United States District Court, S.D. West Virginia, Huntington Division
LUMUMBA EARLE, individually and as the Personal Representative of the ESTATE of ANNIE EARLE, deceased, Plaintiff,
CITY OF HUNTINGTON, d/b/a CITY OF HUNTINGTON POLICE DEPARTMENT, a municipal corporation, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS CHIEF JUDGE.
before the Court is Plaintiff's Motion to Amend the Third
Amended Complaint (ECF No. 255). Defendants filed two
separate responses in opposition to this motion (ECF Nos.
258, 260), and the Court granted an extension for Plaintiff
to file a reply (ECF Nos. 266, 267) to March 31, 2017. To
date, Plaintiff has failed to file a reply or request for
another extension. The Court has thoroughly reviewed
Defendants' concerns regarding another amended complaint
and agrees that such amendment would be futile. Accordingly,
the Court GRANTS in part and DENIES in part Plaintiff's
Motion to Amend (ECF No. 255). As no party objected to the
dismissal of Ted Grant as a defendant, the Court will allow
Plaintiff to dismiss Ted Grant as a party, but the Court
DENIES Plaintiff's Motion as to the other requested
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
(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
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 March 30, 2015 as the
deadline to amend pleadings. See Scheduling Order,
ECF No. 44. Although Plaintiff can meet the Rule 16(b)
standard, Plaintiff has failed to satisfy Rule 15(a)(2)'s
standard for amending pleadings.
Rule 16(b), the Court finds that Plaintiff acted with
appropriate diligence in requesting these amendments.
“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 seeks to amend the complaint to add three claims
against current Defendants: (1) additional negligence claim
via agency theory in Count X against Defendant St. Mary's
Medical Center, Inc. (Defendant St. Mary's) for the
doctors' conduct in the ED Group; (2) factual allegations
against Defendant Patrick Watkins (Defendant Watkins) in
Count VII for false imprisonment; and (3) an additional fraud
claim against Defendant Watkins in Count VIII. See
Pl.'s Mot. to Am., ECF No. 255, at 2. Plaintiff
argues that her counsel acted diligently seeking these
amendments because the information became available only
after deposing Dr. Anna Corbin and Dr. Gregory Clarke and
after a discovery extension revealed personnel files on
Defendant Watkins. Id. at 2-3.
Watkins did not object to Plaintiff's diligence in
seeking amendment for the two counts against him. Defendant
St. Mary's, on the other hand, argues that Plaintiff
failed to act diligently regarding the negligence claim.
See Def. St. Mary's Resp. in Opp., ECF No. 258,
at 11- 13. Defendant St. Mary's argues that
Plaintiff's expert, Dr. Chad Kovala, identified the
physicians' failure to meet the proper standard of care
prior to the depositions of Dr. Clarke and Dr. Corbin.
Id. at 11-12 (noting that Dr. Kovala alluded to
these violations in expert report). Defendant St. Mary's
also asserts that a proper review of the medical record would
have brought these new allegations to light and that
Plaintiff's untimely amendment is too late to satisfy the
diligence standard. Id. at 13. Dr. Kovala, however,
explained in his deposition that the new allegations did not
develop until he could review the doctors' depositions
along with the medical record. See Pl.'s Mot. to
Am., ECF No. 255, at 3. The Court, therefore, finds that
Plaintiff has satisfied the 16(b) standard for diligence.
with diligence satisfied though, the Defendants make it clear
that Plaintiff cannot meet 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). The
Court finds that the three requested amendments against
Defendant St. Mary's and Defendant Watkins would be
futile if permitted.
St. Mary's asserts various reasons why Plaintiff's
amendment for negligence under an agency theory would be
futile, and Plaintiff did not respond to any of these
arguments. The Court agrees with Defendant St. Mary's
that allowing the amendment to assert negligence for actions
taken by the ED Group would fail to state a claim because the
ED Group is independent from the hospital. According to West
Virginia law, “[a] health care provider may not be held
vicariously liable for the acts of a nonemployee pursuant to
a theory of ostensible agency unless the alleged agent does
not maintain professional liability insurance
….” W.Va. Code § 55-7B-9(g). Defendant St.
Mary's details that the ED Group is an independent
staffing group-outside of the control of Defendant St.
Mary's-and has its own professional liability coverage.
Def. St. Mary's Resp. in Opp., ECF No. 258, at
17. In Cunningham v. Herbert J. Thomas Memorial
Hospital, the Supreme Court of Appeals of West Virginia
determined that a hospital could not be held vicariously
liable for the actions of independent physicians. 737 S.E.2d
270, 277-81 ( W.Va. 2012). The contract between Defendant St.
Mary's and Premier Health Care Services, Inc. (the entity
supplying people for the ED Group) demonstrates that the ED
Group is similarly situated to the independent group of
physicians in Cunningham. See Exh. N, ECF
No. 258-14. Therefore, an additional negligence claim based
on agency over the ED Group would be futile. Moreover,
Plaintiff offered no explanation as to how she could maintain
another claim against Defendant St. Mary's without
following the prerequisite notice requirements in West
Virginia Code § 55-7B-6. For these reasons, the Court
finds that an additional negligence claim based on agency
would be futile.
Defendant Watkins, Plaintiff seeks to add factual allegations
to the false imprisonment claim and an additional claim for
fraud. However, this Court dismissed the claim for false
imprisonment against Defendant Watkins in a previous Order
and will not allow Plaintiff to make another attempt to
assert the same allegations. See Mem. Op. &
Order, ECF No. 103, at 9. Moreover, as stated in that
Order, the Court has recognized that Defendant Watkins falls
under the immunity for personal tort liability afforded to
employees of political subdivisions. See Id. at 8-9.
At that time, this Court stated that “the described
conduct of … Patrick Watkins cannot be classified as
anything but allegedly negligent.” Id. at 9.
Plaintiffs request to include additional factual allegations
against Defendant Watkins does not transform his alleged
negligence into willful or wanton misconduct to remove
immunity. See W.Va. Code § 24-6-8 (“A
public agency or a telephone company participating in an
emergency telephone system or … employee of the public
agency, telephone company or county is not liable for damages
in a civil action for injuries, death or loss to persons or
property arising from any act or omission, except willful
or wanton misconduct ….”) (emphasis added).
Although Plaintiff uses the phrase “willful and
wanton” to describe Defendant Watkins's actions,
the Court does not find the new factual allegations to rise
to that level. At most, Defendant Watkins's conduct was
reckless, but that still falls under immunity protection. As
the Court finds that Plaintiffs additional factual assertions
do not raise Defendant Watkins's conduct to a level of
willful or wanton misconduct, a claim for fraud must fail.
Accordingly, an amendment to include these allegations would
the Court GRANTS in part and DENIES in part Plaintiffs Motion
to Amend (ECF No. 255), allowing only the dismissal of Ted
Grant as a defendant. Plaintiffs requested amendments against
Defendant St. Mary's and Defendant Watkins cannot meet
the standards of Federal Rule 15(a)(2) and are DENIED as
Court DIRECTS the Clerk to send a copy of this Order to
counsel of ...