Carroll v. ABM Janitorial Services-Mid Atlantic Inc.

Filing 30

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 9/4/12. (dzb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
THORNTON CARROLL,
Plaintiff,

v.

Civ. No. 11-1041-LPS

ABM JANITORIAL SERVICES-MID
ATLANTIC, INC.,
Defendant.

Thornton Carroll, Wilmington, Delaware, Pro Se Plaintiff.
Christopher D. Loizides, Esquire, Loizides & Associates, Wilmington, Delaware. Counsel for
Defendant.

MEMORANDUM OPINION

September 4, 2012
Wilmington, Delaware

~~?k

STARK, U.S. District Judge:

I.

INTRODUCTION
Plaintiff Thornton Carroll ("Plaintiff') filed this action on October 28, 2011, alleging

employment discrimination, violations of his civil rights, and defamation. (D.I. 2) The Court
has jurisdiction pursuant to 28 U.S.C. § 1331. In addition, Plaintiff asserts jurisdiction by reason
of diversity of the parties. Presently before the Court is Plaintiff's motion to amend and motion
to extend discovery deadlines, as well as Defendants' oppositions to these motions. (D.l. 14, 16,
27,29) For the reasons that follow, the Court will deny the motion to amend and will grant the
motion to extend discovery deadlines.

II.

BACKGROUND
On September 20, 2001, Plaintiff was hired as a cleaner for Brandywine Building

Services, Inc. ("BBS"). Plaintiff remained employed after BBS was acquired by Defendant
ABM Janitorial Services-Mid Atlantic, Inc. ("Defendant") on January 1, 2006. On August 10,
2009, Plaintiff was informed by his employer that he was being terminated for violation of a
company policy. At the time, Plaintiff held the position of project manager. When Plaintiff
questioned his termination, ABM Regional Manager Rich Strazzella ("Strazzella") told him that
he would send him a letter. ABM Senior Operations Manager Mark DeLucia ("DeLucia") was
present at the meeting, but said nothing. Plaintiff later learned the reason for his termination
when he sought unemployment benefits from the Delaware Department of Labor. It was alleged
that he allowed employees to leave work early on July 3, 2009, but clocked them out at the end of
the shift, so that it appeared the employees worked the entire shift. Plaintiff denies taking such
action. He alleges that he was not terminated for just cause and that his civil rights were

violated. He further alleges that he was not given a fair hearing to defend his name and
reputation.
Defendant addressed the time clock issue during unemployment compensation hearings
and in correspondence with the Equal Employment Opportunity Commission ("EEOC"). 1
Plaintiff alleges that Defendant made slanderous, libelous, and derogatory false statements to the
EEOC. Plaintiff also alleges retaliation based on Defendant's refusal to permit him to return to
his office to retrieve personal belongings and because these belongings were never returned to
him. In addition, Defendant cancelled Plaintiffs life insurance without notification to him.
On February 27,2012, the Court entered a scheduling order that set a March 27,2012
deadline to amend pleadings. (See OJ. 11) Plaintiff filed the instant motion to amend on March
26,2012. He seeks to add as defendants DeLucia, Strazzella and ABM Project Manager Ardrell
Weaver ("Weaver"). Defendant opposes the motion. Plaintiff has also filed a motion for an
extension of time to complete discovery. (0.1.27) Again, defendant opposes the motion. (OJ.
29)

III.

LEGAL STANDARDS
Pursuant to Fed. R. Civ. P. 15(a), a party may amend its pleading once as a matter of

course within twenty~one days after serving it or, if the pleading is one to which a responsive
pleading is required, twenty-one days after service of a responsive pleading or twenty-one days
after service of a Rule 12(b) motion, whichever is earlier. Otherwise, a party may amend its

lPlaintifffiled a charge with the EEOC alleging employment discrimination by reason of
race discrimination. His notice of right to sue letter is dated August 2, 2011.

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pleading only with the opposing party's written consent or the court's leave. Rule 15 provides
that the Court should freely give leave to amend when justice so requires.
The Third Circuit has adopted a liberal approach to the amendment of pleadings to ensure
that "a particular claim will be decided on the merits rather than on technicalities." Dole v. Arco
Chem. Co., 921 Fold 484,486-87 (3d Cir. 1990) (citations omitted). Amendment, however, is
not automatic. See Dover Steel Co.) Inc. v. Hartford Accident and Indem., 151 F.R.D. 570, 574
(E.D. Pa. 1993). Leave to amend should be granted absent a showing of "undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of the allowance of the
amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178,182 (1962); see also
Gran v. Stafford, 226 F.3d 275,291 (3d Cir. 2000). Futility of amendment occurs when the
complaint, as amended, does not state a claim upon which relief can be granted. See In re
Burlington Coat Factory Sec. Litig., 114 F .3d 1410, 1434 (3d Cir. 1997). If the proposed
amendment "is frivolous or advances a claim or defense that is legally insufficient on its face, the
court may deny leave to amend." Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D.
463,468 (D.N.J. 1990).

IV.

DISCUSSION
A.

Statute of Limitations

Plaintiff moves to add Delaware tort claims of defamation and intentional infliction of
emotional distress. Defendant opposes amendment on a number of grounds, including that the
proposed tort claims are time-barred. The relevant state statute of limitations for most tort claims
in Delaware is two years. See 10 Del. C. § 8119. Plaintiff's belated effort to join DeLucia,
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Strazzella, and Weaver fails because he identified these three individuals by name in the
complaint and its exhibits, yet failed to assert claims against them at that time. See Garvin v.

City a/Philadelphia, 354 F.3d 215, 221-22 (3d Cir. 2003) ("[A]n amended complaint will not
relate back if the plaintiff had been aware of the newly named parties when he filed her original
complaint and simply chose not to sue them at that time."); see also Lape v. Pennsylvania, 157 F.
App'x 491 (3d Cir. Nov. 22, 2005) (not reported). Accordingly, amendment is futile as to the
tort claims.

B.

Wronefu1 Termination

The proposed amended complaint seeks to add claims against DeLucia, Strazzella, and
Weaver for intentionally and maliciously terminating plaintiffs employment. Defendant argues
futility of amendment, on the basis that employees acting within the scope of their employment
cannot be held liable for wrongfully terminating another employee. Defendant relies upon

Nelson v. Fleet N'tl Bank, 949 F. Supp. 254, 259 (D. Del. 1996).
The allegations in the complaint and the proposed amended complaint indicate that
Plaintiff had an employment contract, if any, with Defendant and not with the proposed
individual defendants. Hence, the individual defendants cannot be held liable for wrongful
termination. See Harris v. Dependable Used Cars, Inc., 1997 WL 358302, at *1 (Del. Super. Ct.
1997) (citing Delaware Rule that "where the principal is disclosed, only the principal is liable ...
not the agent") (internal quotation marks omitted); see also Brooks v. Fiore, 2001 WL 1218448
(D. Del. Oct. 11,2001) (summary judgment granted where employee had employment contract
with company and, therefore, under principal/agent theory, company's decisionmaker could not

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be held liable for wrongful termination). Because the proposed individual defendants cannot be
held liable for Plaintiffs wrongful termination, amendment is futile.
C.

Discovery Deadlines

Plaintiff seeks a one month extension to complete discovery. CD.!. 27) The Court will
grant the motion.

V.

CONCLUSION
For the above reasons, the Court will deny the Motion to Amend CD.I. 14) and will grant

the motion to extend discovery deadlines CD.!. 27).
An appropriate Order will be entered.

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