Kruglyak v. Home Depot U.S.A., Inc. et al

Filing 76

MEMORANDUM ORDER granting 36 Motion to Amend in so far as d/b/a Fruklyak, Inc. is removed from the caption of the Complaint, otherwise, the Motion to Amend is DENIED; denying 39 Motion for Declaratory Relief; granting 55 Second Motion to Re mand; a party may serve and file objections to the order within 14 days after being served with a copy; failure to file written objections to the Order within 14 days could waive appellate review. Signed by US Magistrate Judge Pamela Meade Sargent on 3/27/2024. (Memorandum Order was emailed and mailed via U.S. Mail to the Pro Se Party)(flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
VLADIMIR KRUGLYAK, d/b/a
Fruklyak, Inc.,
Plaintiff,
v.
HOME DEPOT U.S.A., INC.,
Defendant

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Civil Action No.: 1:22cv00024
MEMORANDUM ORDER

Plaintiff, Vladimir Kruglyak, doing business as Fruklyak, Inc., (“Kruglyak”),
initiated this civil action, pro se, against Home Depot U.S.A., Inc., (“Home Depot”),
and Karen J. Phoebus, (“Phoebus”),1 in state court. The defendants removed
Kruglyak’s claims to this court on June 3, 2022. Thereafter, Kruglyak moved the
court to remand his claims to state court, (Docket Item No. 8), but by Order dated
November 2, 2022, the motion was denied. (Docket Item No. 16.) Kruglyak seeks
to recover actual, treble and punitive damages, plus costs and attorney’s fees,2 for
various state and federal causes of action arising from the online purchase of a
bathtub.
The matter currently is before the court on Kruglyak’s Motion for Leave To
Amend The Complaint And Case Caption To Remove Fruklyak, Inc. And Add
1

By Order entered March 28, 2023, the court dismissed Phoebus as a defendant, pursuant
to Federal Rules of Civil Procedure Rule 12(b)(6), adopting the undersigned’s Report and
Recommendation in its entirety. (Docket Item Nos. 17, 19.) The district court, thereafter, denied
Kruglyak’s motions to reconsider, (Docket Item Nos. 21, 51), in a Memorandum Opinion entered
February 15, 2024. (Docket Item No. 63.)
2

Kruglyak’s Complaint does not explain how, as a pro se litigant, he would be entitled to
attorney’s fees.
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Defendants Alain Mendoza And Cindie Tipton, (Docket Item No. 36); Kruglyak’s
Motion For Declaratory Relief, (Docket Item No. 39); and Plaintiff’s Second Motion
To Remand, (Docket Item No. 55).
The motions were referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(A). A hearing was held on the motions on November 27, 2023,3 at which
the plaintiff appeared pro se.4 Based on the arguments and representations of the
parties at the hearing and contained in the pleadings, and for the reasons set out
below, the Motion For Declaratory Relief, (Docket Item No. 39), is DENIED, the
Motion to Amend, (Docket Item No. 36), is GRANTED in part and DENIED in
part, and Plaintiff’s Second Motion To Remand, (Docket Item No. 55), is
GRANTED.
Facts5

I.

By Complaint6 made under penalty of perjury and filed May 4, 2022,
Kruglyak stated that he is a homeowner and resident of Bristol, Tennessee. (Docket
3

The Motion to Remand was filed after this hearing.

4

Also at this hearing, the court heard arguments with regard to Kruglyak’s Motion For A
Preliminary Or Permanent Injunction, (Docket Item No. 31), and Home Depot’s Motion For
Summary Judgment, (Docket Item No. 33.) The undersigned disposed of these motions by Report
and Recommendation entered on February 6, 2024. (Docket Item No. 62.)
5

The “Factual Background” sections contained in the original Complaint and in
Kruglyak’s proposed Amended Complaint are the same.
6

Kruglyak’s Complaint listed causes of action for fraudulent misrepresentation, breach of
contract, violation of the Virginia Consumer Protection Act, breach of express and implied
warranties, unjust enrichment, constructive fraud, negligence and violation of the federal
Magnuson-Moss Warranty Act and the Uniform Commercial Code. In the February 6, 2024,
Report and Recommendation, the undersigned recommended granting summary judgment in favor
of Home Depot on all of these causes of action, except for the breach of contract claim. (Docket
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Item No. 1-3, (“Complaint”), at 2.) He stated that Home Depot is a nationwide retail
corporation with its principal office in Atlanta, Georgia. (Complaint at 2.) Kruglyak
further stated that Phoebus is a manager of the Bristol, Virginia, Home Depot store
and/or that she resides in Virginia. (Complaint at 2.)
Kruglyak stated that, on or about June 3, 2021, he found an advertisement of
an “Ariel 60 in. Center Drain Corner Alcove Whirlpool Bathtub in White” on Home
Depot’s website, www.homedepot.com, priced at $1,799 before tax with free
shipping. (Complaint at 2.) He stated that the tub “fitted by size and plumbing …
the plaintiff’s bathroom renovation project and had desired health benefitting
functions according to the advertisement.” (Complaint at 2-3.) Kruglyak attached
a printout of the screenshot of the tub’s web advertisement as Exhibit A to the
Complaint. (Complaint at 17-20.) Upon viewing the images and reading the
description of the tub, Kruglyak alleged that he believed the following regarding the
tub:
a)
b)

c)
d)

the tub has the electronic control panel between headrests that
regulates water temperature, the underwater LED lights, and
water jets.
the control panel has up and down temperature control buttons
and hence the tub is able to maintain the chosen level of
temperature without a need of adding hot water beyond the stated
in the advertisement 98 gallons capacity of the tub;
the tub has water heater that maintains temperature to allow for
“ultimate relaxation” as described in the verbatim description of
the product attached herein as Exhibit B;
the tub is unable to heat up fast the cold water;

Item No. 62.) By Memorandum Opinion and Order, entered on February 15, 2024, the district
court adopted the Report and Recommendation in its entirety. (Docket Item Nos. 63, 64.)
Kruglyak filed timely objections to the Report and Recommendation, on which the district court
has not yet ruled. (Docket Item No. 66.) Kruglyak has, however, filed an interlocutory appeal to
the Fourth Circuit. (Docket Item No. 69.)
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f)[sic] the tub has a power cord to plug-in into a standard 110V wall
outlet.
(Complaint at 3) (emphasis in original).
Kruglyak stated that, from June 3 to June 21, 2021, he made multiple phone
calls to “the defendants,” asking questions about the functions of the tub.
(Complaint at 3.) Kruglyak’s Complaint does not specify to whom he spoke during
these phone calls or the person’s location. Kruglyak stated that the defendants
provided no information as to the images or verbatim description or of the tub’s web
advertisement being inaccurate in any way. (Complaint at 3.) He stated that the
defendants also confirmed the absence of a showroom with an actual tub in the
nearest Home Depot store. (Complaint at 3.) According to Kruglyak, he purchased
the tub “by making on-line payment using Bristol, Virginia Home Depot store” as
indicated in the purchase receipt he attached to the Complaint as Exhibit C.
(Complaint at 3, 23-24.) Kruglyak stated the tub, contained in a wooden crate, was
delivered by a Home Depot vehicle on or about July 7-9, 2021, and was left outside
the residence on a terrace until he reached a point in his renovation project that it
was ready to be unpacked and brought inside the bathroom. (Complaint at 4.) Upon
unpacking the tub, on or about August 22, 2021, Kruglyak stated, the tub was
missing “the depicted and verbatim described parts such as control panel, LED
lights, and a water heater.” (Complaint at 4.) Kruglyak attached images of the tub
actually received as Exhibit E to the Complaint. (Complaint at 27-28.)
Kruglyak stated that, since August 22, 2021, he has contacted Phoebus, the
Bristol, Virginia, Home Depot store manager, by phone and email numerous times,
demanding that the missing parts be installed on the tub or that the tub be exchanged
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for the tub matching the advertised images and verbatim descriptions at no additional
cost. (Complaint at 4.) He attached logs of phone calls he claims were to Phoebus
and copies of emails to her as Exhibit F to the Complaint. (Complaint at 29-35.)
Upon requesting a refund through the method of payment, PayPal, Kruglyak stated,
the defendants offered to allow him to return the purchased tub for a store credit, but
at a shipping and handling expense to Kruglyak of $1,802. (Complaint at 5.)
Kruglyak stated that, without the correct tub, he has been unable to complete the
renovations to the residence, causing him a loss of rental income at a rate of at least
$250 per day for more than six months. (Complaint at 5.)
Contained in Kruglyak’s response in opposition to Home Depot’s motion for
summary judgment, is a three-page declaration made under penalty of perjury,
(Docket Item No. 35, (“Declaration”), at 4-6). In this Declaration, Kruglyak stated
that he is “a private homeowner and consumer and not a commercial entity …. I file
my taxes annually on 1099 basis using my name and a disregarded entity name that
is different from any names used by Defendant[]. If the website of Defendant[] has
the business name Fruklyak Inc. or Fruklyak, LLC, this is a non-existing and not
registered anywhere fictitious business name created by Defendant[] for the purpose
of initiating for me the volume based loyalty and rebate account known as Pro Xtra.
I included this name in the case caption in error . …” (Declaration at 4.) Kruglyak
also stated:
I have purchased the tub from Defendant[] for my own use to
treat with hot water therapy the long-term health issue of mine known
as hemorrhoids. … As a result of Defendant[] not delivering the tub I
paid for, my health has deteriorated. My bathroom became unfit for
regular use due to Defendant[] trespassing my property and
encumbering it with bulky product I did not order. The presence of the
wrong tub at the property causes unfinished tile floor and wall tile and
no functional toilet. The funds requested as compensation of damages
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of $250 per day can be used for labor cost to finish the tile and toilet
installation and for paying my medical bills for doctor’s visits,
treatment, and health diagnostics resulted from inaction of Defendant[].
I have also hosted travelers in my home, before the purchase and
delivery of the heavy and dysfunctional tub, for the short, one or two
nights stays as an individual owner only.
I did not see the tub in the showroom before purchase and relied
on the images at the website showing temperature control panel and
installation instructions showing the same. If I had known that those
images were inaccurate as to the temperature control panel, I would not
have purchased the tub from Defendant[].
The delivered tub was in the heavy wooden cage and did not
contain any image or label suggesting the absence of the temperature
control panel on the covered tub. Since delivery of July 6, 2021, I did
not have labor help until September to dismantle the cage, carry tub
inside, and see the wrong tub delivered.
(Declaration at 4-5.)
In his Complaint, Kruglyak seeks actual, treble and punitive damages totaling
$313,176 plus costs and attorney’s fees.
II.

Analysis

In his Motion For Declaratory Relief, (Docket Item No. 39), Kruglyak seeks
a “declaration of his real estate property and consumer rights[,]” pursuant to Federal
Rules of Civil Procedure Rule 57, as well as 28 U.S.C. §§ 2201, 2202. (Docket Item
No. 39 at 1.) Specifically, he seeks a declaration of his rights to have his real
property unencumbered by the “bulky nuisance object” he did not order from Home
Depot; that his rights to “possess, control, enjoy, and exclude [from his real
property]” be fully restored; and that his “consumer rights to reject the [bathtub
delivered] be restored.” (Docket Item No. 39 at 4.) The Declaratory Judgment Act,
(“Act”), provides that “[i]n a case of actual controversy within its jurisdiction, …
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any court of the United States, upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a).
The United States Court of Appeals for the Fourth Circuit has set forth three essential
elements that must be met before a federal court may properly exercise jurisdiction
over a declaratory judgment action:
(1) the complaint [must] allege[] an “actual controversy” between the
parties “of sufficient immediacy and reality to warrant issuance of a
declaratory judgment;” (2) the court [must] possess[] an independent
basis for jurisdiction over the parties (e.g., federal question or diversity
jurisdiction); and (3) the court [must] not abuse its discretion in its
exercise of jurisdiction.
Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 592 (4th
Cir. 2004) (citations omitted). As Home Depot states in its opposition brief, the
Supreme Court has held that an “actual controversy” under the Act “must be definite
and concrete, touching the legal relations of parties having adverse legal interests …
as distinguished from an opinion advising what the law would be upon a hypothetical
state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)
(citations omitted). The Fourth Circuit Court of Appeals has held that “an actual
controversy exists under the … Act when a plaintiff seeks declaratory relief in order
to avoid the accrual of potential damages for past actions.” Volvo Constr. Equip. N.
Am., Inc., 386 F.3d at 593 (citation omitted).
Nonetheless, it is clear that the Act provides the district courts discretion, as
it states that a court “may declare” the rights of parties seeking declaratory relief. 28
U.S.C. § 2201(a); see United Capitol Ins. Co. v. Kapiloff, 155 F.3d 488, 493 (4th
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Cir. 1998) (“[t]his permissive language has long been interpreted to provide
discretionary authority to district courts to hear declaratory judgment cases.”)
(citation omitted). A declaratory judgment “is appropriate ‘when the judgment will
serve a useful purpose in clarifying and settling the legal relations in issue, and …
when it will terminate and afford relief from the uncertainty, insecurity, and
controversy giving rise to the proceeding.” Centennial Life Ins. Co. v. Poston, 88
F.3d 255, 256 (4th Cir. 1996) (quoting Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d
321, 325 (4th Cir. 1937)). The Fourth Circuit has stated that the purpose of
declaratory relief is to “allow[] the uncertain party to gain relief from the insecurity
caused by a potential suit waiting in the wings.” Kapiloff, 155 F.3d at 494. With
regard to a moving party’s uncertainty, the United States District Court for the
Eastern District of Virginia has stated that there are two key principles of the Act:
(1) “if a suit for actual relief has already been filed, then the insecurity of looming
litigation does not exist … [thus] the courts disfavor a subsequent action for
declaratory judgment that would interfere with an action which has already been
instituted[]”; and (2) “declaratory judgments are designed to declare rights so that
parties can conform their conduct to avoid future litigation.” Hipage Co., Inc. v.
Access2Go, Inc., 589 F. Supp. 2d 602, 615 (E.D. Va. 2008) (internal quotations and
citations omitted).

This being the case, the court will not issue declaratory

judgments “if the questionable conduct has already occurred or damages have
already accrued.” Tapia v. U.S. Bank, N.A., 718 F. Supp. 2d 689, 695 (E.D. Va.
2010).
In this case, I find that granting declaratory relief at this point in the litigation
would not be appropriate, as it would be inconsistent with the Act. Specifically, the
wrong Kruglyak allegedly suffered as a result of Home Depot’s conduct already has
occurred, and he alleges that damages already have accrued. Because Kruglyak
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already has filed a suit for relief, the insecurity of looming litigation the Act seeks
to prevent simply does not exist. Thus, I find that granting declaratory relief in this
case would interfere with the action Kruglyak already has initiated against Home
Depot. For these reasons, I will deny Kruglyak’s Motion For Declaratory Relief.
In the Motion to Amend, (Docket Item No. 36), Kruglyak seeks to add two
new defendants, Alain Mendoza, (“Mendoza”), and Cindie Tipton, (“Tipton”), and
to reinstate Phoebus, who, as stated above, this court previously dismissed as a
defendant. He also seeks to add 12 new causes of action in addition to the 11 causes
of action contained in the initial Complaint. These additional causes of action are:
(1) negligent hiring; (2) gross negligence; (3) breach of fiduciary duty; (4) vicarious
liability; (5) fraud in the inducement; (6) conspiracy; (7) breach of warranty; (8)
breach of good faith and fair dealing; (9) trespass; (10) dissemination of false
advertisement; (11) violation of federally protected consumer rights; and (12)
damages to health. Lastly, Kruglyak seeks to remove the fictitious business name,
“Fruklyak, Inc.,” as a plaintiff in this action.
According to Federal Rules of Civil Procedure Rule 15, a party may amend
its pleading with the “court’s leave. … [and] [t]he court should freely give leave
when justice so requires.” FED. R. CIV. P. 15(a)(2). The Fourth Circuit has
emphasized that this directive is “not simply a suggestion, but rather a ‘mandate to
be heeded,’” Devil’s Advoc., LLC v. Zurich Am. Ins. Co., 666 F. App’x 256, 267 (4th
Cir. 2016) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)) and that “[m]otions
for leave to amend should generally be granted in light of ‘[t]his Circuit’s policy to
liberally allow amendment,’” Abdul-Mumit v. Alexandria Hyundai, LLC, 896 F.3d
278, 293 (4th Cir. 2018) (quoting Galustian v. Peter, 591 F.3d 724, 729 (4th Cir.
2010)). Nonetheless, a district court may deny leave to amend under certain
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circumstances, including undue delay, bad faith, repeated failure to cure
deficiencies, undue prejudice to the opposing party and futility. See Doe v. SuttonWallace, 2019 WL 5088769, at *3 (W.D. Va. Oct. 10, 2019) (citing Foman, 371
U.S. at 182); see also Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.
1986). “A proposed amendment is futile when it is clearly insufficient or frivolous
on its face … [or] if the claim it presents would not survive a motion to dismiss.”
Ball v. Streeval, 655 F. Supp. 3d 436, 440 (W.D. Va. 2023) (quoting Save Our Sound
OBX, Inc. v. N.C. DOT, 914 F.3d 213, 228 (4th Cir. 2019)).
With regard to adding Mendoza and Tipton and reinstating Phoebus as
defendants in this case, I find that allowing such an amendment would be futile. This
court previously granted Phoebus’s motion to dismiss, dismissing all claim against
her. The motion to dismiss was granted because the court found that Phoebus was
not personally liable for any of Kruglyak’s claims against her because she was acting
within her agency relationship with her employer, Home Depot. (Docket Item No.
19 at 3.) Kruglyak, likewise, admits in the Motion to Amend that Mendoza and
Tipton are agents of Home Depot. As the court stated in dismissing Phoebus, there
is a presumption that an agent intends to bind only his principal, and the individual
seeking to establish an agent’s personal liability bears the burden of proof. See
Richmond Union Pass Ry. Co. v. N.Y. Seabeach Ry. Co., 28 S.E. 573, 576 (Va.
1897). As Home Depot correctly states in its opposition brief, the Virginia Supreme
Court has held that a court has discretion “to dismiss [a] claim with prejudice when
amendment or reconsideration ‘would accomplish nothing more than provide an
opportunity for reargument of the question already decided.’” Primov v. Serco, Inc.,
817 S.E.2d 811, 816 (Va. 2018) (quoting Hechler Chevrolet, Inc. v. Gen. Motors
Corp., 337 S.E.2d 744, 749 (Va. 1985)). I find that is the case here. Specifically, in
his proposed Amended Complaint, Kruglyak alleges Mendoza is the “agent of Home
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Depot” and is in charge of issuing refunds, returns and exchanges for products
advertised at Home Depot’s website.

(Docket Item No. 36-1, (“Amended

Complaint”), at 2.) In another section of the Amended Complaint, Kruglyak refers
to Mendoza as a Customer Service Representative. (Amended Complaint at 6.) He
alleges Phoebus is the “Assistant Store Manager who is responsible for dispatching
purchased and returned products to and from the store in Bristol, Virginia.”
(Amended Complaint at 2.) Kruglyak alleges that Tipton is the “Store Manager who
controls the actions or lack thereof of … Phoebus and manages the entire Home
Depot store in Bristol, Virginia.” (Amended Complaint at 2.) In other sections of
the Amended Complaint, Kruglyak specifically refers to Home Depot as the
“principal” and “disclosed principal” and to Phoebus, Mendoza and Tipton as the
“agents” of Home Depot. (Amended Complaint at 1, 2, 6, 25, 30.)
As stated above, Kruglyak bears the burden of pleading facts establishing the
personal liability of Phoebus, Mendoza and Tipton. This he has not done. Mendoza
and Tipton acted as agents of Home Depot, just as Phoebus did, and this court
already has determined that Phoebus cannot be held personally liable for that reason.
That being the case, I find that allowing Kruglyak to amend his Complaint to add
Mendoza and Tipton as defendants and to reinstate Phoebus as a defendant would
be nothing more than an exercise in futility. Therefore, I will deny his Motion to
Amend in this regard.
Next, with regard to Kruglyak’s request to add 12 new causes of action, the
court, likewise, will deny the Motion to Amend. First, because Kruglyak seeks to
add the cause of action for vicarious liability, Count IV in the proposed Amended
Complaint, and the cause of action for fraud, fraudulent misrepresentation and fraud
in the inducement, Count VI, against only Tipton, I find that these would be futile,
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as the court already has denied Kruglyak’s Motion to Amend with regard to adding
Tipton as a defendant. Thus, the Motion to Amend to add these two causes of action
is denied on this ground.
In the Motion to Amend, Kruglyak states he is asserting the new causes of
action “due to additional information found upon discovery,” and there was “no
undue delay, bad faith, or dilatory ulterior motive” by him. (Docket Item No. 36 at
2, 5.) He alleges that allowing him to file the Amended Complaint would “serve
justice and promote judicial efficiency,” and there would be no “substantial or undue
prejudice to the original Defendants.” (Docket Item No. 36 at 4-5.) Conversely,
Home Depot argues that allowing such an amendment is prejudicial to it, is untimely
and lacks good cause7 and would be futile. As stated above, a court may deny leave
to amend for undue delay, bad faith, repeated failure to cure deficiencies, undue
prejudice to the opposing party and futility. See Foman, 371 U.S. at 182; Johnson,
785 F.2d at 509-10; Doe, 2019 WL 5088769, at *3. Courts have held that a
defendant is more likely to be prejudiced the further a case has progressed. See
Moore v. Va. Cmty. Bankshares, Inc., 2022 WL 969767, at *11 (W.D. Va. Mar. 30,
2022). Prejudice “will often be determined by the nature of the amendment and its
timing.” Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006). For example, an
amendment is prejudicial where it “raises a new legal theory that would require the
7

Although Home Depot argues that Kruglyak must show good cause under Federal Rules
of Civil Procedure Rule 16, because a scheduling order already has been entered in this case,
thereby making Kruglyak’s motion to amend untimely, I find that this argument is in error.
Specifically, no scheduling order has been entered in this case setting forth a deadline for amending
pleadings. While the parties filed a Joint Rule 26(f) Report, (Docket Item No. 24), on May 1,
2023, it did not include a deadline for amending pleadings. Instead, in that Report, with regard to
amending the pleadings, Kruglyak requested to reserve amendment to causes of action, to add
names of individual defendants and to amend the case caption until discovery was completed.
Home Depot did not agree to amendment of the pleadings after discovery, but, instead, stated that
such amendment should be sought in accordance with the Federal Rules of Civil Procedure.
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gathering and analysis of facts not already considered by the [defendant, and] is
offered shortly before or during trial.” Laber, 438 F.3d at 427 (quoting Johnson,
785 F.2d at 510). By contrast, an amendment is not prejudicial if it simply “adds an
additional theory or recovery to the facts already pled and is offered before any
discovery has occurred.” Laber, 438 F.3d at 427 (citing Davis v. Piper Aircraft
Corp., 615 F.2d 606, 613 (4th Cir. 1980)) (“Because defendant was from the outset
made fully aware of the events giving rise to the action, an allowance of the
amendment could not in any way prejudice the preparation of the defendant’s
case.”). However, delay, in and of itself, is not an adequate reason to deny a motion
to amend. See Davis, 615 F.2d at 613. A district court may not deny such a motion
merely because it has entered judgment, whether it be judgment of dismissal,
summary judgment or a judgment after a trial on the merits, against the plaintiff. See
Laber, 438 F.3d at 427 (citations omitted). In evaluating such a post-judgment
motion to amend, the court uses the same legal standard as a motion filed before
judgment was entered – for prejudice, bad faith or futility. See Laber, 438 F.3d at
427 (citations omitted). Nonetheless, the further a case has progressed before
judgment was entered, the more likely the amendment will be deemed prejudicial to
the defendant or the court will find bad faith by the plaintiff. See Laber, 438 F.3d at
427 (citing Adams v. Gould, 739 F.2d 858, 864 (3d Cir. 1984)) (“[T]he factors that
must guide our review may be affected by the fact that a summary judgment was
granted before plaintiffs sought leave to amend their complaint.”).
Here, I find that Kruglyak’s failure to include in his original Complaint the
legal theories he now seeks to add in his proposed Amended Complaint could
reasonably be interpreted as bad faith on his part. A bad faith inquiry requires an
analysis related to the plaintiff’s motive for not amending his complaint earlier. See
Pine Mountain Oil & Gas, Inc. v. Equitable Prod. Co., 446 F. Supp. 2d 643, 649
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(W.D. Va. 2006) (citing Adams, 739 F.2d at 868). Kruglyak states in his Motion to
Amend that the “new Complaint is supported by facts and information uncovered by
Plaintiff and provided by Defendants.” (Docket Item No. 36 at 5.) He also states
that the proposed Amended Complaint seeks to add new counts based on conduct
and practices that Phoebus, Tipton and Mendoza have admitted in court filings and
discovery responses. (Docket Item No. 36 at 5.) However, he does not specify this
conduct or these practices, nor does he state when he learned of them. Although
leave to amend “ordinarily is to be liberally granted, amendments of pleadings are
particularly inappropriate, absent exceptional circumstances, once discovery has
closed.” Smithfield Foods Inc. v. United Food & Com. Workers Int’l Union, 254
F.R.D. 274, 277 (E.D. Va. 2008) (quoting Remington Arms Co. v. Mod.
Muzzleloading, Inc., 1998 WL 1040949, at *2 (M.D. N.C. Dec. 17, 1998)); see also
Toth v. Glazer, 163 F.R.D. 549, 549-50 (E.D. Wis. 1995) (denying defendant’s
motion to amend where discovery had closed since “an amendment here would
prejudice the plaintiff either by denying them [sic] discovery or by adjourning the
case.”); Elf Atochem, N. Am., Inc. v. United States, 161 F.R.D. 300, 301-02 (E.D.
Pa. 1995) (“Motion [to amend] is untimely based on the fact that discovery is
virtually complete, and trial is looming close.”).
Here, as stated above, no scheduling order has been entered in this case.
However, the parties did enter a Rule 26(f) Report in May 2023, in which they agreed
that discovery would close September 1, 2023. The court has been supplied no
information to the contrary. Therefore, I will assume that discovery in this case has
been closed. The court also is unaware of any exceptional circumstances presented
by this case. Moreover, in the Motion to Amend, Kruglyak states that he “seeks to
litigate further the case using new material facts rather than rehashing old issues.”
(Docket Item No. 36 at 5.) He further states that the new causes of action and new
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defendants “add allegations in furtherance of justice and not regurgitate previous
pleadings for other reasons.” (Docket Item No. 36 at 5.) However, as the Fourth
Circuit stated in Omni Outdoor Advert., Inc. v. Columbia Outdoor Advert., Inc., 974
F.2d 502, 506 (4th Cir. 1992), while Rule 15 promotes liberal amendment of
pleadings, it “does not afford plaintiffs a tool to engage in the litigation of cases one
theory at a time.” It appears this is what Kruglyak is attempting to do here. Kruglyak
did not file the Motion to Amend until nine days after Home Depot filed its Motion
for Summary Judgment. At that time, as far as the court can tell, discovery had been
closed since September 1, 2023, more than six weeks. Thus, I find that Kruglyak
could have asserted the proposed amendment earlier in the case, rendering a more
efficient expenditure of judicial resources. See Pine Mountain, 446 F. Supp. 2d at
650.
Moreover, while delay alone is insufficient to deny leave to amend, that is not
to say it is irrelevant, particularly when a party’s motion to amend is predicated on
information which has long been known to it. See Smithfield Foods Inc., 254 F.R.D.
at 279. The Fourth Circuit has held it is within the district court’s sound discretion
to deny leave to amend when a motion is made after the close of discovery and is
based on information known to the moving party during the discovery phase of the
case. See Smithfield Foods Inc., 254 F.R.D. at 279 (citing First Nat’l Bank v. Master
Auto Serv. Corp., 693 F.2d 308, 314 (4th Cir. 1982) (denying leave to amend 19
days before trial).
Here, I find that all of the claims Kruglyak now seeks to add were available
to him previously based on the facts he knew at the time he filed the original
Complaint. For instance, he would have known all the facts asserted in his proposed
Amended Complaint with regard to the negligent hiring and supervision claim, as it
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focuses on Home Depot’s alleged negligence in selecting, supervising and training
its Management and Customer Service Agents with regard to their failure to “rectify
the wrong delivery without expense to [him] and demanded to ship the wrong tub to
Atlanta at [his] expense.” (Amended Complaint at 7.) Kruglyak has alleged these
basic facts all along. Likewise, with regard to his new claim for a violation of
federally protected consumer rights, it is based on facts known at the time of the
original Complaint.

Specifically, Kruglyak alleges in the proposed Amended

Complaint that he had a right to product warranties and disclosures at the Home
Depot webpage and on the packaging of the delivered product.

(Amended

Complaint at 8.) He further alleges Tipton, Mendoza and Phoebus willfully violated
these warranties and product disclosures by sending an unlabeled container to him,
which he discovered was the wrong tub only upon opening, and which these
proposed defendants declined to return and/or exchange at no expense to him.
(Amended Complaint at 8.) Again, it is clear that Kruglyak was aware of all these
facts upon which this new cause of action is based at the time he filed the original
Complaint. The undersigned also would like to point out that, with regard to
Kruglyak’s new claim for damages to health, he alleges, for the first time, a health
condition requiring regular therapy with hot water and bath salts, which a sitz bath
would not have been adequate. (Amended Complaint at 27.) Kruglyak alleges that,
after more than two years without such regular therapy, he has developed intestinal
cysts and masses that now require surgical attention. (Amended Complaint at 27.)
Kruglyak did not allege such a health condition in his original Complaint. In fact,
the first time he made mention of a health condition was in a sworn Declaration
submitted with his opposition to the defendant’s Motion for Summary Judgment. In
that Declaration, Kruglyak states he has had hemorrhoids and rectal bleeding on a
long-term basis, which require daily hot water therapy, preferably with bath salts,
for at least an hour to achieve results. (Docket Item No. 35 at 4.) He also stated he
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had been trying to treat these conditions with a sitz bath device, but this had been
ineffective because it does not heat water. (Docket Item No. 35 at 4.) Kruglyak
stated that, as a result of the defendant’s failure to deliver the tub he thought he was
purchasing and paid for, his health has deteriorated. (Docket Item No. 35 at 4.)
According to Kruglyak, he has medical records from Boston Medical Center and
Cigna showing he suffers from these conditions. (Docket Item No. 35 at 4.) As this
cause of action centers around Kruglyak’s own health condition, he undoubtedly had
access to this information at the time he filed the original Complaint. Nonetheless,
he inexplicably failed to bring this claim at that time. The same can be said for the
remainder of the new claims Kruglyak seeks to add in his proposed Amended
Complaint, and the court will not discuss each one separately. Suffice it to say, the
facts upon which each claim is based were available to him at the time he filed his
original Complaint, yet he did not attempt to bring these claims until now.
For all the above-stated reasons, I find that it is reasonable to conclude that
Kruglyak acted in bad faith in not bringing these new causes of action until now, and
Home Depot would be unduly prejudiced by allowing him to amend his Complaint
at this juncture. That being the case, I will deny his Motion to Amend as it relates
to the new claims not already addressed herein.
With regard to the 11 claims contained in the original Complaint, the facts
now advanced in the proposed Amended Complaint are the same, with the exception
of those alleged with respect to Kruglyak’s Virginia Consumer Protection Act claim.
In particular, at the November 27, 2023, hearing, Kruglyak argued he would be using
the tub for personal use to treat a medical condition, as explained above. Likewise,
in his Declaration, he stated he was a private homeowner and consumer, not a
commercial entity within the meaning of the VCPA. Thus, the court will discuss
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whether Kruglyak now has sufficiently alleged facts to support a claim under the
VCPA. For the reasons that follow, I find he has not. As stated in the February 6,
2024, Report and Recommendation, the VCPA applies to “consumer transaction[s,]”
which is defined as “[t]he advertisement, sale, … or offering for sale … of goods or
services to be used primarily for personal, family or household purposes.” V A. CODE
ANN. § 59.1-198 (2019). Even though Kruglyak now alleges he is not a commercial
entity, and he required the tub to treat his hemorrhoids on a daily basis, the proposed
Amended Complaint continues to make clear that he intended to use the tub for the
renovation of an income-producing rental property. He seeks damages of at least
$250 per day as a result of not being able to advertise the rental property on a
traveler’s website due to being delivered the wrong tub. Thus, even if the court
assumes Kruglyak would use the tub, personally, on a daily basis, it still cannot find
it is to be used “primarily for personal, family or household purposes,” as required
by the VCPA.
Lastly, in the Motion to Amend, Kruglyak seeks to remove the fictitious
business name of “Fruklyak, Inc.” as a plaintiff in this action, as it was created by
Phoebus and/or her agents in order to open his Home Depot Pro Xtra loyalty and
rebate account. (Motion to Amend at 2.) Kruglyak states he pays local taxes and
files federal taxes in his own name and as a “disregarded entity,” not the one named
by the defendant, for all entrepreneurial activities. (Motion to Amend at 2.) In its
response in opposition, Home Depot states it does not believe Fruklyak, Inc. is a
party to this case, stating that its understanding is that Kruglyak “was always a party
in his personal capacity.” (Docket Item No. 40 at 1.) Thus, Home Depot does not
object to “whatever extent Plaintiff seeks to amend the Complaint in this regard.”
(Docket Item No. 40 at 1.) That being the case, the court will grant the Motion to

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Amend, insofar as “d/b/a Fruklyak, Inc.” will be removed from the caption of the
Complaint.
Finally, the court will grant Kruglyak’s Second Motion to Remand for the
reasons that follow.8 Federal law allows removal to federal court of any state civil
action which may have been brought in federal court. See 28 U.S.C. § 1441. The
federal district courts have subject matter jurisdiction over civil actions based either
on a federal question or diversity of citizenship. See 28 U.S.C. §§ 1331, 1332.
Furthermore, in a civil action in which a federal court’s subject matter jurisdiction
is based on a federal question, the federal court also has supplemental jurisdiction
over any state law claims that are so related to the federal claim that they “form part
of the same case or controversy.” 28 U.S.C. § 1367(a). The burden of establishing
whether the statutory and jurisdictional requirements for removal are met is on the
8

There is a split in the case law as to whether a magistrate judge has the authority to enter
a final order on a motion to remand, and the decisions have turned on whether it is a “dispositive
motion within the meaning of 28 U.S.C. § 636(b)(1) of the Federal Magistrates Act and Rule 72
of the Federal Rules of Civil Procedure.” Young v. James, 168 F.R.D. 24, 25 (E.D. Va. 1996). A
magistrate judge may only enter an order, as opposed to a report and recommendation, in a matter
“not dispositive of a claim or defense of a party.” FED. R. CIV. P. 72(a)-(b). The District Court for
the Eastern District of Virginia has held that motions to remand should be considered
nondispositive for two reasons. First, they are not listed in 28 U.S.C. § 636(b)(1)(A), which
specifically lists eight types of motions on which magistrate judges may only submit a report and
recommendation. See 28 U.S.C. § 636(b)(1)(A); see also Young, 168 F.R.D. at 26. Second, while
neither Rule 72(a) nor 72(b) defines the term “dispositive,” both indicate that a magistrate judge
may only enter an order, as opposed to a report and recommendation, in a matter “not dispositive
of a claim or defense of a party.” FED. R. CIV. P. 72(a)-(b). Because a motion to remand affects
only the appropriate forum a party may use to present its claims and does not affect the actual
claims or defense of the party, the motion is nondispositive. See Young, 168 F.R.D. at 27 (citing
Campbell v. Int’l Bus. Mach., 912 F. Supp. 116, 119 (D. N.J. 1996)). While the Fourth Circuit has
not addressed this issue, it stated as follows: “The Supreme Court specifically stated that § 1447(d)
‘prohibits review of all remand orders issued pursuant to § 1447(c) whether erroneous or not.’”
Jonas v. Unisun Ins. Co., 2000 WL 1350648, at *1 (4th Cir. 2000) (quoting Thermtron Prods.,
Inc. v. Hermansdorfer, 423 U.S. 336, 342 (1972)); see also In re Love, 102 F.3d 731, 734 (4th Cir.
1996) (holding that once an order of remand is entered, the federal courts no longer have
jurisdiction over the case). Based on this reasoning, I find that I have the authority to enter a final
order on the Second Motion To Remand.
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removing defendants. See CPFilms, Inc., v. Best Window Tinting, Inc., 466 F. Supp.
2d 711, 712 (W.D. Va. 2006) (citing Mulcahey v. Columbia Organic Chems. Co.,
Inc., 29 F.3d 148 (4th Cir. 1994)). Because removal jurisdiction raises significant
federalism concerns, the courts must strictly construe removal jurisdiction. See
Mulcahey, 29 F.3d at 151. If federal jurisdiction is doubtful, a remand is necessary.
See Mulcahey, 29 F.3d at 151; see also CPFilms, Inc., 466 F. Supp. 2d at 712.
Previously, the court determined it had subject matter jurisdiction based on a
federal question since Kruglyak’s Complaint contained a cause of action under the
Magnuson-Moss Warranty Act, and he adequately pleaded the minimum amount of
damages necessary for the court to exercise such jurisdiction. See 15 U.S.C. §§
2310(d)(3), 1367(a). That being the case, the court declined to address the issue of
whether it may exercise diversity jurisdiction. However, since the court entered that
decision on November 2, 2022, the undersigned recommended granting summary
judgment in Home Depot’s favor and dismissing Kruglyak’s Magnuson-Moss
Warranty Act claim. In fact, the undersigned recommended dismissing all of
Kruglyak’s claims except his state law breach of contract claim, thereby leaving
diversity jurisdiction as the only means for this court to retain jurisdiction over this
action. For the following reasons, I find that the court does not have diversity
jurisdiction over Kruglyak’s claim, and I will grant his Second Motion To Remand.
Pursuant to 28 U.S.C. § 1332(a)(1), district courts shall have original
jurisdiction in all civil actions where the amount in controversy exceeds $75,000,
exclusive of interest and costs, and is between citizens of different states. A
corporation is deemed to be a citizen of every state where it has been incorporated
and of the state where it has its principal place of business. See 28 U.S.C. §
1332(c)(1). Here, Kruglyak states in his Complaint that he is a citizen of Tennessee,
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and Home Depot it a nationwide retail corporation with its principal place of
business in Georgia.

Thus, the action is between citizens of different states.

However, in his Complaint, Kruglyak seeks damages totaling $52,196.35 for his
breach of contract claim, far below the required amount in controversy for diversity
of citizenship jurisdiction. Additionally, although he seeks $104,392 in punitive
damages in his Complaint, such damages are not allowed under Virginia law for
breach of contract claims unless the breach amounts to an independent, willful tort,
which is not the case here. See Goodstein v. Weinberg, 245 S.E.2d 140, 143 (Va.
1978); see also Kamlar Corp. v. Haley, 299 S.E.2d 514, 517 (Va. 1983).
III.
Based on the above-stated reasons, the Motion For Declaratory Relief,
(Docket Item No. 39), is DENIED, the Motion to Amend, (Docket Item No. 36), is
GRANTED only insofar as “d/b/a Fruklyak, Inc.” is removed from the caption of
the Complaint, otherwise, the Motion to Amend is DENIED, and the Plaintiff’s
Second Motion To Remand, (Docket Item No. 55), is GRANTED.
Notice to Parties
Notice is hereby given to the parties of the provisions of Federal Rules of
Civil Procedure 72(a):
A party may serve and file objections to the order within 14 days after
being served with a copy. A party may not assign as error a defect in
the order not timely objected to. The district judge in the case must
consider timely objections and modify or set aside any part of the order
that is clearly erroneous or is contrary to law.
Failure to file written objections to the Order within 14 days could waive
appellate review. At the conclusion of the 14-day period, the Clerk is directed to
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transmit the record in this matter to the Honorable Michael F. Urbanski, Chief
United States District Judge.
The Clerk is directed to send copies of this Memorandum Order to all counsel
of record and unrepresented parties.
ENTERED: March 27, 2024.
/s/
UNITED STATES MAGISTRATE JUDGE

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