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Matheny v. L.E. Myers Co.

United States District Court, S.D. West Virginia, Charleston

February 26, 2018

DAVID K. MATHENY, Plaintiff,
L.E. MYERS CO., a foreign corporation, and APPALACHIAN POWER COMPANY, a foreign corporation d/b/a American Electric Power, Defendants.


          John T. Copenhaver, Jr. United States District Judge

         Pending is plaintiff's motion to amend the complaint, filed August 8, 2017.

         I. Background

         This case arises from injuries sustained by plaintiff, David Matheny, on July 18, 2016, when he was assisting in the demolition of a steel tower as an employee of The L.E. Myers Co. (“L.E. Myers”). The tower was a ninety-year-old, 100 foot tall steel lattice transmission tower located in the Kanawha State Forest that was owned and operated by Appalachian Power Company, doing business as American Electric Power (“APCo”). Pl.'s Compl. ¶¶ 7-9. To dismantle the tower, David Matheny and his crew were instructed to climb up the tower, approximately twenty to thirty feet off the ground, to remove the structural support bolts. Id. at ¶¶ 13-14. During this process, the tower suddenly collapsed. Id. at ¶ 16. Mr. Matheny was thrown from the falling tower from a height of approximately thirty feet, resulting in his injuries. Id. at ¶ 17. He suffered an open fracture to his leg, blood loss, a broken hand, collapsed lung, and injuries to his head and other areas of his body as a result of the fall. Id. Mr. Matheny has undergone significant medical treatment including multiple surgeries and hospitalizations since the date of injury. Id. at ¶ 19.

         At the outset of this action, Mr. Matheny brought one count against each of the named defendants, L.E. Myers and APCo. Against his employer, L.E. Myers, Mr. Matheny asserts a claim for deliberate intent pursuant to W.Va. Code § 23-4-2. Id. at ¶ 24. Against APCo, he alleges negligent conduct in the breach of various duties related to planning and executing the tower deconstruction. Id. at ¶¶ 33-48.

         Plaintiff now wishes to amend his complaint to add five additional defendants and two additional claims. In particular, he seeks to assert a new claim against L.E. Myers for intentional spoliation of evidence, to bring a claim for negligence against MYR Group, Inc. (“MYR Group”), the parent company of L.E. Myers, and to add four additional American Electric Power-related entities to his negligence claim against APCo: American Electric Power Company, Inc. (“AEP”), AEP West Virginia Transmission Company, Inc. (“AEP WV Transmission”), AEP Transmission Company, LLC (“AEP Transmission”), and American Electric Power Service Corporation (“AEP Service”) (together, “AEP defendants”).

         Mr. Matheny asserts that new information gained through discovery gives rise to the inclusion of the additional claims and parties. Pl.'s Mem. Supp. Mot. Amend at 3 (“Pl.'s Mem.”).

         L.E. Myers opposes the motion to amend the complaint to add both the intentional spoliation claim against it, and the negligence claim against its parent company, MYR Group. L.E. Myers asserts that both amendments would be futile. L.E. Myers states that plaintiff cannot maintain a claim for spoliation of evidence and that such a claim would be barred by the Worker's Compensation Act.

         L.E. Myers further claims that plaintiff is precluded from bringing a negligence claim against MYR Group because, it argues, the parent company should also be afforded Worker's Compensation immunity pursuant to W.Va. Code § 23-2-6. L.E. Myers states that this immunity should apply because the parent group can be considered plaintiff's employer. L.E. Myers also asserts that MYR Group should be considered plaintiff's employer because MYR Group had the authority to direct and control plaintiff's activities. Similarly, L.E. Myers claims that MYR Group was plaintiff's employer because other employees of MYR Group who provided on-site safety-related services were the agents or representatives of L.E. Myers.

         Finally, L.E. Myers also takes issue with the timing of plaintiff's motion. Mr. Matheny filed his motion to amend the complaint several months after the deadline for amendments set in this court's scheduling order. Allowing this late amendment, L.E. Myers contends, would be prejudicial because defendants do not have an opportunity to conduct discovery to oppose the new claims being raised.

         APCo opposes the motion to amend the complaint to add the four additional related entities as defendants. APCo states that plaintiff was aware of the proposed defendants' relation to the project, on which Mr. Matheny was working when injured, well before the filing of the motion to amend the complaint, thus making his motion dilatory. Specifically, APCo contends that plaintiff knew of AEP Service's involvement as early as January and at latest by the end of April of 2017. Plaintiff also had documents from OSHA identifying OSHA's investigation of AEP, AEP Transmission, and AEP WV Transmission for the July 18, 2016 accident by April 2017.

         II. Legal Standard

         “The district courts have applied a two-step analysis for use when a motion to amend the pleadings is made after the deadline set in the scheduling order has passed: (1) the moving party must satisfy the good cause standard of Rule 16(b), and (2) if the movant satisfies Rule 16(b), the movant then must pass the tests for amendment under Rule 15(a).” 3-16 Moore's Federal Practice - Civil § 16.13 (2015); see also Hawkins v. Leggett, 955 F.Supp.2d 474, 497-99 (D. Md. 2013) (stating and applying two-part test). This analysis has emerged because litigants seeking to amend their pleadings outside the court's deadlines for doing so must effectively modify the scheduling order under Rule 16 as well. Thus, “[a]lthough leave to amend a complaint should be ‘freely give[n] [. . .] when justice so requires, ' Fed.R.Civ.P. 15(a)(2), ‘after the deadlines provided by a scheduling order have passed, the good cause standard [of Fed.R.Civ.P. 16] must be satisfied to justify leave to amend the pleadings.'” RFT Mgmt. Co., LLC v. Powell, 607 F.Appx. 238, 242 (4th Cir. 2015) (alterations added and in original) (quoting Nourison Rug Co. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008)); see also Montgomery v. Anne Arundel County, 182 Fed.Appx. 156, 162 (4th Cir. May 3, 2006) (affirming denial of amendment based on Rule 16 standard where scheduling order deadline had passed).

         “Rule 16(b)'s good cause standard focuses on the timeliness of the amendment and the reasons for its tardy submission; the primary consideration is the diligence of the moving party.” Montgomery, 182 F. App'x. at 162; see also Hawkins, 955 F.Supp.2d at 498 (“The movant satisfies the good cause requirement by showing that, despite diligence, the proposed claims could not have been reasonably brought in a timely manner.”); 3 Moore's Federal Practice § 15.14(1)(b), at 16-72 (Matthew Bender 3d ed.) (“[I]t seems clear that the factor ...

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