Hare v. Opryland Hospitality, LLC
Filing
88
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/15/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOSHUA HARE
:
v.
:
Civil Action No. DKC 09-0599
:
OPRYLAND HOSPITALITY, LLC
:
MEMORANDUM OPINION
Presently pending and ready for review is the motion of
Plaintiff Joshua Hare for voluntary dismissal or to reconsider
the
court’s
order
(ECF No. 71).
and
opinion
of
September
17,
A hearing was held and the parties have submitted
supplemental memoranda in support of their positions.
81,
83,
85,
2010.
86).
For
the
reasons
that
follow,
(ECF Nos.
Plaintiff’s
motion will be granted in part and denied in part.
I.
Background
The facts of this case have already been set forth in ECF
No.
43,
and
will
be
summarized
only
briefly
here.
On
the
evening of July 28 and the morning of July 29, 2008, Plaintiff
attended an event called the “White Party” at the Pose Ultra
Lounge,
Center
part
at
of
the
National
Opryland Hospitality.
Gaylord
Harbor,
National
a
Resort
property
owned
and
by
Convention
Defendant
At the end of the party, around 3:00 or
3:30 a.m., Plaintiff’s group was approached by security guards
who asked them to leave.
One of Plaintiff’s friends got into an
argument with a busboy and security guards.
ensued
between
Plaintiff
and
a
security
An altercation then
guard
named
Karl
Hedgeman, and Plaintiff alleges that he was struck in the face
with a bottle by Mr. Hedgeman.
Plaintiff suffered a facial
laceration and has a permanent scar as a result of the events
that night.
The
relevant
procedural
background
initially
filed
complaint
Plaintiff
November 28, 2008.
his
is
in
as
follows.
state
court
on
The case was removed to federal court and
Plaintiff filed his first amended complaint on March 10, 2009.
The amended complaint alleged that (1) Defendant was liable for
Plaintiff’s
because
injuries
Mr.
Hedgeman
employment
at
Defendant
was
training.
under
the
was
time
liable
(ECF No.
the
6).
acting
he
for
theory
of
within
the
close
summary judgment.
of
the
scope
of
his
that
(2)
Plaintiff
negligent
hiring,
retention,
and
proceeded
throughout
the
Discovery
discovery,
(ECF No. 22).
Defendant
and
superior
injured
spring, summer, and early fall of 2009.
after
respondeat
On November 18, 2009,
filed
a
motion
for
In its reply brief, Defendant
remarked in a footnote that Plaintiff did not have a pending
claim of negligent supervision.
(ECF No. 35, at 4 n.1).
On
January 25, 2010, Plaintiff responded by filing a motion for
2
leave to file a second amended complaint that included a claim
of
negligent
supervision
as
well
as
claims
that
Opryland’s
employees mishandled the closing procedures and that Opryland
negligently trained staff other than Mr. Hedgeman.
(ECF No.
38).
This court ruled on Plaintiff’s motion for leave to file a
second amended complaint in an order and accompanying memorandum
opinion on September 17, 2010.
(ECF Nos. 43, 44).
motion was granted in part and denied in part.
Plaintiff’s
The opinion
stated that it was “far too late in this case for Plaintiff to
add
new
claims
against
Defendant
relating
to
Defendant’s
supervision and training of employees other than Mr. Hedgeman.”
(ECF No. 43, at 8).
Plaintiff was permitted to add allegations
pertaining to Defendant’s hiring, training, and retention of Mr.
Hedgeman
in
paragraphs
8(D)
and
8(E)
of
the
second
amended
complaint because these counts did not significantly change the
scope of the case, but Plaintiff had not established good cause
to amend the complaint to include the other requested claims or
that doing so would not be prejudicial to Defendant.
(Id.).
When the court’s opinion was issued, Plaintiff did not move for
reconsideration within the time permitted under the Local Rules,
nor did he file an amended complaint with the permitted claims
from paragraphs 8(D) and 8(E).
3
Nearly
three
months
later,
on
December
13,
2010,
parties appeared for a pretrial conference in chambers.
the
At that
time, counsel for Plaintiff indicated that he had interpreted
the court’s September 17th ruling to permit Plaintiff to present
at
trial
a
supervision
claim
of
that
Mr.
Defendant
Hedgeman.
was
liable
Plaintiff’s
for
negligent
counsel
explained
then, and in his subsequent written request for reconsideration,
that
he
claims
had
understood
related
employees
to
other
Following
the
prior
negligent
than
the
Mr.
training
Hedgeman.”
pretrial
to
bar
and
71,
at
6).
Plaintiff
filed
the
voluntary
dismissal.
(Id.).
A hearing on the motion was held in court on December
After
the
hearing,
or
No.
of
motion
2010.
reconsideration
those
supervision
(ECF
conference
“only
present
21,
for
ruling
Plaintiff
submitted
two
supplements to its motion, Defendant submitted a response in
opposition, and Plaintiff submitted a reply.
(ECF Nos. 81, 83,
85, 86).
II.
Analysis
Before
addressing
the
merits
of
Plaintiff’s
alternative
requests for relief, some context regarding the nature of the
claim Plaintiff is seeking to add to the case may be useful.
Plaintiff seeks to add the claim that Defendant is liable
for
its
negligent
supervision
of
4
Mr.
Hedgeman,
the
security
guard
who
is
Specifically,
alleged
to
Plaintiff
have
hit
contends
Plaintiff
that
there
in
was
the
an
face.
Opryland
manager present in the Pose Ultra Lounge at the time of the
altercation who should have intervened to supervise and prevent
Mr. Hedgeman from hitting the Plaintiff.
contends
that
this
manager
can
be
Plaintiff’s counsel
seen
in
the
surveillance
videos from the night of June 28, 2008, wearing a white sport
coat that distinguishes him from the other Opryland staff and
security
who
were
wearing
black.
Counsel
indicated
at
the
hearing that his belief that the individual was a manager is
based on information from his client, Plaintiff Hare.
Plaintiff
allegedly overheard this individual telling Mr. Hedgeman to go
into
his
office
after
Plaintiff
was
hit,
and
Plaintiff
subsequently learned that the individual was a manager named
Anthony.
In addition, counsel proffered that a few days after
the altercation when Plaintiff called the Pose Ultra Lounge and
asked
to
speak
with
the
manager
named
Anthony
about
the
incident, the individual who came to the phone told Plaintiff to
speak with the lawyers.
After the hearing, Plaintiff submitted a supplement to his
motion
that
provided
additional
record
support
for
his
contention that the individual shown in the surveillance video
was a manager who should have intervened to stop Mr. Hedgeman.
5
(See
ECF
No.
81,
at
5-6).
Plaintiff
pointed
to
his
own
deposition testimony noting that “the general manager was there”
the
night
Plaintiff
of
he
the
was
altercation
the
and
general
that
manager
the
and
Omari confirmed that he was the manager.
ECF No. 81-5, at 46, 62).
individual
Plaintiff’s
told
friend
(Id. at 5) (citing
Plaintiff also testified that he
recalled the manager’s name was Anthony and that later in the
evening
Anthony
told
Plaintiff
to
(citing ECF No. 81-5, at 61-63).
give
him
a
call.
(Id.)
In addition, Plaintiff offers
the deposition testimony of Quinette Leflore, a potential trial
witness, that, following the altercation, a manager walked by
her with Mr. Hedgeman and told him to “go to my office, you need
to go to my office, just go there and stay there.”
(citing ECF No. 81-7, at 20-21).
(Id. at 6)
Plaintiff also points to the
more equivocal testimony of his friend James Turner who stated
that right after the incident he “spoke to the manager or – may
have been the manager of Pose that night.”
at 37).
(Id.; ECF No. 81-8,
In his second supplement, Plaintiff explained that he
had conducted internet searches and learned the full identity of
the
individual
in
the
surveillance
videos
from
newspaper
reports; he was the general manager of Pose Ultra Lounge in June
2008, Anthony Rakis.
contends
that
(ECF No. 83, at 1-2).
Defendant
Opryland
6
knew
the
Plaintiff also
identity
of
this
individual
since
at
least
July
2009
but
did
not
properly
identify him in response to an interrogatory asking for the
identity of all individuals with knowledge of facts related to
the case.
(Id. at 6).
Counsel for Defendant Opryland stated at the hearing that
he
did
not
know
the
identity
of
the
individual
in
the
surveillance videos and had not discussed the issue with his
client.
In its opposition to Plaintiff’s motion, filed after
the hearing, Defendant spends little time on this issue and
instead focuses on its argument that Plaintiff cannot succeed in
its claim of negligent supervision because there is no evidence
to
show
that
Opryland
Hedgeman was dangerous.
knew
or
should
have
(ECF No. 85, at 1-6).
known
that
Mr.
Defendant does
point out that Mr. Rakis was one of two individuals with the
name Anthony included in a letter dated July 30, 2009, that
provided the names of Opryland employees working at the Pose
Ultra Lounge on June 28-29, 2008 (ECF No. 74-12), and Defendant
avers that Mr. Rakis’s name was omitted from its interrogatory
responses due to a drafting error.
(ECF No. 85, at 7 n.6).
Defendant also notes that Plaintiff has no evidence that Mr.
7
Rakis had supervisory authority over Mr. Hedgeman.
(ECF No.
85).1
In
Maryland,
the
elements
of
a
claim
for
negligent
supervision are typically combined with the elements of claims
for negligent hiring and retention.
The courts have stated that
“[i]n order to prove a cause of action for either negligent
hiring or supervision or retention, the Plaintiff must establish
that [his] injury was caused by the tortious conduct of [an
employee], that the employer knew or should have known by the
exercise of diligence and reasonable care that the [employee]
was capable of inflicting harm of some type, that the employer
failed to use proper care in selecting, supervising or retaining
that employee, and that the employer’s breach of its duty was
the proximate cause of the Plaintiff’s injur[y].”
Bryant v.
Better Bus. Bureau of Greater Md., Inc., 923 F.Supp. 720, 751
(D.Md. 1996); see also Williams v. Cloverleaf Farms Dairy, Inc.,
78 F.Supp.2d 479, 483 (D.Md. 1999).
Although the Fourth Circuit
has stated when applying South Carolina law that an employer may
be held liable under a theory of negligent supervision for a
failure to exercise reasonable care to control an employee from
1
Defendant also brings to the court’s attention the fact
that
Opryland’s
30(b)(6)
deponent
identified
two
other
individuals, Damon Ivory and Craig Carney, as Mr. Hedgeman’s
supervisors the night of June 29, 2008, and that Plaintiff never
requested to depose these individuals. (ECF No. 85, at n.7).
8
intentionally
harming
third
parties
while
acting
outside
the
scope of his employment, see, e.g., Davis v. USX Corp., 819 F.2d
1270, 1274 (4th Cir. 1987), this formulation has never been used
in Maryland or by a court applying Maryland law.
Plaintiff’s
theory
of
negligent
supervision
seems
to
be
that Defendant Opryland, acting through a manager/supervisor on
site
the
night
of
the
altercation,
failed
to
intervene
to
prevent Mr. Hedgeman from injuring the Plaintiff and is thus
liable.
Unlike
Plaintiff
is
Opryland
under
a
typical
essentially
the
negligent
attempting
doctrine
of
supervision
to
impose
respondeat
claim,
liability
superior
actions of an employee other than Mr. Hedgeman.
here
for
on
the
To succeed on
such a claim Plaintiff must first establish that the alleged
manager from the surveillance video was an Opryland employee,
that
he
had
supervisory
responsibilities,
that
he
had
the
authority to supervise or control Mr. Hedgeman that evening,
then that he had the requisite knowledge that Mr. Hedgeman was
about to do something he should not, and finally, the ability to
control him.
Plaintiff must also prove that the manager was
acting within the scope of his employment when he failed to
intervene to stop Mr. Hedgeman.
9
A.
Standard of Review for Motion for Voluntary Dismissal
Plaintiff
argues
that
the
case
should
be
voluntarily
dismissed without prejudice pursuant to Rule 41(a)(2) so that he
can immediately file a new complaint after dismissal with the
negligent supervision claim.2
maintains
that
litigation
a
would
Defendant opposes this motion and
voluntary
result
dismissal
in
at
substantial
this
stage
prejudice
in
the
to
its
interests.
Fed.R.Civ.P. 41(a)(2) allows for dismissal by court order
after the opposing party has served either an answer or motion
for summary judgment and without consent of all parties who have
appeared.
It provides that “an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court
considers proper.”
Id.
The purpose of Rule 41(a)(2) is “to
allow voluntary dismissals unless the parties will be unfairly
prejudiced.”
decision
to
Davis, 819 F.2d at 1273 (citations omitted).
grant
or
deny
a
voluntary
dismissal
under
The
Rule
41(a)(2) “is a matter for the discretion of the district court,
and its order will ordinarily not be reversed except for an
abuse of discretion.”
2
Id.
The factors that should guide a
Plaintiff filed a new action on May 26, 2011, which has
been stayed pending resolution of the motions in this case.
Hare v. Opryland Hospitality, LLC and Anthony Rakis, DKC 111439.
10
district court in deciding a motion under Rule 41(a)(2) include
“the opposing party’s effort and expense in preparing for trial,
excessive delay and lack of diligence on the part of the movant,
insufficient explanation of the need for a voluntary dismissal,
and
the
present
stage
of
litigation.”
Miller
v.
Terramite
Corp., 114 F.App’x. 536, 540 (4th Cir. 2004) (quoting Phillips
USA, Inc., v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir.
1996)).
The potential prejudice to the non-moving party is a
key factor, but the Fourth Circuit has recognized that “[its]
jurisprudence
on
prejudice
to
voluntary
dismissal
ambiguity.”
a
the
issue
nonmovant
under
to
of
what
support
Rule
constitutes
denial
41(a)(2)
is
of
a
not
sufficient
motion
for
free
from
Howard v. Inova Health Care Servs., 302 F.App’x
166, 179 (4th Cir. 2008), cert. denied, 129 S.Ct. 2766 (2009).
The Fourth Circuit in Howard further explained:
In Davis, we noted that “[i]t is well
established that, for purposes of Rule
41(a)(2), prejudice to the defendant does
not result from the prospect of a second
lawsuit”
or
“the
possibility
that
the
plaintiff will gain a tactical advantage
over the defendant in future litigation.”
819 F.2d at 1274-75. Similarly, in Fidelity
Bank PLC v. N. Fox Shipping N.V., we held
that “the mere filing of a motion for
summary judgment is not, without more, a
basis
for
refusing
to
dismiss
without
prejudice.”
242 F.App’x 84, 89 (4th Cir.
2007) (quoting Andes [v. Versant Corp.], 788
F.2d 1033, 1036 n.4 [(4th Cir. 1986)]
(internal
quotations
and
alterations
11
omitted)).
However, we have also found on
multiple occasions that a district court
does not abuse its discretion in denying a
motion for voluntary dismissal if the case
has advanced to the summary judgment stage
and the parties have incurred substantial
costs in discovery.
See, e.g., Miller, 114
F.App’x at 540 (affirming district court’s
decision
that
plaintiff’s
motion
for
voluntary dismissal was “untimely and would
waste judicial resources” because the motion
was filed well after discovery had closed
and a dispositive order was imminent);
Francis v. Ingles, 1 F.App’x 152, 154
(4th Cir. 2001) (affirming district court’s
denial
of
motion
to
dismiss
without
prejudice because the “plaintiff’s motion
came after a lengthy discovery period and
merely one week before the scheduled trial
date” and because “the motivation for the
motion appeared to be to circumvent” a
discovery ruling, which counsel could have
avoided “by deposing the witness within the
discovery period”); Skinner v. First Am.
Bank of Va., 64 F.3d 659, 1995 WL 507264, at
*2-3 (4th Cir. 1995) (stating that “[t]he
expenses of discovery and preparation of a
motion for summary judgment may constitute
prejudice sufficient to support denial of a
voluntary
dismissal”
and
noting
that
granting a motion to dismiss is not required
to allow a party to “avoid an adverse ruling
in federal court”); Sullivan v. Westinghouse
Elec. Corp., 848 F.2d 186, 1988 WL 54059, at
*2 (4th Cir. 1988) (“Given the advanced stage
of the proceedings, the district court’s
denial of [the plaintiff’s] motion was not
an abuse of discretion.”).
Howard,
302
F.App’x
at
179-80.
Ultimately
the
decision
is
highly discretionary.
Here, the balance of factors does not tip in Plaintiff’s
favor.
Plaintiff’s motion came on the eve of trial after the
12
parties had completed discovery, summary judgment briefing, and
significant pretrial preparations including the submission of
proposed
voir
dire,
jury
instructions,
multiple motions in limine.
verdict
forms,
and
While Plaintiff insists that none
of the discovery or expenses Defendant has already incurred will
be wasted because the new case that will be filed immediately
will involve the same claims plus negligent supervision (ECF No.
71,
at
9),
at
the
hearing
Defendant
aptly
noted
the
unpredictability of litigation and the strong likelihood that a
dismissal
would
result
in
additional
depositions
and
the
potential need to rebrief many issues.
Indeed, it is highly
unlikely
would
that
a
dismissal
and
refiling
not
result
in
substantial delays and increased costs for both parties as well
as the court.
These costs would be only partially allayed by
Plaintiff’s offer to pay for additional expenses incurred by
Defendant as a result of the voluntary dismissal and refiling.
In
addition,
Plaintiff’s
throughout
conduct
has
diligence and motivation.
the
course
repeatedly
of
this
demonstrated
litigation
a
lack
of
Plaintiff’s expert reports were not
prepared and produced in accordance with the scheduling order
nor did Plaintiff timely request a modification of its deadlines
(See ECF No. 43, at 25-26).
request
for
leave
to
file
As discussed above, Plaintiff’s
a
13
second
amended
complaint
was
extremely
late
and
Plaintiff’s
motion
for
reconsideration/voluntary dismissal was filed over three months
after the court issued its opinion denying the request for leave
to amend.
Finally, the present stage of the litigation weighs against
permitting a voluntary dismissal.
Plaintiff’s request came not
merely after summary judgment, but on the eve of trial.
parties
and
the
court
have
expended
resources in preparing for trial.
significant
time
Both
and
A voluntary dismissal would
not only further delay an ultimate resolution on the merits, but
also be inefficient and costly.
For all these reasons, Plaintiff’s request for a voluntary
dismissal will be denied.
B.
Standard of Review for Motion for Reconsideration
In the alternative Plaintiff moves for reconsideration of
the court’s prior ruling denying leave to amend his complaint to
add a claim of negligent supervision.
The court has discretion
whether to reconsider an interlocutory ruling, although Local
Rule 105.10 mandates that motions for reconsideration be filed
“not later than fourteen (14) days after entry of the order.”
Plaintiff argues that he should have been allowed to amend
his complaint under Fed.R.Civ.P. 15, which provides that courts
should freely give leave to a party to amend when justice so
14
requires, even as late as during trial, “when doing so will aid
in
presenting
the
merits
and
the
objecting
party
fails
to
satisfy the court that the evidence would prejudice that party’s
action or defense on the merits.”
Fed.R.Civ.P.
15(b)(1)).
(ECF No. 71, at 12) (citing
Plaintiff
contends
that
the
court’s
prior ruling stating that Rule 15 had to be read in connection
with Rule 16(b)’s requirement that good cause must be shown to
justify granting leave to amend was in error because it drained
the Rule 15 requirement of any meaning.
(Id.).
In support of
this view, Plaintiff relies on a 1973 opinion from the Fifth
Circuit.
Plaintiff also contends that both the Rule 15 and Rule
16 standards were met in its request for leave to amend.
(Id.
at 13-16).
In this circuit, prior case law makes clear that when the
scheduling
order’s
deadline
for
amending
the
pleadings
has
passed, the Rule 16 requirement that a party satisfy the good
cause
standard
must
be
prejudice under Rule 15.
met
before
considering
potential
See Nourison Rug Corp. v. Parvizian,
535 F.3d 295, 298 (4th Cir. 2008).
As noted in our September 17th
opinion, this rule is also applied in the First, Second, Fifth,
Sixth,
Eighth,
and
Eleventh
Circuits.
(ECF
No.
43,
at
7)
(citing O’Connell v. Hyatt Hotels, 357 F.3d 152, 154-55 (1st Cir.
2004); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d
15
Cir. 2000); S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA,
315 F.3d 533, 536 (5th Cir. 2003); Leary v. Daeschner, 349 F.3d
888, 906 (6th Cir. 2003); In re Milk Prods. Antitrust Litig., 195
F.3d 430, 437-38 (8th Cir. 1999); Sosa v. Airprint Sys., Inc.,
133 F.3d 1417, 1419 (11th Cir. 1998)).
The Fifth Circuit opinion
on which Plaintiff relies predates the Rule amendments in 1983,
which added subsection b to Rule 16, the relevant portion for
our purposes that addresses amendments to the scheduling order.
(See ECF No. 71, at 13) (citing Wallin v. Fuller, 476 F.2d 1204,
1208-09 (5th Cir. 1973) (holding that the district court should
have allowed amendment of a pretrial order to account for new
theories developed from facts presented at trial)).
In a more
recent opinion, the Fifth Circuit held that it would apply the
same rule as the Fourth Circuit does, specifically that “Rule
16(b) governs amendment of pleadings after a scheduling order
deadline has expired.
Only upon the movant’s demonstration of
good cause to modify the scheduling order will the more liberal
standard of Rule 15(a) apply to the district court’s decision to
grant or deny leave.”
S&W Enters., L.L.C., 315 F.3d at 536.
Plaintiff is incorrect that the court’s prior opinion used the
wrong standard.
A large portion of Plaintiff’s new motion merely reiterates
his arguments from his initial motion for leave regarding how
16
the good cause and prejudice standards have been met.
These
arguments were found lacking before and remain unconvincing.
In
his supplement, Plaintiff focuses on the argument that the topic
of
negligent
supervision
was
a
focus
of
discovery
as
it
proceeded in the case and is ready to be heard at trial without
the need for additional depositions.
(ECF No. 81, at 10-11).
Plaintiff allows, however, that in light of the trial date’s
postponement,
Opryland
should
have
time
to
take
whatever
additional discovery it requires and does not oppose a court
ordering
related
permitting
to
ECF No. 86,
the
at
Defendant
negligent
10).
to
take
supervision
Plaintiff
also
additional
claim.
argues
discovery
(Id.
that
at
11;
evidence
regarding the conduct of the manager in question is relevant to
Opryland’s defense of contributory negligence.
(ECF No. 81,
at 12).
The court would be well within its discretion to deny both
of Plaintiff’s requests and to order that the case proceed to
trial in its present state.
Yet this option would surely result
in substantial post-trial briefing and appeals and could delay
an
ultimate
resolution
on
the
merits
for
years.
Although
Defendant has formally opposed both of Plaintiff’s requests, it
may prefer to proceed on the merits to reach a resolution now,
rather than to prolong the process indefinitely.
17
Accordingly,
and
in
order
to
avoid
the
possibility
of
multiple trials, the court will permit Plaintiff to amend its
complaint to include a claim of negligent supervision of Mr.
Hedgeman
by
surveillance
the
alleged
film.
representations
at
Opryland
In
the
light
hearing
manager
of
visible
Plaintiff’s
regarding
his
in
the
counsel’s
readiness
to
proceed to trial on the new claim, he will not be permitted to
conduct any additional discovery regarding the additional claim.
But
Defendant
may,
if
it
wishes,
seek
leave
to
conduct
additional discovery limited to this new claim and any potential
defenses thereto.
III. Conclusion
For
the
foregoing
reasons,
Plaintiff’s
granted in part and denied in part.
motion
will
A separate Order will
follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
18
be
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