Long v. O'Reilly's Automotive Stores Inc et al

Filing 86

ORDER denying 80 Motion for Reconsideration ; denying 80 Motion to Amend/Correct. Signed by Honorable Mary G Lewis on 6/23/14.(alew, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Mark Long,

)
)
Plaintiff,
)
v.
)
)
O’Reilly’s Automotive Stores, Inc., )
R.F. Jones Construction , LLC,
)
Rubin F. Jones, individually, Jerry )
Trotter Construction, LLC, and Jerry )
Trotter, Individually,
)
)
Defendants.
)
______________________________)

Civil Action No. 6:12-901-MGL

ORDER AND OPINION

This matter is before the court on Plaintiff Mark Long’s (“Plaintiff”) motion to reconsider
and amend, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure and the court’s December
12, 2013 order dismissing Plaintiff’s negligence per se cause of action. For the reasons set forth
below the court denies the motion. (ECF No. 80.)
FACTUAL AND PROCEDURAL BACKGROUND
On March 30, 2012, Plaintiff filed the underlying action against Defendants as well as former
Defendants Anderson Engineering, Inc. and Neil S. Brady alleging state law causes of action for
nuisance, negligence, negligence per se, trespass and common law diversion of water for damage
to Plaintiff’s home allegedly arising out of the construction of Defendant O’Reilly’s Automotive
Store in Clinton, South Carolina. (ECF No. 1.) On March 7, 2013, the court granted former
Defendants Anderson Engineering, Inc. and Neil S. Brady’s motion to dismiss. (ECF No. 42.) In
its March 7, 2013 order, the court notified Plaintiff of deficiencies with his cause of action for
negligence per se. Thereafter, Plaintiff filed an amended complaint on June 20, 2013, and a second

1

amended complaint on June 24, 2013. (ECF Nos. 57 & 58.) However, Plaintiff made no effort to
cure the deficiencies identified in his negligence per se claim.
On October 30, 2013, Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1),
12(b)(6) and 12© arguing inter alia that Plaintiff failed to plead facts sufficient to establish subject
matter jurisdiction, specifically the amount in controversy, and that Plaintiff failed to state claims
upon which relief could be granted. (ECF Nos. 69 & 71.) Plaintiff filed responses in opposition and,
as alternative relief, requested leave to amend. (ECF Nos. 73 & 74.) The court dismissed Plaintiff’s
negligence per se cause of action on December 12, 2013, for “the same reasoning set forth in the
court’s Order of March 7, 2013".1 (ECF No. 77.) In the court’s March 7, 2013 order, it dismissed
Plaintiff’s negligence per se cause of action due to Plaintiff’s failure to meet the pleading
requirements of Fed.R.Civ.P. 8. The court noted that Plaintiff failed to allege any specific section
of the South Carolina Stormwater Management and Sediment Reduction Act, S.C. Code Ann. §§
48-14-10 et seq. and its accompanying Regulations §§ 72-300-316 (2012) (“the Stormwater Act”)
that was breached, how the breaches occurred or how the breaches proximately caused Plaintiff’s
damages. Plaintiff contends that the Stormwater Act provides the basis for his claims of negligence
per se. The court granted Plaintiff leave to amend with regard to the amount-in-controversy.
Plaintiff moved for reconsideration on January 9, 2014. (ECF No. 80.)
STANDARD OF REVIEW
Motion to Reconsider
Pursuant to Fed.R.Civ.P. 54(b) the court retains the power to reconsider and modify its

1

Since the court dismissed Plaintiff’s negligence per se claim, it did not address
Plaintiff’s requested alternative relief for leave to amend this cause of action.
2

interlocutory judgments. Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th
Cir.2003). This power of reconsideration is committed to the discretion of the district court. See
Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 74 L.Ed.2d
765 (1983) (noting that “every order short of a final decree is subject to reopening at the discretion
of the district judge”).
Although the Fourth Circuit Court of Appeals has not specifically articulated the standard
for evaluating a motion for reconsideration filed under Rule 54(b), the Court has held motions under
Rule 54(b) are “not subject to the strict standards applicable to motions for reconsideration of a final
judgment.” Am. Canoe Ass'n, 326 F.3d at 514. District courts in the Fourth Circuit look to the
standards of motions under Fed.R.Civ.P. 59 for guidance. R.E. Goodson Constr. Co., Inc. v. Int'l
Paper Co., C/A No. 4:02–4184–RBH, 2006 WL 1677136, at *1 (D.S.C. June 14, 2006); Akeva
L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d 559, 565–66 (M.D.N.C.2005). As such, appropriate
reasons for granting reconsideration under Rule 54 are: (1) to follow an intervening change in
controlling law; (2) on account of new evidence; or (3) to correct a clear error of law or prevent
manifest injustice. Beyond Sys., Inc. v. Kraft Foods, Inc., C/A No. PJM–08–409, 2010 WL
3059344, at *2 (D.Md. Aug.4, 2010) (“This three-part test shares the same three elements as the
Fourth Circuit's test for amending an earlier judgment under Rule 59(e), but the elements are not
applied with the same force when analyzing an interlocutory order.”)
Motion to Amend
Generally, “the court should freely give leave [to amend] when justice so requires.”
Fed.R.Civ.P.15(a). However, when the request to amend pleadings is filed beyond the expiration
of the pleading deadlines set forth in the court's scheduling order, the movant must first show "good

3

cause" for the late filing pursuant to Federal Rules of Civil Procedure 16(b). Nourison Rug Corp.
v. Parvizian, 535 F.3d 295, 298 (4th Cir.2008); see, e.g., Montgomery v. Anne Arundel County, 182
Fed. Appx. 156, 162, 2006 WL 1194308 (4th Cir. 2006). Rule 16(b) provides that the court's
scheduling order “may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P.
16(b)(4).
To show good cause, the moving party must "show that the deadlines cannot reasonably be
met despite the diligence of the party needing an extension." Vercon Const., Inc. v. Highland Mortg.
Co., 187 Fed. Appx. 264, 265, 2006 WL 1747115 (4th Cir. 2006) (citing 6A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure Civ.2d, § 1522.1). The court
must focus on the reasons the movant "has given for his delay instead of the substance of the
proposed amendment." Lurie v. Mid-Atlantic Permanente Medical Group, P.C., 589 F.Supp. 2d 21,
2008 WL 5205909 (D.D.C. 2008); see also Nourison Rug Corp., 535 F.3d at 297 (discussing the
lack of justification for the tardy filing of a motion to amend).
If the movant shows good cause under Rule 16, the court may then consider whether the
requested amendment is proper under Rule 15(a). Under the latter rule, a "motion to amend should
be denied only where it would be prejudicial, there has been bad faith, or the amendment would be
futile." Nourison Rug Corp., 535 F.3d at 298, citing HCMF Corp. v. Allen, 238 F.3d 273, 276-77
(4th Cir. 2001); see Fed.R.Civ.P. 15.
DISCUSSION
In light of these standards, the court has carefully reviewed Plaintiff’s motion to reconsider
and to amend and concludes that there is no basis for this court to modify its December 12, 2013
order. Plaintiff does not argue that there has been an intervening change in the law or that he has

4

new evidence that was previously unavailable. Rather, Plaintiff contends that the court must
reconsider and amend its December 12, 2013 order to prevent manifest injustice as Plaintiff asserts
that Defendants have “engaged in reckless and/or willful and purposeful conduct by violating a
standard of care that is explicitly created by statute and regulation.” (ECF No. 80 at 11.) Plaintiff
states that negligence per se is designed to remedy this type of conduct.
As the complaint presently stands, Plaintiff has failed to meet the pleading requirements
of Rule 8 for his cause of action for negligence per se. Plaintiff asks the court to exercise its
discretion to reconsider and amend the portion of its December 12, 2013 order dismissing his cause
of action for negligence per se and “implicitly denying Plaintiff’s motion to amend with regard to
negligence per se.” (ECF No. 80 at 1.) Plaintiff asserts that he cured the deficiencies noted by the
court in his November motion. (See ECF No. 80 at 5.)
Under the scheduling order in this case, motions to amend pleadings were required to be
filed no later than October 30, 2013. (ECF No. 56.) To date, Plaintiff has not filed a motion to
amend. Instead, on November 18, 2013, as alternative relief in his opposition to Defendants’
motions to dismiss, Plaintiff requested leave to amend his complaint to state an amount in
controversy and to amend if the court found his allegations regarding negligence per se insufficient.
Upon review, it appears that Plaintiff had ample opportunity to move to amend the scheduling order
but failed to avail himself to that opportunity. Further, Plaintiff offers no explanation as to why he
did not comply with the scheduling order deadlines and thus fails to satisfy the good cause standard
of Rule 16(b). As Plaintiff has not shown good cause as required under rule 16(b) to seek leave to
amend outside the scheduling order deadlines, his request for reconsideration and leave to amend
must be denied. Further, even if Plaintiff could satisfy the good cause standard of Rule16(b), an

5

amendment with regard to Plaintiff’s cause of action for negligence per se would be futile. See In
Re PFC Solutions, Inc. Sec. Litif., 418 F.3d 379, 391 (4th Cir. 2005) (“Leave to amend need not be
given when the amendment would be futile.”). “A proposed amendment is futile if the amendment
could not withstand a Rule 12(b)(6) motion to dismiss.” In re MI Windows and Doors, Inc.
Products Liability Litigation, 2014 WL 3207423 (D.S.C. June 24, 2013).
In the court’s March 7, 2013 order, the court indicated the requirements necessary to state
a claim for negligence per se:
“Negligence per se is negligence arising from a defendant’s violation of a statute.”
Wogan v. Knunze, 366 S.C. 583, 623 S.E.2d 107, 117-118 (S.C. Ct. App.2005).
Negligence per se is established by showing a statute created a duty to the plaintiff
and the defendant breached that duty. A statute must permit a private cause of action
in order for plaintiffs to maintain a civil suit. (ECF No. 42 at 11.)

In the court’s March order the court expressed concern as to whether the South Carolina
Stormwater Act gives rise to a private cause of action for negligence per se. The court stated that
“Plaintiff has not cited and this Court has not found a South Carolina case wherein the Court has
found that §§ 48-14-10 et seq. and its accompanying Regulations §§ 72-300-72-316 permit a private
cause of action.” (ECF No. 42.) At this juncture of the proceedings, the court has the same concerns
that were expressed in its March order. Plaintiff still has not cited any case that supports a private
cause of action for negligence per se under the Stormwater Act. As such, even if the court were to
modify its December 2013 order to allow Plaintiff to amend his claim for negligence per se, the
amendment would be futile because it could not survive a Rule 12(b)(6) motion.
To the extent that Plaintiff suggests that the court’s treatment of Plaintiff’s request to amend
to address subject matter jurisdiction was dealt with differently than his request to amend his
negligence per se cause of action, the court notes only that it has an independent obligation to assess
6

its subject-matter jurisdiction. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d
474, 480 (4th Cir.2005). Subject matter jurisdiction can be raised by either party, or sua sponte by
the court, at any time. See, e.g., In re Kirkland, 600 F.3d 310, 314 (4th Cir.2010.) Fed.R.Civ.P.
12(h)(3) allows the court to dismiss an action at any time if it determines it lacks subject matter
jurisdiction. Plaintiff has the burden of proving that subject matter jurisdiction exists. Because
Defendants questioned this court’s subject matter jurisdiction, the court exercised its discretion to
allow Plaintiff the opportunity to amend his complaint to state a sum certain, albeit Plaintiff’s
motion being untimely under the scheduling order.
CONCLUSION
For the foregoing reasons and upon review of the memoranda submitted and applicable
law, the court denies Plaintiff’s Motion to Reconsider and Amend. (ECF No. 80.)
IT IS SO ORDERED.
/s/ Mary G. Lewis
United States District Judge
June 23, 2014
Spartanburg, South Carolina

7