Small v. Ramsey et al
Filing
366
MEMORANDUM OPINION and ORDER denying 326 Motion for Leave to Amend Answer to Assert Counterclaim. Signed by District Judge Irene M. Keeley on 2/8/12. (jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TOBBY LYNN SMALL,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:10CV121
(Judge Keeley)
JAMES R. RAMSEY, JACK B. KELLEY,
INC., AMERIGAS PROPANE LP, WILLIE
MCNEAL, TRINITY HIGHWAY PRODUCTS, LLC,
STATE FARM MUTUAL AUTO. INS. CO.,
LARRY SLAVENS, and PATRICIA N. PAUL,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO AMEND ANSWER TO ASSERT COUNTERCLAIM [DKT. NO. 326]
Pending before the Court is the defendant James R. Ramsey’s
Motion for Leave to Amend Answer to Assert Counterclaim (dkt. no.
326). For the reasons stated at the hearing held on January 31,
2012, and discussed below, the Court DENIES the motion.
I.
On
February
20,
2009,
the
plaintiff,
Tobby
Lynn
Small
(“Small”) and the defendant, James R. Ramsey (“Ramsey”), were
involved in a multi-vehicle accident on Interstate 79. Small
initiated this civil action on June 11, 2010, by filing a complaint
in the Circuit Court of Harrison County, West Virginia, against
Ramsey and eight other defendants. The defendants removed the case
to this Court on August 5, 2010, pursuant to 28 U.S.C. § 1441(a).
SMALL V. RAMSEY, ET AL.
1:10CV121
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO AMEND ANSWER TO ASSERT COUNTERCLAIM [DKT. NO. 326]
Subsequent to a scheduling conference held on January 6, 2011,
attended by counsel for all parties, the Court entered a Scheduling
Order containing the following:
JOINDER AND AMENDMENTS: Motions to join additional
parties, motions to amend pleadings, as well as any
similar motions, by the plaintiff shall be filed by March
18, 2011. Motions to join additional parties, motions to
amend pleadings, as well as any similar motions, by the
defendant shall be filed by March 18, 2011.
(Dkt. No. 85 at 3-4). On January 7, 2011, with the Court’s leave,
Small filed his First Amended Complaint. Ramsey then filed an
Answer on January 25, 2011.
More than six months after the deadline for amendments had
passed, on October 3, 2011, Ramsey filed a motion seeking the
Court’s leave to amend his answer to assert a counterclaim against
Small. It is apparent from the motion that, for some time, Ramsey
has been pursuing separate litigation in order to recover for the
injuries he sustained in the February 20, 2009 accident with Small.
He now seeks to abandon his separate lawsuit and proceed with his
claims in this Court.
II.
Ramsey, along with his wife, Virginia E. Ramsey, who pursues
a derivative claim for loss of consortium, first filed a complaint
against Small and three other defendants in federal court on
2
SMALL V. RAMSEY, ET AL.
1:10CV121
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO AMEND ANSWER TO ASSERT COUNTERCLAIM [DKT. NO. 326]
February 1, 2011, asserting causes of action arising from the
February 20, 2009 accident. Chief Judge Bailey of this District
dismissed that case sua sponte on June 10, 2011 for lack of subject
matter jurisdiction, i.e., the absence of complete diversity.
Eleven days later, on June 21, 2011, the Ramseys filed another
complaint in the Circuit Court of Monongalia County, West Virginia,
with the same claims. The defendants in that case moved to dismiss
the complaint on the grounds that, pursuant to Fed. R. Civ. P. 13,
the
Ramseys’
claims
should
have
been
filed
as
compulsory
counterclaims in the action pending in front of this Court. The
state
court
judge
denied
these
motions
to
dismiss
without
prejudice, stayed the state court action, and directed Ramsey to
file, in this Court, a motion to amend his answer to assert a
counterclaim and, subsequently, a motion to intervene on behalf of
Mrs. Ramsey. Ramsey’s motion to amend (dkt. no. 326) is now ripe
for the Court’s review.
III.
As Ramsey’s motion to amend came more than six months after
the March 18, 2011 deadline for amendment of pleadings set forth in
the scheduling order, (dkt. no. 85), “the good cause standard [of
Rule 16(b) of the
Federal Rules of Civil Procedure] must be
satisfied to justify leave to amend the pleadings.” Nourison Rug
3
SMALL V. RAMSEY, ET AL.
1:10CV121
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO AMEND ANSWER TO ASSERT COUNTERCLAIM [DKT. NO. 326]
Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008). Once the
moving party satisfies the good cause standard of Rule 16(b), “the
movant then must pass the tests for amendment under Rule 15(a).”
Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D. W. Va. 1995).
A.
Fed. R. Civ. P. 16(b)(4) provides that “[a] schedule may be
modified only for good cause and with the judge’s consent.” This
standard “focuses on the timeliness of the amendment and the
reasons for its tardy submission; the primary consideration is the
diligence of the moving party.” Montgomery v. Anne Arundel Cnty.,
Md., 182 F. App’x 156, 162 (4th Cir. 2006) (per curiam); see
Marcum, 163 F.R.D. at 255 (“the touchstone of ‘good cause’ under
Rule 16(b) is diligence”); see also Fed. R. Civ. P. 16 advisory
committee’s note, 1983 Amendment, Subdivision (b) (“the court may
modify the schedule on a showing of good cause if it cannot
reasonably be met despite the diligence of the party seeking the
extension”). Accordingly, “[g]ood cause is not shown when the
amendment could have been timely made.” Aventis Cropscience N.V. v.
Pioneer Hi-Bred Int'l, Inc., No. 1:00-463, 2002 WL 31833866, at *2
(M.D.N.C. Dec. 12, 2002) (citing Wildauer v. Frederick County, 993
F.2d 369, 372 (4th Cir. 1993)).
4
SMALL V. RAMSEY, ET AL.
1:10CV121
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO AMEND ANSWER TO ASSERT COUNTERCLAIM [DKT. NO. 326]
In essence, Ramsey’s argument is that he delayed amending his
answer because he believed that his counterclaim was not compulsory
pursuant to Fed. R. Civ. P. 13(a) and that, as such, the best way
for him to preserve Mrs. Ramsey’s derivative claim for loss of
consortium was to proceed with a jointly initiated separate suit.
This explanation, however, provides little by way of demonstrating
diligence
in
pursuing
his
proposed
amendment
in
this
Court.
Notwithstanding any interpretation of Fed. R. Civ. P. 13, the
strategy that Mr. and Mrs. Ramsey now seek to pursue – filing a
counterclaim and, subsequently, a motion to intervene – was, as the
parties readily acknowledge, available well before the March 18,
2011 deadline for joining parties and amending pleadings. Indeed,
the separate suit that the Ramseys filed in federal court on
February 1, 2011 amply demonstrates that they had the requisite
evidence to support this proposed counterclaim more than a month
prior to this Court’s deadline.
That Ramsey made a strategic decision to pursue other avenues
of litigation and withhold his proposed counterclaim does not
demonstrate
that
the
Court’s
scheduling
deadlines
could
not
“reasonably be met” despite his diligent efforts. Fed. R. Civ. P.
16 advisory committee’s note, 1983 Amendment, Subdivision (b).
Accordingly,
as
Ramsey’s
motion
5
does
not
explain
why
his
SMALL V. RAMSEY, ET AL.
1:10CV121
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO AMEND ANSWER TO ASSERT COUNTERCLAIM [DKT. NO. 326]
counterclaim
could
not
have
been
asserted
through
a
timely
amendment pursuant to this Court’s scheduling order, the Court
finds that he has failed to demonstrate good cause to amend his
pleading as required by Fed. R. Civ. P. 16(b) and DENIES his motion
to amend.
B.
Even assuming arguendo that Ramsey had good cause for his
lengthy delay, the proposed amendment nonetheless fails to satisfy
Fed. R. Civ. P. 15. This Rule permits amendment of a pleading “only
by leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires.” Fed. R. Civ.
P. 15(a). The decision to grant leave to amend a pleading is within
the
sound
discretion
of
the
district
court,
although
this
discretion is limited by the general policy of favoring the
resolution of cases on the merits. See Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006) (en banc). Such leave “should be denied
only when the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or the
amendment would have been futile.” Sciolino v. Newport News, Va.,
480 F.3d 642, 651 (4th Cir. 2007) (quoting Laber, 438 F.3d at 426).
The prejudice caused by a proposed amendment “will often be
6
SMALL V. RAMSEY, ET AL.
1:10CV121
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO AMEND ANSWER TO ASSERT COUNTERCLAIM [DKT. NO. 326]
determined by the nature of the amendment and its timing.” Laber,
438 F.3d at 427.
Small has not contended that the proposed amendment is futile
or in bad faith; thus, the issue before the Court is whether the
amendment “would be prejudicial to the opposing party.” Sciolino,
480 F.3d at 651 (quoting Laber, 438 F.3d at 426). Upon review, the
Court finds that the proposed amendment would indeed be prejudicial
to
the
plaintiff.
Ramsey
does
not
ask
to
merely
clarify
an
ambiguity in his pleadings; rather, he seeks to add an entirely new
counterclaim, and an entirely new intervenor, to a case set for
trial on July 9, 2012, in which many of the major deadlines have
already passed. See generally Deasy v. Hill, 833 F.2d 38, 42
(“Belated claims which change the character of litigation are not
favored.”).
Ramsey maintains that the trial will not be delayed by his
motion, as he requests only “[l]eave to bring the Ramseys up to
speed on written discovery and time to disclose its liability and
damage experts.” (Dkt. No. 326 at 6). However, discovery in this
case dates back to 2010, and the expert disclosure deadlines
expired months ago, along with the Daubert motions deadline and the
Daubert hearing date. (Dkt. No. 224). In short, the addition of
Ramsey’s
counterclaim
at
this
stage
7
of
the
litigation
would
SMALL V. RAMSEY, ET AL.
1:10CV121
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO AMEND ANSWER TO ASSERT COUNTERCLAIM [DKT. NO. 326]
essentially upend a longstanding scheduling order and jeopardize
the timely disposition this case. As such, even assuming that
Ramsey could show good cause for his dilatory conduct, the Court
finds that the proposed amendment is prejudicial to the plaintiff
and DENIES the motion to amend pursuant to Fed. R. Civ. P. 15(a).
IV.
For the reasons discussed, the Court concludes that Ramsey has
failed to demonstrate the propriety of the proposed amendment under
either Rules 16(b) or 15(a). Accordingly, the Court DENIES his
Motion for Leave to Amend Answer to Assert Counterclaim (dkt. no.
326).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: February 8, 2012
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
8
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