Faiupu Myers v. Checksmart Financial, LLC

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

FAIUPU MYERS,
No. 15-16687
Plaintiff - Appellant,
v. D.C. No. 2:13-cv-02209

CHECKSMART FINANCIAL, LLC, MEMORANDUM∗

Defendant – Appellee.

Appeal from the United States District Court
for the Eastern District of California
Craig M. Kellison, Magistrate Judge, Presiding

Argued and Submitted April 17, 2017
San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and DRAIN, ** District
Judge.

Faiupu Myers appeals the magistrate judge’s order granting Checksmart

Financial, LLC’s (“Checksmart”) motion for summary judgment. We have

∗
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gershwin A. Drain, United States District Judge for the
Eastern District of Michigan, sitting by designation.

1
jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de novo, see Darring v.

Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), we reverse and remand for further

proceedings.

1. The magistrate judge erred in concluding that Myers’s amended

complaint did not relate back to the date the original complaint was filed. The

magistrate judge erroneously focused on Myers’s knowledge, contrary to the

Supreme Court’s holding in Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 541

(2010). The Krupski court explained that even when “a plaintiff knows of a

party’s existence [, such knowledge] does not preclude her from making a

mistake with respect to . . . [the defendant’s] status or role in the events giving

rise to the claim at issue, and she may mistakenly choose to sue a different

defendant based on that misimpression.” Id. at 548-49. This type of “deliberate

but mistaken choice does not foreclose a finding that Rule 15(c)(1)(C)(ii) has

been satisfied.” Id. at 549.

2. While Myers may have known of Checksmart’s existence, she

certainly did not understand its “role in the events giving rise to the claim at

issue . . . .” Id. In Myers’s declaration filed in support of her opposition to

summary judgment, Myers indicated that “[e]very identifying feature of the

facility from the sign on the building, to the displays inside the store, to the cards

2
identified the place as” California Check Cashing Stores (“CCCS”). She further

stated that she “did not know who the persons were firing me worked for

CCC[S] or Checksmart. As I look back at being informed that CCC[S] would

become Checksmart, I regarded the change of name as cosmetic and of no legal

significance to me. I understood both names belonged to the same company so it

made little difference to me.”

3. To determine whether an amendment “relates back” under Federal

Rule of Civil Procedure 15(c)(1)(C), the correct inquiry must focus upon what

Checksmart “reasonably should have understood about [Myers’]s intent in filing

the original complaint against” CCCS. Id. at 553-54. The record establishes that

Checksmart reasonably should have known within the Federal Rule of Civil

Procedure 4(m) period that Myers intended to sue it rather than CCCS. Her

original complaint set forth allegations and claims stemming from her alleged

wrongful termination. On her last day of employment, Myers worked at a store

with signage and other identifying markings as CCCS. CCCS is registered to do

business in California, whereas Checksmart is not registered to do business in

the state. The address for the two businesses was identical and the person

identified to accept notice regarding Fair Employment and Housing Act

(“FEHA”) claims was “Ashley” for both CCCS and Checksmart.

3
4. Additionally, similar to the facts in Krupski, both parties were

represented by the same attorney. As such, Checksmart should have known that

Myers did not name it as a defendant in her original complaint because of a

mistake concerning the proper party’s identity. Therefore, the first amended

complaint relates back to the filing of the original complaint and Myers’s claims

were filed before the expiration of the statute of limitations.

5. The magistrate judge also erred in its holding that Myers failed to

exhaust her administrative remedies. See Cal. Gov’t. Code § 12960(d); see also

Carter v. Smith Food King, 765 F.2d 916, 922 (9th Cir. 1985) (a plaintiff must

exhaust administrative remedies before filing a FEHA claim). A plaintiff generally

does not exhaust her administrative remedies under the FEHA unless she names the

prospective defendant in the body or the caption of the charge. Medix Ambulance

Serv., Inc. v. Superior Court, 97 Cal. App. 4th 109, 118 (Cal. App. 4th Dist. 2002).

6. While Myers failed to identify Checksmart in either the caption or the

body of her charge, she did identify the fictitious business of CCCS, as well as the

store’s address. She also identified “Ashley” as the individual who informed her of

her termination. Ashley was the Human Resources representative for Checksmart,

as well as CCCS. This was sufficient to identify Checksmart as her employer.

Similar to the facts in Martinez v. Louis Lau, Inc., No. G026937, 2002 WL

4
31772018 (Cal. Ct. App. 4th Dist. Dec. 11, 2002), it is disingenuous for

Checksmart to claim that it was unaware of her charge. As the Martinez court

noted:

The function of an administrative complaint is to provide the basis for
an investigation into an employee’s claim of discrimination against an
employer, and not to limit access to the courts. A strict rule would
harm victims of discrimination without providing legitimate protection
to individuals who are made aware of the charges through the
administrative proceeding.

2002 WL 31772018, at *5 (quoting Martin v. Fisher, 11 Cal. App. 4th 118, 122

(1992)). As such, Myers properly exhausted her administrative remedies on her

FEHA claim.

7. We decline Checksmart’s invitation to rule on its substantive

arguments, which the magistrate judge did not address. Because we are a

reviewing court, we are not inclined to usurp the magistrate judge’s power to

decide the case in the first instance. Detrich v. Ryan, 740 F.3d 1237, 1248-49 (9th

Cir. 2013) (en banc).

8. Because the magistrate judge erroneously granted summary judgment

in favor of Checksmart, his award of attorney’s fees and costs was also erroneous.

See Cal. Gov’t Code § 12965(b) (providing the courts with discretionary authority

to award attorney’s fees and costs to the prevailing party).

REVERSED AND REMANDED.