United States District Court, S.D. West Virginia
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 supplement his motion to amend
the complaint and motion for partial summary judgment against
the L.E. Myers Co. (“motion to supplement”),
filed October 25, 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”).
Matheny's motion to supplement seeks to add additional
evidence in support of both his pending motion to amend the
complaint as well as his pending motion for partial
summary judgment against L.E. Myers. Plaintiff asserts that
the newly offered support was only obtained pursuant to Judge
Tinsley's order granting plaintiff's motion to compel
entered October 4, 2017. See ECF No. 165. The motion to
compel was filed on June 6, 2017, approximately two months
before he filed his motion to amend the complaint. See ECF
Nos. 58 and 102. Filings on the motion to amend the complaint
were completed on August 29, 2017. Filings on the motion for
partial summary judgment were completed on October 2, 2017.
As such, any documents obtained as a result of Judge
Tinsley's order could not have been included in support
of either of plaintiff's motions.
specifically wishes to add a Job Specific Safety Analysis,
which he asserts provides added information relevant to MYR
Group's knowledge of the danger involved in the method of
tower dismantling performed by Mr. Matheny. He claims,
therefore, that the recently obtained evidence provides
further support for both the addition of MYR Group as a
defendant in this action and the pending summary judgment on
deliberate intent against L.E. Myers.
time for briefing on plaintiff's motion to supplement
elapsed without response from either defendant.
appears to be no controlling decision on the propriety of
allowing a party to supplement the evidence in support of
either a motion to amend a complaint or a motion for summary
judgment after it has become ripe for review. Courts have
applied various standards to requests for a motion to
supplement a summary judgment record with additional
Third Circuit permits supplementation when new material is
not merely cumulative or corroborative of evidence already in
the record, and if the new material creates a new question of
material fact that may impact the ruling. See Edwards v. Pa.
Tpk. Comm'n, 80 F. App'x. 261, 265 (3d Cir. 2003).
Other courts compare such a motion to a request for relief
from judgment and apply the standard of Fed.R.Civ.P. 60(b),
though the rule relates to final judgments, allowing
supplementation of a summary judgment record when doing so
provides the court with “newly discovered evidence
that, with reasonable diligence, could not have been
discovered earlier.” Pepper v. JC Penney Corp., No.
2:07-cv-1781, 2008 U.S. Dist. LEXIS 88494, at *6 (W.D. Wash.
Oct. 16, 2008); see Fed.R.Civ.P. 60(b)(2). Finally, some
courts allow additional evidence when the request is not made
in bad faith and will not result in prejudice to the other
parties. See Brown v. Hertz, 2011 U.S. Dist. LEXIS 127226, at
*8 (S.D. Ill. Nov. 3, 2011).
proper to allow plaintiff to supplement his motions with the
additional evidence under any of these three theories of
review. As previously noted, plaintiff only received the
evidence he now proposes to add to the record after Judge
Tinsley granted his motion to compel against L.E. Myers. See
ECF No. 165. Plaintiff pursued this information with
reasonable diligence, but did not have access to it at the
time of filing his motion to amend the complaint and motion
for partial summary judgment. Additionally, the proffered
evidence is not merely cumulative of other evidence submitted
in support of his motion to amend the complaint. Finally,
neither defendant has responded to Mr. Matheny's motion
to supplement, let alone asserted that the supplementation
was made in bad faith or results in prejudice to them. The
use of information received by an order granting
plaintiff's motion to compel is not prejudicial to the
defendants and has not been sought in bad faith.
accordance with th e foregoing discussion, it is ORDERED that
plaintiff's motion to ...