United States District Court, S.D. West Virginia, Charleston
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.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge
is plaintiff's motion to amend the complaint, filed
August 8, 2017.
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.
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
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”).
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
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.
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.
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.
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.
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).
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 ...