United States District Court, S.D. West Virginia, Huntington Division
PHILLIP W. LAWHON, Plaintiff,
WAL-MART STORES EAST, LP, a foreign corporation, and PURSUANT HEALTH, a foreign corporation, Defendants.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE
before the Court is Plaintiff's Motion for Leave to Amend
Complaint (ECF No. 52) to include a spoliation claim.
Defendants timely filed a Response in opposition, arguing
that Plaintiff's amendment constitutes bad faith, would
prejudice Defendants, and would be futile under Federal Rule
15(a)(2). See Defs.' Resp. in Opp., ECF No. 56.
To date, Plaintiff has not filed a reply or requested an
extension to file out of time. The Court has considered
Plaintiff's motion and agrees with Defendants that
Plaintiff cannot meet the standards to amend pleadings under
the Federal Rules. Accordingly, the Court DENIES
Plaintiff's Motion to Amend (ECF No. 52).
amend a pleading after the scheduling order's deadline
has passed, the party seeking amendment must satisfy both
Federal Rule of Civil Procedure 16(b)'s good cause
standard for modifying the scheduling order and Rule
15(a)(2)'s standard for amending pleadings. See
Stewart v. Coyne Textile Servs., 212 F.R.D. 494, 496
(4th Cir. 2015); see also RFT Mgmt. Co., LLC v.
Powell, 607 F. App'x 238, 242 (4th Cir. 2015);
Stanley v. Huntington Nat'l Bank, 492 F.
App'x 456, 461 (4th Cir. 2012); Montgomery v. Anne
Arundel Cty., 182 F. App'x 156, 162 (4th Cir. 2006).
In this case, the Scheduling Order set June 20, 2016 as the
deadline to amend pleadings. See Scheduling Order,
ECF No. 10. Plaintiff's requested amendment concerns the
current condition of the blood pressure kiosk at issue in the
underlying case for negligence and premises liability.
Pl.'s Mot. to Am., ECF No. 52, at 2. The Court
finds that Plaintiff has failed to meet the good cause
standard to modify the scheduling order and the amending
pleadings standard established in the Federal Rules.
Rule 16(b), the Court finds that Plaintiff failed to
establish how he acted with due diligence in requesting
amendment to add the spoliation claim. “Rule
16(b)'s ‘good cause' standard primarily
considers the diligence of the party seeking the
amendment.” Nester v. Hampton Inn Princeton,
Civ. No. 1:13-03336, 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 party). Here,
Plaintiff states that Robert Lort's deposition, taken on
February 21, 2017, alerted Plaintiff to the maintenance and
repairs made to the blood pressure machine. See Pl.'s
Mot. to Am., ECF No. 52, at 1. However, Defendants
assert that this information was properly disclosed during
discovery responses in August of 2016. Defs.' Resp.
in Opp., ECF No. 56, at 5. Plaintiff did not provide a
reason as to why the spoliation amendment could not have been
made after these discovery responses. In fact, Plaintiff did
not make any specific arguments to justify modifying the
scheduling order and did not address Rule 16(b) in the Motion
to Amend. Accordingly, the Court finds that Plaintiff did not
act with due diligence in seeking the requested amendment as
the information was available in fall of 2016. Plaintiff
cannot satisfy the good cause standard required under Rule
Plaintiff failed to respond to Defendants' challenges
that the amendment could not survive Rule 15(a)(2)'s
standard for amending pleadings. According to 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). A court should deny a
motion to amend only if “the amendment would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or amendment would be
futile.” Mayfield v. Nat'l Ass'n for Stock
Car Auto Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012)
(citation omitted); see also Equal Rights Ctr. v. Niles
Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).
argues that since discovery is ongoing, Defendants would not
suffer prejudice with the additional spoliation claim.
Pl.'s Mot. to Am., ECF No. 52, at 2. Trial is
currently set for August 22, 2017, and the parties must
complete all depositions by May 15, 2017. See Am.
Scheduling Order, ECF No. 49. Defendants challenged
Plaintiff's assertion that prejudice would not result,
stating that Defendants would need more discovery and expert
witnesses to defend the claim, which would ultimately require
extending the trial date again. Defs.' Resp. in
Opp., ECF No. 56, at 9. Further, Defendants argue that
Plaintiff's added claim would be futile as he cannot
prove a willful destruction of evidence or malicious intent
when Plaintiff never requested the machine to be kept in
original condition. Id. at 6. Plaintiff had asked
Defendant to preserve the security video back in June of 2014
but never requested that the blood pressure kiosk be kept in
the same condition. Id. Defendants also offered to
let Plaintiff inspect the kiosk, but Plaintiff cites that
this inspection would be “fruitless” and
declined. Id. at 3. Finally, Defendants allege that
Plaintiff sought this amendment in bad faith as an attempt to
cover up the lack of an expert report. Id. at 5-6.
Plaintiff never responded to these challenges.
Court is inclined to agree with Defendants that Plaintiff
cannot meet the amending pleading standards set in Rule
15(a)(2). The Court will not opine on whether Plaintiff's
actions were brought in bad faith, but the Court recognizes
that Plaintiff's amendment would be futile and
prejudicial. In order to prepare adequately for another claim
not specifically related to the underlying claims (as
spoliation would require different legal theories than
negligence and premises liability as currently brought),
Defendants would be forced to engage in more discovery than
the current scheduling order allows. Moreover, Plaintiff has
not demonstrated any willful destruction other than routine
maintenance over a two-year period in which one would expect
a company to continue to operate and repair a continuously
used machine. If Plaintiff had requested Defendants to
maintain the blood pressure machine in the condition as it
was in 2014, Plaintiff could potentially state a plausible
claim. However, Plaintiff never made such request, and
Defendants were not put on notice that any future repairs and
maintenance would disrupt Plaintiff's ability to prevail
on his underlying claims. The Court, thus, finds that
Plaintiff cannot meet the amending pleading standards set
forth in Rule 15(a)(2).
the Court DENIES Plaintiff's Motion to Amend (ECF No. 52)
because Plaintiff cannot meet the good cause standard to
modify the scheduling order under Rule 16(b) or the amending
pleading standard under Rule 15(a)(2).
Court DIRECTS the Clerk to send a copy of this Order to
counsel of record and any unrepresented parties.
 A plausible claim for intentional
spoliation of evidence requires facts to support seven
elements. See Williams v. Werner, 770 S.E.2d 532,
539 ( W.Va. 2015) (listing elements as: “(1) a pending
or potential civil action; (2) knowledge of the spoliator of
the pending or potential civil action; (3) willful
destruction of evidence; (4) the spoliated evidence was vital
to a party's ability to prevail in the pending or
potential civil action; (5) the intent of the spoliator to
defeat a party's ability to prevail in the pending or