United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE
before the Court is Plaintiff's Motion to Amend its
Complaint to Assert the Claim and Remedy for Ejectment (ECF
No. 286). For the following reasons, the Court
DENIES Plaintiff's motion.
amend a pleading after the scheduling order's deadline,
the party seeking amendment must satisfy Federal Rule of
Civil Procedure 15(a)(2)'s standard for amending
pleadings and Rule 16(b)'s good cause standard for
modifying the scheduling order. Stewart v. Coyne Textile
Servs., 212 F.R.D. 494, 496 (S.D. W.Va. 2003); see
also RFT Mgmt. Co., LLC v. Powell, 607 F.App'x 238,
242 (4th Cir. 2015); Stanley v. Huntington Nat'l
Bank, 492 Fed.App'x 456, 461 (4th Cir. 2012);
Montgomery v. City of Anne Arundel, 182 F.App'x
156, 162 (4th Cir. 2006). The Court finds that although
Plaintiff meets the Rule 15(a)(2) standard, the Plaintiff
failed to make any good cause argument to satisfy
modification of the scheduling order under Rule 16(b).
Rule 15(a)(2), “a party may amend its pleading [after
the time for amendments as a matter of course] only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Generally, a court
should grant leave to amend a pleading unless it would result
in prejudice to the opposing party, the motion was brought in
bad faith, or permitting amendment would be futile. See
Mayfield v. Nat'l Ass'n for Stock Car Auto Racing,
Inc., 674 F.3d 369, 379 (4th Cir. 2012) (citation
omitted); Equal Rights Ctr. v. Niles Bolton Assocs.,
602 F.3d 597, 603 (4th Cir. 2010) (citation omitted).
Defendants argue in their Response that an amendment to add
ejectment would be futile since the relief must be determined
by the judge, not a jury. See Defs.' Resp. in
Opp., ECF No. 293, at 3. The Court recognizes that West
Virginia has historically “accorded the right to a jury
trial in an action for ejectment.” Marthens v. B
& O R.R. Co., 289 S.E.2d 706, 712 n.2 ( W.Va. 1982);
see also Toppins v. Oshel, 89 S.E.2d 359, 365 (
W.Va. 1955) (“In an action of ejectment it is the
province of the jury to determine the weight of all the
evidence.”); Davis Colliery Co. v. Westfall,
90 S.E. 328 ( W.Va. 1916). Therefore, the Court finds that
Plaintiff's amendment is not prejudicial, is not brought
in bad faith, and is not futile, and, thus, Plaintiff meets
the standard of 15(a)(2).
Plaintiff failed to assert any argument to justify a
modification of the scheduling order to satisfy Rule 16(b).
Once set, “[a] schedule may be modified only for good
cause and with the judge's consent.” Fed.R.Civ.P.
16(b); see also Nourison Rug Corp. v. Parvizian, 535
F.3d 295, 298 (4th Cir. 2008) (“after the deadlines
provided by a scheduling order have passed, the good cause
standard must be satisfied to justify leave to amend the
pleadings”). “Rule 16(b)'s ‘good
cause' standard primarily considers the diligence of the
party seeking the amendment.” Nester v. Hampton Inn
Princeton, No. 13-03336, 2013 WL 5425123, at *2 (S.D.
W.Va. Sept. 26, 2013) (citations omitted); see also
Essential Hous. Mgmt., Inc. v. Walker, 166 F.3d 332 (4th
Cir. 1998) (noting 16(b) considers diligence of party seeking
amendment, not lack of bad faith or prejudice to opposing
Response highlights the fact that Plaintiff has not
established good cause to amend its complaint, and Plaintiff
never submitted an argument for good cause in its
Reply. See Defs.' Resp. in Opp., ECF
No. 293, at 2-3. Plaintiff has always maintained that
injunctive relief would be appropriate, but Plaintiff never
moved to add ejectment to the complaint before now. See
Pl.'s Compl., ECF No. 1-2, at ¶ 24 (requesting
injunctive relief). The Court's Scheduling Order
specified that all amended pleadings were due by December 23,
2015-almost exactly one year ago. See Scheduling
Order, ECF No. 17. Moreover, trial is currently
scheduled for February 14, 2017 and has been continued once
before. Plaintiff has not submitted any assertion that they
have acted diligently to amend the complaint to add
ejectment. To the Court's knowledge, there has been no
new evidence discovered that would cause Plaintiff only now
to consider an ejectment claim at this stage in the
litigation. Plaintiff mentions the Court's concern over
Plaintiff's theory of damages, but that does not provide
good cause for a late amendment and does not show diligence
by Plaintiff. See Pl.'s Mot. to Am., ECF No.
286, at 2. Therefore, the Court cannot say that Plaintiff
acted with diligence in seeking the amendment, so Plaintiff
fails to meet the Rule 16(b) standard.
Court, thus, finds that Plaintiff failed to show good cause
justifying amendment to assert the claim of ejectment.
Plaintiff retains the claim for injunctive relief that will
be determined by the Court after a jury decides whether a
trespass has occurred. Accordingly, Plaintiffs Motion to
Amend (ECF No. 286) is DENIED.
Court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented parties.
 During this litigation, Defendants
have also moved to amend their answer to assert an
affirmative defense for mitigation of damages. In opposition,
Plaintiff argued that Defendants did not offer “a
plausible explanation sufficient to survive scrutiny under
Rule 16” to justify amendment eight months after the
scheduling order. See Pl.'s Mem. in Opp. and in Resp.
to Defs.' Mot. for Leave to Am. Answer, ECF No. 151,
at 7. The Court allowed Defendants to amend the answer
because Defendants pointed to deposition testimony to justify
their amendment under ...