp, 889 F.3d
at 1095 (citing 42 U.S.C. § 12112(b)(5)(A)). Additionally, notifying an employer of a need
for accommodation, sets off a duty to engage in the interactive process in which the parties
discuss the “employee’s abilities and limitations, the employer’s needs for various
positions, and a possible middle ground for accommodating the employee.” Id.
According to Hillebrand, he is a qualified individual under the ADA. (Doc. 34-1 at
¶ 98); see also 42 U.S.C. § 12102(4)(A) (“[t]he definition of disability in this chapter shall
be construed in favor of broad coverage of individuals under this chapter, to the maximum
extent permitted by the terms of this chapter”). He states he provided notice to UPS about
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his disability. (Doc. 34-1 at ¶ 104); 42 U.S.C§ 12112(b)(5)(A). He argues that reasonable
accommodation, like providing Hillebrand with a lateral transfer or giving him a non-Lytx
camera outfitted truck to drive, was available for UPS to provide, and could have been used
to accommodate him. (Doc. 34-1 at ¶ 106–107). He was not provided accommodation and
UPS did not “engage in the interactive process in good faith.” (Doc. 34-1 at 108). Having
set forth enough facts for the Court to determine that Hillebrand has enough “plausible
factual allegations that cover all the material elements necessary to sustain recovery under
some viable legal theory,” his failure to provide accommodations claim survives a motion
to dismiss. See Twombly, 550 U.S. at 562 (citation omitted) (emphasis in original).
c. Hillebrand’s ADA Interference Claim2
In his proposed FAC, Hillebrand removes co-Plaintiff Shore from his ADA
interference claim. (Doc. 34-1 at 19–20). UPS does not attack Hillebrand’s proposed FAC
for futility. Instead, UPS states that Shore and Hillebrand should not be allowed to pursue
separate claims for ADA interference. According to UPS, the result that will ensue if
Hillebrand is allowed leave to amend, is that there will be two operative complaints, which
the rules simply do not allow. (Doc. 35 at 3). The Court disagrees that allowing Hillebrand
to proceed with his amendment would make it so that two operative complaints are at play.
First, Hillebrand has sufficiently pled enough facts, if taken as true, to make a
plausible claim for ADA interference. The ADA’s anti-interference provision states the
following:
It shall be unlawful to coerce, intimidate, threaten,
or interfere with any individual in the exercise or enjoyment
of, or on account of his or her having exercised or enjoyed, or
on account of his or her having aided or encouraged any other
individual in the exercise or enjoyment of, any right granted or
2 Though Jay V. Shore is listed in the title of the FAC, Shore has not joined Hillebrand’s
Motion to Amend. The FAC also does not list any claims brought by Shore. This is
important because the FAC will supersede the original Complaint, and because the FAC
makes no mention of any claim that Shore is bringing, nor has Shore responded to the
opposition to the FAC or filed anything with the Court since September 22, 2025, Shore
will be dismissed from this lawsuit. In fact, in his September Response to the Court’s Order
to Show Cause for failing to appear at the Court’s mandated Rule 16 Scheduling
Conference, Shore stated the following: “I, Jay V. Shore, refuse to say more, until good
faith is demonstrated by the Court concerning this matter.” (Doc. 26 at 3).
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protected by this chapter.
See 42 U.S.C. § 12203(b) (stating the above verbatim). Interference is interpreted broadly
by the Ninth Circuit but has also been left largely undefined. Brown v. City of Tucson, 336
F.3d 1181, 1191–93 (9th Cir. 2003) (stating both that interference should be construed
broadly, but also that “the ADA’s interference provision does not bar any action
whatsoever that in any way hinders a member of a protected class”). District courts that
have interpreted the ADA’s interference provision have interpreted it to mean any action
by an employer that deters or gives a reasonable employee pause about seeking
accommodations. Santos v. Cnty. of Humboldt, 2023 WL 6882748, at *7 (N.D. Cal. Oct.
18, 2023); Colasanti v. City of Portland, 2021 WL 4317286, at *6 (D. Or. Aug. 19, 2021),
report and recommendation adopted, 2021 WL 4317667 (D. Or. Sept. 20, 2021);
Castellano v. Access Premier Realty, Inc., 181 F. Supp. 3d 798, 809 (E.D. Cal. 2016).
Here, Hillebrand alleges that by not allowing his ADA advocate, Shore, at meetings
between UPS and Hillebrand, UPS effectively discouraged Hillebrand from pursuing his
ADA accommodation rights. (Doc. 34-1 at ¶¶ 110–117). While not the most factually
detailed allegation, the motion to dismiss standard does not require Hillebrand to populate
his FAC with ample facts. His FAC simply needs to plead “enough facts to state a claim
for relief that is plausible on its face.” Twombly, 550 U.S. at 570. Facial plausibility is not
an onerous standard. When the “plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged,”
facial plausibility is met. Ashcroft, 556 U.S. at 662. Moreover, UPS’s assertion that
allowing Hillebrand to amend his Complaint to remove Shore from his ADA interference
claim would result in two separate complaints, is unsupported. The FAC will supersede
the original Complaint and only Hillebrand’s ADA interference claim will go forward at
this time, not Shore’s. See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,
1546 (9th Cir.1990) (stating that an amended complaint supersedes its original complaint).
Therefore, the Court finds that Hillebrand has alleged enough for his ADA interference
claim to withstand a motion to dismiss.
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d. Breach of Contract
For the final contested claim, UPS asserts that Hillebrand’s breach of contract claim
is preempted by LMRA. (Doc. 35 at 3). UPS points to Hillebrand’s FAC where he mentions
the UPS National Master Agreement for 2023–2028 (otherwise referred to by the parties
as the “CBA”)3 . (Doc. 34-1 at ¶ 119; Doc. 35 at 4). He specifically mentions Article 6 of
the Agreement, which he argues “explicitly prohibits the installation of inward-facing
cameras in vehicles and the use of in-cab audio recording or videotaping.” (Doc. 34-1 at ¶
120). According to UPS, because he invoked the CBA, state law violations, like breach of
contract, are displaced by the LMRA, especially as applied to private bargaining contracts.
(Doc. 35 at 4). Alternatively, UPS also argues that Hillebrand’s breach of contract claim
is time-barred and that Hillebrand has failed to exhaust his administrative remedies. (Doc.
14 at 9–10). The Court agrees that the breach of contract claim is preempted by LMRA.
Section 301 of LMRA preempts state law claims that are rooted in rights that have
their genesis in a collective bargaining agreement. Beals v. Kiewit Pacific Co., Inc., 114
F.3d 892, 894 (1997). Also swept under LMRA’s preclusive effect are claims that are
substantially dependent on an interpretation of a collective bargaining agreement. Id.
Whereas independent employment contracts not formed on the basis of collective
bargaining are not preempted by LMRA, even if a collective bargain agreement is in place.
Id.
Here, Hillebrand’s breach of contract claim is entirely planted in the CBA. (Doc.
34-1 at ¶ 56–57; see also Doc. 1-1 at 24, Ex. H, Article 6 of the CBA). Determining this
issue would require the Court to interpret the CBA governing Hillebrand’s employment
relationship with UPS. And that, the Court cannot do. Case law is clear on this point. The
first Supreme Court case to address section 301 of LMRA was Textile Workers. See Textile
Workers v. Lincoln Mills, 353 U.S. 448 (1957) (providing guidance on the reach of section
301 of LMRA). In plain terms, the Supreme Court stated that “[f]ederal law, which the
courts must fashion from the policy of our national labor laws,” controls in cases that touch
3 For consistency, the Court will also refer to it as the Collective Bargaining Agreement or
CBA.
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on section 301 of LMRA. Id. at 456. The Supreme Court refined this analysis even more
in Teamsters. See Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962) (analyzing the
preclusive effects of section 301). Ultimately, the Court held that a suit alleging a violation
of a provision of a labor contract must be brought under section 301 and be resolved under
federal law. Id. at 102–105.
In his Complaint, Hillebrand, under his breach of contract claim, mentions the CBA
no fewer than three times. (Doc. 34-1 at ¶ 56–58). He cites no other contract under which
he can bring his breach of contract claim. Because Hillebrand has brought a simple breach
of contract claim, with no reference to section 301, the Court cannot decide the issue as it
has been brought to the Court. Therefore, this claim will be dismissed because a simple
state law breach of contract claim is not legally viable.
e. Hillebrand’s ADA Retaliation Claim
Hillebrand has also sufficiently pled enough facts, if taken as true, to make a
plausible claim for ADA retaliation. In opposing the addition of Count V, UPS argues that
Hillebrand cannot establish a causal link between the apparent protected activities and
UPS’s alleged retaliation. (Doc. 35 at 5).
The ADA’s retaliation provision states the following: “No
person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by
this chapter or because such individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.”
42 U.S.C. § 12203(a). A prima facie case for retaliation under the ADA requires an
employee to show the following: (1) he engaged in a protected activity; (2) suffered an
adverse employment action; (3) causal link between the two. Brown v. City of Tucson, 336
F.3d 1181, 1186–87 (9th Cir. 2003).
Hillebrand has alleged a facially plausible prima facie case to withstand a motion to
dismiss. While UPS focuses its opposition to this claim on the causal connection between
the protected activity and the adverse action, at this stage, Hillebrand only needs to
adequately plead all three elements in a way that allows the Court to draw a reasonable
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inference that he was retaliated against. Boquist, 32 F.4th at 773. By lodging an EEOC
complaint, Hillebrand engaged in a protected activity. (Doc. 34-1 at 126; See, e.g.,
McAlindin v. County of San Diego, 192 F.3d 1226, 1238 (9th Cir.1999) (stating that
“vigorously asserting [one's] rights” under the ADA and other state and federal
discrimination laws constitutes protected activity)); Hashimoto v. Dalton, 118 F.3d 671,
679–80 (9th Cir.1997) (determining that meeting with an Equal Employment Opportunity
counselor to discuss sex and race discrimination constitutes protected activity). He then
claims he suffered an adverse employment action when he was indefinitely placed on
unpaid leave. (Doc. 34-1 at 128; Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000)
(defining adverse employment action as any action “reasonably likely to deter employees
from engaging in protected activity.”)). He alleges that in consequence for exercising his
ADA rights by seeking accommodation, he was effectively terminated. (Doc. 34-1 at 128–
129). Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (standing for the proposition
that when adverse employment decisions closely follow complaints of discrimination,
retaliatory intent may be inferred). The allegations set forth by Hillebrand suffice to resist
a motion to dismiss.
2. Undue Delay
While undue delay on its own is insufficient to deny a motion to amend a complaint,
it is one part of the general consideration used by the courts to determine if amendment
should be granted. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir.1999). “Relevant to
evaluating the delay issue is whether the moving party knew or should have known the
facts and theories raised by the amendment in the original pleading.” Jackson v. Bank of
Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990). Also relevant is if the amended pleading will
refine and clarify the issues before the court. Cuevas v. City of San Luis, Ariz., 2008 WL
4820113, at *2 (D. Ariz. Nov. 3, 2008).
In favor of his Motion to Amend and to address the undue delay factor, Hillebrand
states the following: “Plaintiff is seeking to amend his complaint within the time allowed
by the Court’s Scheduling Order, and before any substantial discovery has been
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conducted.” (Doc. 34 at 3). Discovery has not yet been substantially completed in this
case, and because leave to amend should be liberally granted, the Court finds that there was
no undue delay on the part of Plaintiffs in amending their Complaint. Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.2001) (quoting Morongo Bank of
Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)).
3. Bad Faith
A showing of bad faith is supported when it can be demonstrated that plaintiff’s
motives for amending the complaint were for an improper purpose. Eminence Cap., LLC
v. Aspeon, Inc., 316 F.3d 1048, 1053 (9th Cir. 2003). Nothing in Hillebrand’s pleadings
suggest that Hillebrand is acting in bad faith and UPS has not suggested that he is. Finding
no bad faith, the Court will move on to the prejudice factor.
4. Prejudice
Prejudice to the opposing party carries the greatest weight in determining whether
leave to amend should be granted, despite its liberal applicability. DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 185 (9th Cir.1987). Prejudice to the opposing party is the
“touchstone of the inquiry under rule 15(a).” Lone Star Ladies Inv. Club v. Schlotzsky's
Inc., 238 F.2d 363 368 (5th Cir.2001); Howey v. United States, 481 F.2d 1187, 1190 (9th
Cir.1973) (stating that “the crucial factor is the resulting prejudice to the opposing party”).
The burden of proving prejudice is on the party opposing the motion. DCD Programs,
LTD., 833 F.2d at 187. UPS does not carry its burden of proving prejudice. In fact,
nowhere in its opposition to Hillebrand’s Motion to Amend does UPS even mention the
word prejudice except in its legal standards section. The Court does not believe UPS will
suffer prejudice by allowing Hillebrand to amend his Complaint. Not only has UPS not
argued prejudice, but UPS would also not have to rethink its defenses and strategies when
litigating the claims brought by Hillebrand. Hale v. Lloyd's, London, 2020 WL 262820, at
*5 (D. Haw. Jan. 17, 2020). Therefore, the Court finds that this factor also favors
Hillebrand.
5. Whether plaintiff has amended the complaint previously
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When a plaintiff has repeatedly failed to cure deficiencies by previously allowed
amendments, this generally weighs in favor of not granting a motion to amend. Eminence
Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Because this is the
Plaintiffs’ First Amended Complaint, and there have not been repeated attempts to amend,
this factor favors allowing the amendment.
IV. Conclusion
Hillebrand’s Motion for Leave to Amend his Complaint is granted for all claims
except his breach of contract claim. The breach of contract claim, as plead, is preempted
by LMRA. Plaintiff Jay V. Shore, because he has not joined in on Hillebrand’s Motion for
Leave to Amend his Complaint or filed a response to UPS’s Motion to Dismiss, will be
dismissed from this action.
Accordingly,
IT IS ORDERED that Hillebrand’s Motion to Amend (Doc. 34) is granted as to
all claims except Count IV: breach of contract.
IT IS FURTHER ORDERED that UPS’s Motion to Dismiss (Doc. 14) is moot.
IT IS FURTHER ORDERED the Joint Motion to Consider (Doc. 38) is granted.
IT IS FURTHER ORDERED that Plaintiff Jay V. Shore is dismissed from this
action. The Clerk of Court is kindly directed to terminate Plaintiff Jay V. Shore as a
Plaintiff in this case.
IT IS FINALLY ORDERED that Plaintiff shall file a clean version of his First
Amended Complaint within three (3) business days from the date of this Order.
Dated this 6th day of March, 2026.
Honorable Diane J. Humetewa
United States District Judge
Case 2:25-cv-02220-DJH Document 42 Filed 03/06/26 Page 13 of 13