SHERROD et al v. MCHUGH et al

Filing 40

ORDER granting Plaintiffs' motion for leave to file a second amended complaint. See document for details. Signed by Judge Rudolph Contreras on 4/7/2017. (lcrc2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VASHTI SHERROD, et al.,
Plaintiffs,
v.
PHILLIP MCHUGH, et al.,
Defendants.

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Civil Action No.:

16-0816 (RC)

Re Document No.:

32

ORDER
GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
Plaintiffs move to amend their complaint a second time to clarify the factual
circumstances surrounding their previous claims and add a new claim for negligence against
Individual Defendant Diane Schulz. See Mot. Leave File Second Am. Compl. (“Pls.’ Mot.
Amend.”).1 District Defendants take no position on the motion. See Pls.’ Mot. Amend at 1.
Individual Defendant Schulz opposes the motion insofar as it seeks to add the new negligence
count, arguing that (1) Plaintiffs’ counsel brings this action in bad faith because the proposed
negligence count was added only after Plaintiffs’ counsel learned that Ms. Schulz’s car and
homeowner’s insurance policies do not cover intentional torts, and (2) Plaintiffs’ allegations of
intentional torts and negligence are contradictory. See Def. Schulz’s Opp’n Pls.’ Mot. Leave File
Second Am. Compl. (“Def.’s Opp’n”) at 1–3, ECF No. 35. Ms. Schulz also seems to suggest
that (3) the new count does not state a claim for negligence because it “references no specific
duty and simply references [Ms. Schulz]’s duty to ‘act reasonably.’” Def.’s Opp’n ¶ 5. Because

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The Court provided a detailed factual background in its previous memorandum opinion.
See Sherrod v. McHugh, No. 16-cv-0816, 2017 WL 627377, at *1–*4 (D.D.C. Feb. 15, 2017).
The Court assumes familiarity with the facts of the case.

Ms. Schulz’s first argument is insufficient to justify denying leave to amend and her second two
arguments were largely rejected in the Court’s previous memorandum opinion, Plaintiff’s motion
to amend will be granted.
The Court rejects Ms. Schulz’s argument that the claim was added in bad faith. Under
Rule 15(a)(2), leave to amend should be freely given when justice so requires. “In the absence
of any apparent or declared reason—such as 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 allowance of the amendment, futility of amendment,
etc.—the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis, 371 U.S.
178, 182 (1962). Under some circumstances, motions to amend that are intended to avoid
summary judgment or otherwise “muddy the waters” of a court’s resolution of the case may be
denied as brought in bad faith. See Hoffmann v. United States, 266 F. Supp. 2d 27, 34 (D.D.C.
2003), aff’d, 96 F. App’x 717 (Fed. Cir. 2004). However, parties may move to amend to “clarify
and amplify” the allegations in their complaint in light of facts learned during discovery and
arguments made by the opposition. United States ex rel. Westrick v. Second Chance Body
Armor, Inc., 301 F.R.D. 5, 7 (D.D.C. 2013). Courts are more likely to hold that motions to
amend are brought in bad faith when the proposed amendments are similar to already-rejected
claims or otherwise unlikely to succeed on their face. See Hoffmann, 266 F. Supp. 2d at 34.
Preventing a party from amending her complaint on the basis of bad faith generally requires an
affirmative showing by the nonmoving party. Roller Bearing Co. of Am. v. Am. Software, Inc.,
570 F. Supp. 2d 376, 386 (D. Conn. 2008) (citing Monahan v. New York City Dep’t of Corr., 214
F.3d 275, 283–84 (2d Cir.2000)). Such a showing often requires extrinsic evidence. See Adams
v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984).

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Ms. Schulz does not show that Plaintiffs move to amend their complaint in bad faith. She
has merely, in conclusory terms, asserted that the Sherrods amended their complaint based on the
information they learned about Ms. Schulz’s insurance coverage. She cites to no authority
supporting her assumption that such a motivation constitutes “bad faith,” nor does Ms. Schulz
argue that the amendment would make discovery or litigation more complicated moving
forward. See generally Def.’s Opp’n. But even if amending one’s complaint based on the
likelihood of recovery could be considered questionable (as opposed to strategic), Ms. Schulz
has not factually supported her argument with more than conclusory assertions, let alone
extrinsic evidence. See generally Def.’s Opp’n. And, the proposed claim is not duplicative or
patently unlikely to succeed; as shown below, Plaintiffs state a cognizable negligence claim. The
Court thus rejects Ms. Schulz’s argument that the motion to amend the complaint was brought in
bad faith.
Ms. Schulz’s second argument—that amending the complaint would be futile because the
negligence count contradicts the intentional tort claim—fares no better than her first. “A party
may state as many separate claims or defenses as it has, regardless of consistency.” Fed. R. Civ.
P. 8(d)(3). As noted in the Court’s previous memorandum opinion, plaintiffs are generally
entitled to allege both intentional torts and negligence based on the same factual transaction.
Sherrod v. McHugh, No. 16-cv-0816, 2017 WL 627377, at *7 (D.D.C. Feb. 15, 2017). A
“plaintiff may continue to allege . . . inconsistent theories so long as she does not recover
damages on both claims.” Dingle v. District of Columbia, 571 F. Supp. 2d 87, 99 (D.D.C. 2008);
see also Harvey v. Kasco, 109 F. Supp. 3d 173, 179 (D.D.C. 2015). To add a negligence count
to a complaint alleging intentional torts, the negligence cause of action must be “distinctly pled”
and “‘based upon at least one factual scenario that presents an aspect of negligence’ distinct from

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the [intentional tort] itself.” Id. at *7 (quoting Dormu v. District of Columbia, 795 F. Supp. 2d 7,
30 (D.D.C. 2011)). Plaintiffs’ amended complaint distinctly pleads the negligence count and the
intentional torts counts. See Proposed Am. Compl. ¶¶ 84–89; 118–23; 171–75. The counts are
also based upon distinct factual scenarios: the allegations of intentional torts allege that Ms.
Schulz intentionally filed false police reports while the negligence count alleges that she owed a
duty to the Sherrods to prevent them from being unlawfully arrested and to withdraw her false
complaint. See Proposed Am. Comp. ¶¶ 171–75. Because Plaintiffs are entitled to “state as
many separate claims or defenses as it has, regardless of consistency,” their proposed
amendment would not be futile.
Ms. Schulz’s final argument—that the negligence claim does not specifically describe the
duty Ms. Schulz owed to Plaintiffs—also comes up short. “A uniform standard of care applies in
actions for negligence [in the District of Columbia]: reasonable care under the circumstances.”
Sherrod, 2017 WL 627377 at *6 (quoting O’Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982)). A
plaintiff need not further describe the applicable standard of care. See id.; see also Fed. R. Civ.
P. 8(a) (“[A] claim for relief must contain . . . a short and plain statement of the claim showing
that the pleader is entitled to relief.”). The Court squarely addressed this issue in its previous
memorandum opinion. See Sherrod, 2017 WL 627377 at *6. In fact, there the Court found
Plaintiffs’ claims plausible even though they did not explicitly state that the defendants owed
District Defendants a duty of reasonable care under the circumstances. See id. There is no basis
for Ms. Schulz’s cursory argument that Plaintiffs are required to plead a more specific duty than
the default “reasonable care under the circumstances.” Accordingly, is hereby:
ORDERED that Plaintiffs’ Motion for Leave to File a Second Amended Complaint
(ECF No. 32) is GRANTED. It is

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FURTHER ORDERED that Plaintiff’s Second Amended Complaint (ECF No. 32-4) is
DEEMED FILED.
SO ORDERED.
Dated: April 7, 2017

RUDOLPH CONTRERAS
United States District Judge

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