Logar et al v. West Virginia University Board of Governors et al

Filing 163

MEMORANDUM OPINION AND ORDER denying plaintiff's 152 Motion to Alter or Amend Judgment and for Leave to file an Amended Complaint. (copy 4CCA) Signed by Senior Judge Frederick P. Stamp, Jr. on 1/25/12. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CYRIL M. LOGAR and R. STEPHEN SEARS,
Plaintiffs,
v.

Civil Action No. 1:10CV201
(STAMP)
WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS,
including members from 2008 through the
present, a West Virginia State Board;
MARY ROBERTA BRANDT, individually and as
former Vice President for Legal Affairs and
General Counsel at West Virginia University
and adjunct professor of law;
BEVERLY D. KERR, individually and as Deputy
General Counsel for West Virginia University;
MARJORIE A. McDIARMID, individually and as the
Steptoe and Johnson Professor of Law and Technology and
Academic Integrity Officer for West Virginia University;
MICHAEL S. GARRISON, individually and as former
President of West Virginia University;
C. PETER McGRATH, individually and as former interim
President of West Virginia University;
JAMES P. CLEMENTS, individually and as current
President of West Virginia University; and
E. JANE MARTIN, individually and as former
Provost of West Virginia University,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION TO ALTER OR AMEND JUDGMENT
AND FOR LEAVE TO FILE AN AMENDED COMPLAINT
I.

Procedural History

The plaintiffs, Cyril M. Logar and R. Stephen Sears, filed a
complaint against the defendants in this Court pursuant to 42
U.S.C. § 1983.

The plaintiffs stated that the defendants deprived

them of their liberty and property rights without due process,
knowingly and intentionally sabotaged their reputations, deprived
them of certain benefits and privileges commensurate with their

positions as administrators and tenured faculty members at West
Virginia

University

established

(“WVU”),

procedures

investigations.

for

and

failed

conducting

to

adhere

academic

to

WVU’s

misconduct

Thereafter, Marjorie A. McDiarmid filed a motion

to dismiss, James P. Clements, C. Peter McGrath, and West Virginia
University Board of Governors (“WVU BOG”) filed a motion to
dismiss, Mary Roberta Brandt and Beverly D. Kerr filed a motion to
dismiss, and E. Jane Martin filed a motion to dismiss.

On July 28,

2010, this Court entered an order notifying the parties of its
intent of possible conversion of the motions to dismiss into
motions for summary judgment as to the issue of the statute of
limitations and directed the parties to submit affidavits to this
Court in which the parties should provide this Court with certain
dates relevant to the statute of limitations applicable to the
plaintiffs’ claims.

The parties complied with this request.

On September 15, 2011, this Court converted the defendants’
motions to dismiss into motions for summary judgment and granted
each of the motions on the grounds that the plaintiffs’ claims were
time-barred by the two-year statute of limitations applicable to
civil rights actions based upon the two-year statute of limitations
in tort actions in West Virginia. The same day, this Court entered
judgment in this matter, dismissing the case with prejudice.
Following dismissal, the plaintiffs filed a joint motion
separately requesting that this Court alter or amend its judgment
for the defendants pursuant to Federal Rule of

2

Civil Procedure

59(e), and that it grant leave to the plaintiffs to file an amended
complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). In
the motion, the plaintiffs argue that they should be given leave to
amend their complaint to add contract-based and 42 U.S.C. § 1982
claims

which

they

believe

do

not

implicate

the

statute

of

limitations issues addressed in this Court’s memorandum opinion and
order dismissing the case.

They further request that this Court

reconsider its prior determination regarding the application of the
statute of limitations to time-bar the claims in their original
complaint, claiming that this Court’s original opinion constituted
plain error.
The defendants filed a joint memorandum in response in which
it is argued that the plaintiffs’ motion for leave to amend should
be denied on the bases of undue delay and prejudice to the
defendants.

Additionally,

the

defendants

argue

that

the

plaintiffs’ motion to alter or amend judgment should be denied
because no new information has been introduced by the plaintiffs
which justifies a request for reconsideration of this Court’s
original opinion, and that the plaintiffs are attempting to use
this motion to raise arguments which could have been raised before
the judgment in this case, which, they argue, is inappropriate.
The plaintiffs timely replied to this response.
This motion is now fully briefed and ripe for review. For the
reasons set forth below, the plaintiffs’ motion to alter or amend
the judgment and for leave to file an amended complaint is DENIED.

3

II.

Facts1

In October 2007, a local media outlet contacted West Virginia
University (“WVU”) inquiring about whether a particular student
(“Student A”) completed and earned an “eMBA” degree at WVU.

The

plaintiffs, then Dean and Associate Dean of the College of Business
and Economics at WVU, conducted an investigation at the request of
then Provost, Gerald Lang, and concluded that Student A had not
completed the degree. On October 15, 2007, the plaintiffs attended
a meeting allegedly called by defendant and then WVU President
Michael Garrison.

Then WVU General Counsel Alex Macia, Lang, and

then director of the MBA program Paul Speaker were also allegedly
at the meeting.

The plaintiffs aver that General Counsel Macia

advised them that Student A had earned the degree. Plaintiff Sears
states that he was told to send a letter to the inquiring media
outlet, stating that Student A had earned her degree.
The media outlet then made three Freedom of Information Act
(“FOIA”) requests.

In April 2008, a special investigative panel

from the media outlet issued a report regarding their findings. On
May 30, 2008, Garrison submitted a letter to defendant McDiarmid,
Academic Integrity Officer for WVU, in which he requested an
investigation of the potential academic misconduct committed by
plaintiff Sears and/or any other person.

1

Garrison then submitted

With the exception of the date the plaintiffs received the
screening subcommittee report, the facts contained in this
memorandum opinion and order are obtained from the plaintiffs’
filings.
The date the plaintiffs received the screening
subcommittee report comes from the parties’ affidavits.
4

his resignation as president of WVU on June 6, 2008, effective
August 31, 2008.

The Office of General Counsel sent a memorandum

to the plaintiffs on June 16, 2008, informing them that the
Academic Integrity Committee had requested the cooperation of the
General Counsel’s office in the Student A investigation.

The

memorandum instructed the plaintiffs to make available any and all
documents relevant to the investigation.

The plaintiffs contend

that this constituted specific legal advice and direction to the
plaintiffs.
Defendant McDiarmid named several individuals to serve on the
screening subcommittee, including defendant Kerr, then deputy
general counsel at WVU. The screening subcommittee issued a report
on July 17, 2008.

McDiarmid mailed the plaintiffs this report via

university mail on July 21, 2008.

On August 1, 2008, counsel for

Sears sent McDiarmid a letter seeking an extension of time to
respond to the screening subcommittee report.

On August 5, 2008,

Logar

to

sent

McDiarmid

subcommittee report.

a

letter

responding

the

screening

The plaintiffs state that Macia and other

persons acting in the General Counsel’s office submitted documents
for review by the screening subcommittee, which included Kerr, who
was also employed in the General Counsel’s office at the same time.
The screening subcommittee report stated that no testimony or
documentary evidence indicated that Macia or Garrison knew of or
were involved with the generation of the records sent to admissions
and records.

The plaintiffs state that no reference was made by

5

the screening subcommittee to the alleged fact that Macia had given
legal advice and actively participated in the October 15, 2007
meeting, or that he had participated in communications regarding
the Student A matter before and after the meeting.
Defendant
hearing panel.

McDiarmid

then

named

a

discovery

subcommittee

In December 2008, defendant McDiarmid sent letters

to the plaintiffs informing them that they were being charged with
academic misconduct.

The plaintiffs allege that Kerr attended the

hearings of the discovery subcommittee and served as its legal
counsel.

The discovery subcommittee brought charges of academic

misconduct against the plaintiffs on December 3, 2008.

The

subcommittee’s report contained the affirmative statements that
records were fabricated, grades falsified, and that the plaintiffs
had failed to comply with institutional requirements related to
teaching and learning.
On

February

24,

2009,

Lang,

who

was

also

charged

with

misconduct by the screening subcommittee, filed a petition for writ
of prohibition with the Circuit Court of Monongalia County, which
sought to terminate disciplinary proceedings due to conflict of
interest.

The plaintiffs in this action moved to intervene in

these proceedings on April 20, 2009, and the petition was heard by
the Susan B. Tucker, Monongalia County Circuit Court Judge, on
April

22,

2009.

Judge

Tucker

granted

Mr.

Lang

a

writ

of

prohibition, but denied the plaintiffs’ motions to intervene,
deeming those motions untimely because they were filed two days

6

before the hearing when the original petition had been pending for
two months beforehand. However, Judge Tucker acknowledged that the
plaintiffs were subject to the same misconduct proceedings, and
that she was of the opinion that their rights were similarly
infringed by, among other things, the WVU Office of General
Counsel’s conflict of interest, which caused her to grant Mr.
Lang’s writ.

Judge Tucker terminated the academic integrity

proceedings entirely.
Following Judge Tucker’s order terminating the proceedings,
the respondents in that case2 appealed, and Judge Tucker reaffirmed
her opinion on January 24,2011.

However, on July 15, 2011, her

previous orders were vacated following a settlement agreement
between Lang and the respondents in that case.

At no time during

the pendency, appeal, or ultimate dismissal of the Lang petition,
were the either of the plaintiffs in this action made parties to
the proceedings.
On December 3, 2010, the plaintiffs filed this civil action
under 42 U.S.C. § 1983.

Count I of the complaint alleged denial of

procedural due process by the investigation and bringing of charges
of academic misconduct while a conflict of interest existed with
WVU’s Office of General Counsel.
in

conducting

the

The plaintiffs also alleged that

investigation

2

and

bringing

charges,

the

The respondents to the Lang petition were the same parties as
the defendants named in this case with the exceptions of defendant
Michael S. Garrison, James P. Clemens and E. Jane Martin, all of
whom are defendants in this case but were not named as respondents
to the Lang petition.
7

defendants violated and continue to violate their own Policy and
Procedures related to academic misconduct proceedings by failing to
ensure that the process was free of conflicts of interest and was
conducted in a fair and impartial manner.
complaint

alleged

denial

of

substantive

Count II of the

due

process

by

the

investigating and bringing charges of academic misconduct while a
conflict of interest existed with the General Counsel’s office. In
addition, the plaintiffs contended that the defendants deprived
them of their rights to fundamental fairness in the proceedings.
III.
A.

Applicable Law

Motion for Leave to Amend Complaint
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides

that, after a defendant files a responsive pleading, and either
leave of court or permission of the opposing party is necessary to
amend a complaint, requests for such leave should nonetheless be
granted “freely . . . when justice so requires.” The Supreme Court
has held that, “in the absence of any apparent or declared reason
-- such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendment,
futility of amendment, etc. -- the leave sought should, as the
rules require, be ‘freely given.’”

Foman v. Davis, 371 U.S. 178,

182 (1962).
This is true even when leave to amend is requested after the
district court has entered judgment in a case.

See Laber v.

Harvey, 438 F.3d 404 (4th Cir. 2006) (holding that the standard for

8

granting a post-judgment leave to amend is the same as it is for
granting a pre-judgment motion for the same).

This is because, in

the Fourth Circuit, “delay alone” is not sufficient reason to deny
a motion for leave to amend.

Therefore, the simple fact that

judgment has been entered is not grounds, without more, for denying
leave to amend. Id. at 427. However, the post-judgment climate is
a major factor in the consideration of the other factors relevant
to the inquiry, most especially those of bad faith and prejudice to
the opposing party.

See id. and Adams v. Gould, 739 F.2d 858, 864

(both remarking that the analysis of the factors will be influenced
by the fact that judgment has been entered before leave to amend
was sought).
The most significant difference between pre-judgment motions
to amend and post-judgment requests is that, when judgment has been
entered, it must be vacated pursuant to Federal Rule of Civil
Procedure 59(e) or 60(b) before leave to amend may be granted. See
Laber, 438 F.3d at 427.

However, the inquiry regarding whether or

not to vacate the judgment in order to allow a post-judgment motion
for leave to amend is not that of either Rule 59(e) or 60.
the standard to be employed is simply that of Rule 15.

Rather,

The Court

must simply decide whether to grant leave to amend, and if leave is
appropriate, the original judgment should be vacated.

Katyle v.

Penn National Gaming, Inc., 637 F.3d 462, 470-71 (4th Cir. 2011).

9

B.

Motion to Alter or Amend Judgment
The plaintiffs also request in this motion that this court

alter or amend its judgment in this case based upon the merits of
that judgment, pursuant to Federal Rule of Civil Procedure 59(e).
The United States Court of Appeals for the Fourth Circuit has
recognized three grounds for amending an earlier judgment: (1) to
accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to correct
a clear error of law or prevent manifest injustice.

Pacific Ins.

Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
“[Federal] Rule [of Civil Procedure] 59(e) motions may not be used
. . . to raise arguments which could have been raised prior to the
issuance of the judgment, nor may they be used to argue a case
under a novel legal theory that the party had the ability to
address in the first instance.”

Id.

A Rule 59(e) motion may not

be used to relitigate old matters and is an extraordinary remedy
that should be used sparingly.

Id.

It is improper to use such a

motion to ask the court to “rethink what the court has already
thought through -- rightly or wrongly.”

Above the Belt, Inc. v.

Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).
IV.
A.

Discussion

Motion for Leave to Amend
While leave to amend cannot be granted post-judgment without

vacating the original judgment in the matter, these plaintiffs have
not only requested that the judgment in this case be vacated based

10

upon their request for leave to amend, but also based upon the
merits of this Court’s original opinion.

As a result, this Court

finds it appropriate to initially decide whether its judgment can
be vacated based upon Rule 15(a) standards before determining
whether to vacate its judgment based upon the merits of the
opinion. After consideration of the motion for leave to amend, the
facts of this case and the controlling law, this Court is of the
opinion that the plaintiffs’ joint motion for leave to amend
pursuant to Federal Rule of Civil Procedure 15(a)(1) must be
denied.
Whether

or

not

to

grant

leave

to

amend

is

within

the

discretion of the district court, and the goals of Rule 15 of the
Federal Rules of Civil Procedure, as well as the “interests of
justice” must always be weighed when considering such a motion.
Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 602-03
(4th Cir. 2010).

While the Fourth Circuit has determined that

delay alone, without more, is insufficient to justify denial of a
motion to amend, courts often consider unexcused delay, or undue
delay without reasonable excuse, as sufficient. See 6 Charles Alan
Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and
Procedure § 1488 (3d ed. 2010); Ondis v. Barrows, 538 F.2d 904, 909
(1st Cir. 1976); Vielma v. Eureka Co., 218 F.3d 458 (5th Cir.
2000); Twohy v. First Nat’l Bank of Chicago, 758 F.2d 1185, 1196-97
(7th

Cir.

1985);

Moses.com

Securities,

Inc.

v.

Comprehensive

Software Systems, Inc., 406 F.3d 1052 (8th Cir. 2005); Landon v.

11

Northern Natural Gas Co., 338 F.2d 17, 20 (10th Cir. 1964).

Such

unexcused delay is often also considered evidence of dilatory
motive and prejudice to the non-movant when leave to amend is
sought after the district court has dismissed the plaintiff’s
claims.

While the Fourth Circuit has not directly endorsed

unexcused delay as sufficient grounds for denying a motion for
leave to amend, other circuits that agree that delay alone is
insufficient have endorsed this approach, and have, in this Court’s
opinion, done so based upon sound reasoning rooted in the goals of
the Federal Rules of Civil Procedure and in the interests of
justice.
The Fifth Circuit in Vielma v. Eureka Co. explained that,
while delay alone is insufficient grounds upon which to deny a
motion to amend, it considers unexcused delay in filing a motion
for leave to amend a sufficient basis for post-judgment denial of
such a motion because, “much of the value of summary judgment
procedure . . . would be dissipated” if a movant were allowed to
rely on one theory until the district court finds that theory
“unsound,” then to return with another theory after unfavorable
judgment is entered.

218 F. 3d at 469 (quoting Briddle v. Scott,

63 F.3d 364, 380 (5th Cir. 1995)).

In Vielma, the plaintiff, who

moved for leave to amend to add federal claims to her original
state law claims after the district court had dismissed her claims
on summary judgment, admitted to the trial court that she had
waited to add the federal claims because she believed that the

12

state law claims would be more successful at trial.

The Fifth

Circuit there held that, “[the plaintiff] had ample notice of [the
defendant’s] summary judgment motion, including its stated ground
that her [state law claims] were time-barred.

Accordingly, Vielma

could have sought to amend her complaint . . . well before the
court entered judgment. She did not do so, however, and the
district court did not abuse its discretion in denying her leave to
make a post-judgment amendment.”

Id.

Similar holdings are prevalent throughout the federal district
courts and are regularly upheld by the circuit courts of appeals.
See Wright, et al. § 1488 n.30.

In In re NationsMart Corp. Sec.

Litig., 130 F.3d 309 (8th Cir. 1997), the Eighth Circuit upheld the
district court’s refusal to grant leave to amend to a plaintiff who
sought leave following dismissal because, “the plaintiffs waited
until two weeks after the dismissal of most of their case to
attempt to remedy problems of which they were aware months before.”
Id. at 323.

The Seventh Circuit too, in Twohy v. The First Nat’l

Bank of Chicago, 758 F.2d 1185 (7th Cir. 1985), upheld a district
court’s

refusal

to

grant

post-dismissal

leave

to

amend

for

unexcused delay, remarking that “delay in presenting a postjudgment amendment when the moving party had an opportunity to
present the amendment earlier is a valid reason for a district
court not to permit an amendment.” Id. at 1196 (internal citations
omitted).

13

Further, the Fifth Circuit in Mitsubishi Aircraft Int’l, Inc.
v. Brady, 780 F.2d 1199 (5th Cir. 1986), observed that, because the
claim sought to be added to the plaintiff’s complaint following
dismissal was known to the plaintiff since the original filing date
of the case, failure to seek leave to add it before dismissal
“strongly suggest[ed] either a lack of diligence on its part or a
lack of sincerity.”

Id. at 1203.

Here, much like in the above-cited cases, this Court finds
that the plaintiffs were aware of the claims they now seek to add
long before they sought leave to amend their prior-dismissed
complaint. In fact, the plaintiffs were aware of these claims even
before this case was filed over a year ago.

This is evident, in

part, from the original complaint filed in this case, which
outlines with significant specificity, the defendants’ alleged
refusal to comply with WVU’s Policy and Procedures for Responding
to Allegations of Academic Misconduct. These alleged refusals form
much of the basis for the claims that the plaintiffs now seek to
add. It is noted that the aforementioned document is also attached
to the plaintiffs’ original complaint as Exhibit A.
The plaintiffs offer as explanation for their failure to
request leave to amend until a month after this Court granted
summary judgment, that Judge Tucker’s order which terminated all
academic misconduct proceedings on April 24, 2009 made the claims
now sought to be added unnecessary at the time that the case was
filed. Further, they say, until July 2011, when Judge Tucker

14

vacated

her

orders,

the

possibility of prosecution.

plaintiffs

were

protected

from

the

The plaintiffs also argue that, until

Judge Tucker denied a renewed motion to intervene in the case
before her,3 they had the continuing ability to protect their
rights in this regard by intervening in the state court proceeding.
This, the plaintiffs maintain, adequately explains their timing,
and removes any possible inference of bad faith.
This Court finds these arguments to be unpersuasive. While it
is conceded that Judge Tucker’s order of April 24, 2009 expressed
her opinion that the plaintiffs’ rights were being infringed upon
by the misconduct proceedings in exactly the same ways that Mr.
Lang’s rights were infringed, the plaintiffs were not and were
never at any time following that opinion, parties to, or protected
by, that order.

In fact, Judge Tucker even affirmatively denied

plaintiffs’ attempts to become parties to the proceedings in her
court.

Counsel

for

the

plaintiffs

in

this

case

are

highly

experienced attorneys, and this Court is not convinced that they
would have believed that the plaintiffs’ rights were adequately
protected or preserved by the proceedings before Judge Tucker.
Further, both the original complaint and the plaintiffs’
proposed amended complaint allege that the defendants failed to
follow the applicable university policies even after Judge Tucker
originally terminated the misconduct proceedings; the proposed

3

The Court presumes that this second denial occurred either at
the time that Judge Tucker vacated her orders, or at some time
contemporaneous to that action.
15

amended complaint even contends that “Defendants have repeatedly
contended that either Judge Tucker’s April 24, 2009 Order did not
apply to Plaintiffs or, more simply, that the Academic Integrity
Proceedings were still ongoing.”

(ECF No. 152-2, *19.)

Thus, the

plaintiffs not only cannot be reasonably charged with the belief
that they were protected by Judge Tucker’s order, but by their own
admission, they were allegedly experiencing ongoing refusal by the
defendants to abide by that ruling and/or to admit that it applied
to the plaintiffs, all throughout the nearly two and one-half
intervening years between Judge Tucker’s original order and the
plaintiffs’ current request to amend their complaint.
Even if this Court could reasonably conclude, despite the fact
that

the

plaintiffs

were

never

parties

to

the

Judge

Tucker

proceedings, and despite the admissions in both the original and
proposed

amended

complaints

of

ongoing

alleged

contractual

violations, that the plaintiffs believed that their rights were
adequately preserved and protected by the proceedings before Judge
Tucker, it nonetheless must conclude that the delay in moving for
leave to amend is undue and without adequate explanation.

The

plaintiffs admit that Judge Tucker vacated her prior orders on July
15, 2011, and at that time, it became necessary for them to amend
their complaint before this Court.

It is true that only three

months elapsed between this action and the plaintiffs’ request to
amend on October 12, 2011, but it is these three months in the
context of this litigation that make this delay undue.

16

All motions to dismiss in this case had been fully briefed and
were before this Court for consideration by April 26, 2011.

This

Court issued its memorandum opinion and order granting summary
judgment and dismissing the case on September 15, 2011 -- thus, the
plaintiffs were fully on notice of the defendants’ allegations that
the original complaint was time-barred for nearly five months
before this Court granted summary judgment to the defendants.
During this entire time, the plaintiffs were aware that their
complaint may be deemed insufficient by this Court.

Further, on

July 28, 2011, after Judge Tucker vacated her orders on July 15,
2011,4 this Court informed the parties that it intended to convert
the motions to dismiss to motions for summary judgment to allow the
parties to submit affidavits with regard to the applicable statute
of limitations.

Still, the plaintiffs stood by the validity of

their original complaint and did not seek leave to add any new
claims by amending their complaint. Finally, it was another two
months after Judge Tucker vacated her orders, and after the
aforementioned notification, that this Court entered its memorandum
opinion and order granting summary judgment and dismissing this
case.

At no point during this period when motions for summary

4

In their reply to the defendants’ response to their motion
for leave to amend, the plaintiffs say that Judge Tucker vacated
her previous orders without giving notice to Drs. Sears and Logar.
This Court is unable to discern whether this is an allusion to an
argument that the plaintiffs were unaware that the orders had been
vacated for some time after the vacatur occurred. However, it is
clear to this Court that the plaintiffs were immediately aware of
Judge Tucker’s action as, on July 18, 2011, a brief was filed with
this Court reporting the same.
17

judgment were pending, did the plaintiffs give any indication to
this Court of an intent to amend their complaint.
The plaintiffs also maintain that their motion is not untimely
because it was filed before the deadline to amend set forth in the
original scheduling order in this case.

However, the context of

the progression of this case following the issuance of that
scheduling order makes this argument unpersuasive as well.

Simply

because this Court set a deadline for amendments in the original
scheduling order, does not mean that it cannot consider, under the
individual circumstances of this case following the issuance of
that order, whether amendment is appropriate at whatever time it
may be requested, be it before that deadline or not.

Moses.com

Securities, Inc., 406 F.3d at 1066 (“The date on the scheduling
order does not confine the district court’s consideration of the
merits of [motions to amend] and does not preclude it from finding
that an amendment would result in prejudice”).
Further, the plaintiffs attempt to distinguish this case from
many of the other cases where delay is cited as a ground for
denial,

by

arguing

that

this

case

has

not

progressed

into

discovery, nor has a period of many years elapsed between the
filing

of

the

complaint

and

the

request.

However,

as

the

plaintiffs point out, just as courts cannot place arbitrary time
limits on when a motion to amend can be granted, nor can arbitrary
restrictions be placed upon when it can be deemed untimely.

The

plaintiffs were fully aware of the availability of these claims,

18

even by their own time-line, two months before this Court granted
summary judgment and three months prior to the time that they filed
their motion to amend.

At the time, and for months beforehand,

they were also aware of the possibility that this Court would find
that their original complaint was untimely.

Nonetheless, they

chose to stand behind their original complaint, and only when that
complaint was dismissed, did they elect to move to amend.
This Court does not suggest that it infers bad faith or
dilatory motive from these actions, but only that, in the climate
of a post-dismissal motion for leave to amend, the facts of this
case are such that this Court believes that the interests of
justice weigh more heavily toward finality of judgment than toward
granting leave to amend. See Laber, 438 F.3d at 433 (“the interest
in finality that attaches to every judgment must of necessity weigh
in the exercise of the district court’s discretion in [a postjudgment motion for leave to amend]”)(Wilkinson J., concurring).
Further, the fact that the plaintiffs delayed in prosecuting
claims that were known to them even before the filing of their
original complaint, until a time following dismissal of this case
stands, in itself, is a representation of substantial prejudice to
the defendants. The defendants have an interest in the finality of
the judgment in their favor and would be prejudiced if they were
unable to rely on such a judgment.

Additionally, while little

discovery took place in this case, the defendants expended a
significant amount of time and effort on the motions for summary

19

judgment based upon the original complaint, and would also be
prejudiced by the fact that granting leave to amend in this case
would, in effect, allow plaintiffs to hold claims “up their sleeve”
so to speak, until such time that it is necessary to play all of
their cards.

Such an approach to litigation is not favored under

the Federal Rules of Civil Procedure.
Rule 15(a) is designed to allow parties the opportunity to
amend pleadings “to assert matters which were overlooked or were
unknown at the time the party interposed the original complaint.”
Wright, et al. § 1472.

Further the rule is intended to advance a

basic goal of the Federal Rules of Civil Procedure; to allow
“maximum opportunity for each claim to be decided on its merits
rather than on procedural technicalities.” Id. at § 1471. Neither
of these purposes would be advanced by allowing the plaintiffs
leave to amend here.
ability

to

litigate

The plaintiffs are not being denied the
their

case

on

the

merits

based

upon

a

procedural technicality. They were aware of the possible defect in
their complaint for many months before they sought to amend their
complaint, and they failed to attempt to remedy the potential
deficiencies until judgment had already been entered. Further, the
plaintiffs are not utilizing Rule 15(a) to add claims overlooked or
not previously known to them at the time that they filed their
complaint.
The plaintiffs would have this Court rely upon Laber v. Harvey
to conclude that leave to amend should be granted because, in

20

Laber, the Fourth Circuit stressed that the same standard applies
for analysis of a post-judgment Federal Rule of Civil Procedure
15(a) request as it does pre-judgment.

This Court acknowledges

that this is true, and that delay alone based upon the fact that
dismissal has been entered cannot serve as a basis for denial.
However, the plaintiffs overlook a number of significant factual
differences between Laber and the instant case, as well as a number
of important aspects of the Fourth Circuit’s opinion in that case
which weigh heavily on this Court’s analysis here.
As the Court of Appeals indicates repeatedly throughout the
Laber opinion, the factual situation in that case was quite unique,
and formed the strongest basis for the holding.

438 F.3d at 428.

The plaintiff in Laber sought to amend his complaint after his
original complaint failed because the Fourth Circuit, en banc,
chose to overturn a line of previously binding precedent upon which
he had based his complaint.

The Court took note that it was “most

important” to that case that Laber’s situation was “not a run-ofthe-mill case where the plaintiff’s first theory of recovery is
based on his own reading of [Fourth Circuit] cases and it turns out
that he misinterpreted how that theory would apply to the facts of
his case.” Id. (emphasis in original). The instant case, however,
is exactly that type of situation.

The Fourth Circuit also noted

that it concluded that Laber had been diligent in the prosecution
of his case and in seeking leave to amend.

As explained above,

this Court has reached the opposite conclusion with regard to these

21

plaintiffs’ prosecution of their case and the timing of their
motion to amend.
Circuit

Judge

Wilkinson’s

concurring

opinion

further

illustrates the factual distinctiveness of the Laber case and how
the

instant

case

is

readily

distinguished.

Judge

Wilkinson

immediately remarked that “motions filed post-judgment for leave to
amend a complaint are not favored under law,” and that after
judgment has been entered, the efforts of the defense to win
judgment “should not be routinely undone after a decision of the
district court alerts a losing party to the deficiencies in its
case.”

Id. at 432.

Judge Wilkinson further makes clear that

Laber’s complaint had indeed been proper prior to the ruling
overturning
authorize[d]”

precedent

which

plaintiff’s

“squarely

theory

and

and

that

affirmatively
“[i]n

ordinary

circumstances, post-judgment motions for leave to amend serve only
to string litigation out.”

Id. at 433.

This case is not one of such unique circumstances as was
before the Court of Appeals in Laber. Thus, for the reasons above,
this Court finds that because of undue, unexcused delay, as well as
prejudice to the opposing parties, and in the interest of justice
which

weighs

in

favor

of

the

finality

of

the

judgment,

the

plaintiffs’ motion for leave to file an amended complaint should
be, and is denied.

22

B.

Motion to Alter of Amend Judgment
The plaintiffs also argue that this Court should amend its

judgment granting summary judgment for the defendants based upon,
what they consider to be three basic errors of law made by this
Court in reaching its opinion.

The assignments of error are as

follows: (1) that this Court did not properly apply the standard
for summary judgment; (2) that this Court applied an improper
standard for determining accrual of a § 1983 cause of action; and
(3) that this Court misconstrued authority on which it relied in
granting summary judgment on the statute of limitations issue in
defendants’ favor.
Initially, this Court finds it beneficial to reiterate its
position on the accrual of the statute of limitations in this case.
While 42 U.S.C. § 1983 does not contain an explicit statute of
limitations, the United States Code provides that state law shall
apply where federal law does not provide a statute of limitations.
42 U.S.C. § 1988.

All 42 U.S.C. § 1983 claims are treated as tort

claims for the recovery of personal injuries. Wallace v. Kato, 549
U.S. 384, 387 (2007). Therefore, the statute of limitations is two
years

pursuant

to

the

West

Virginia

23

“catch-all”

statute

of

limitations.

W. Va. Code § 55-2-12.5

This case was filed on

December 3, 2010.
This Court does not believe that, in applying this statute of
limitations to the facts of this case, it misapplied the standard
for summary judgment.

The plaintiffs argue that this Court failed

to draw all reasonable inferences in the plaintiffs’ favor, as must
be done in the proper determination of a motion for summary
judgment.
U.S.

574,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
587

(1986).

The

plaintiffs,

in

support

of

this

allegation, say that this Court improperly relied upon defendant
McDiarmid’s affidavit to arrive at its legal conclusions regarding
when the statute of limitations began to run.
This

argument

is

erroneous.

The

plaintiffs

base

this

contention on the fact that they say that they did not have notice
of their injury until December 2008, and that the statute of
limitations, as a result, began then. However, such an argument is
a legal conclusion, not a factual averment.

It is true that the

5

West Virginia Code Section 55-2-12 provides:

Every personal action for which no limitation is
otherwise prescribed shall be brought: (a) within two
years next after the right to bring the same shall have
accrued, if it be for damage to property; (b) within two
years next after the right to bring the same shall have
accrued if it be for damages for personal injuries; and
(c) within one year next after the right to bring the
same shall have accrued if it be for any other matter of
such nature that, in case a party die, it could not have
been brought at common law by or against his personal
representative.
W. Va. Code § 55-2-12.
24

plaintiffs’ proffered legal conclusion is opposed to the conclusion
that

this

Court

reached

regarding

the

date

plaintiffs were on notice of their injuries.

upon

which

the

Nevertheless, that

this Court’s conclusion was based upon partial reliance upon
defendant McDiarmid’s factual averments does not mean that this
Court inappropriately drew factual inferences in the defendants’
favor.

The plaintiffs did not offer factual opposition to the

facts offered by defendant McDiarmid’s affidavit, but rather only
advanced legal conclusions about when they were on notice of their
injuries.

McDiarmid made no conclusions in this regard, but only

offered dates when certain events occurred -- which dates were not
challenged.
This Court reached its own legal conclusion that, while in
opposition to that advanced by the plaintiffs, was based upon
unchallenged factual averments.

“‘When the Defendants’ affidavits

are undisputed by the Plaintiffs, the court cannot resolve the
facts in the Plaintiff’s favor based solely upon unsupported
allegations.’”

Boss v. Nissan N. Am., 228 Fed. App’x 331, 336

(quoting Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005)).
The plaintiffs also argue that this Court resolved factual
inferences in the defendants’ favor when it found that receipt of
the screening subcommittee report constituted inquiry notice of the
conflict of interest of defendant Kerr.

In making this argument,

the plaintiffs mischaracterize this Court’s opinion and conclusion
with

regard

to

the

conflict

of

25

interest

which

caused

the

plaintiffs’ injuries.

The plaintiffs say that the report received

no later than August 2008 was ambiguous as to the role that each
member of the screening subcommittee played in the process.

This

alleged ambiguity is irrelevant to this Court’s determination.

As

stated in this Court’s memorandum opinion and order granting
summary judgment to the defendants in this case, it was determined
that the constitutional violation in the plaintiffs’ complaint was
the alleged conflict of interest that existed during the entire
investigative process regarding the charges of academic misconduct.
(ECF No. 150, *11-12.)

The result of that investigative process,

the bringing of charges, was simply the culmination of this
allegedly unconstitutional process of which the plaintiffs became
aware when they were informed that defendant Kerr was a member of
the committee.
As such, the role that the conflicted committee-member played
in the preparation of the report, or whether she was “acting in a
capacity adverse to her former clients” is unimportant.

The

plaintiffs were on notice that the entire process could be tainted
when they were informed that a person who they considered to be
their former counsel was now a part of a panel assigned to
investigate them for the very events and actions that were the
subject of her alleged representation in the past.

This would be

true regardless of whether defendant Kerr was acting in a capacity
for or against them, or if she was acting in any such capacity at

26

all;

her

mere

presence

on

the

review

board

represented

the

conflict.
This Court similarly disagrees that it applied an improper
standard for determining accrual of the cause of action.

In their

argument, the plaintiffs say that this Court failed to assess
whether the plaintiffs both knew of their injury, and knew of who
injured

them

in

August

2008,

the

time

that

limitations was deemed to have started to run.

the

statute

of

Again, defendant

Kerr’s mere presence on the committee allegedly tainted the process
and constituted the plaintiffs’ injuries, and at the point that
they were informed that she was on the committee, the plaintiffs
were aware of who injured them.
Finally, this Court does not agree that it failed to properly
apply the authority to this case.

To this point, the plaintiffs

argue that this Court committed error in relying upon Delaware
State College v. Ricks, 449 U.S. 250 (1980), and Chardon v.
Fernandez, 454 U.S. 6 (1981).

In support of this contention, the

plaintiffs make factual distinctions between those cases and the
instant

situation,

which

this

Court

finds

unpersuasive

as

meaningful differentiations. Specifically, the plaintiffs focus on
the argument that in Ricks and Chardon, the injurious consequences
of the conduct accused were final from the time that the plaintiffs
discovered that a violation was taking place.

However, these

differentiations again mischaracterize the holding of this Court.
As stated above, this Court did not find that the plaintiffs were

27

injured

when

the

charges

were

brought

against

them.

More

specifically, in its memorandum opinion and order granting summary
judgment in this case, this Court found:
The basis of the plaintiffs’ due process claims are the
alleged conflict of interest during the investigation.
The bringing of academic misconduct charges against the
plaintiffs is not the violation of due process as alleged
in the facts produced in the plaintiffs’ complaint.
Rather, as the United States Supreme Court found in Ricks
and Chardon, the academic misconduct charges are the
consequences of the alleged discriminatory act at issue,
here, the alleged conflict of interest and alleged
tainted investigation that led to the bringing of
academic misconduct charges.
(ECF No. 150, *12.)
The violation in the plaintiffs’ complaint was the allegedly
tainted

process,

which

process

and

which

injuries

resulting

therefrom were final upon receipt of the screening subcommittee
report

and

notice

that

defendant

Kerr

was

a

member

of

the

committee. That the injuries became more severe and painful to the
plaintiffs at a later time is not relevant to this inquiry.
Additionally,

the

plaintiffs’

discussion

of

the

Fourth

Circuit’s opinion in Franks v. Ross, 313 F.3d 184 (4th Cir. 2002),
is misplaced. Here, the plaintiffs’ injury was not in doubt due to
“obvious

factual

contingencies,”

citations omitted).

as

in

Franks.

Id.

(internal

The plaintiffs were injured by the allegedly

tainted process from the time that they were informed that it
existed.

The investigation itself formed that injury.

This Court

disagrees with the plaintiffs that a challenge to the process would
not have been ripe for review at the time that the plaintiffs were

28

made aware of the conflicted investigation, but such a disagreement
is unnecessary at this point.
Franks

is

University’s

improper,
academic

as

is

The plaintiffs’ argument based upon
the

misconduct

plaintiffs’
policy

argument

precluded

them

that
from

bringing their claims until the screening subcommittee had issued
its final decision on academic misconduct charges.

Franks is not

a case that changed the law since this Court rendered its decision,
and both it and the academic misconduct policy were available to
the plaintiffs when the motions to dismiss were originally briefed.
“Rule 59(e) motions may not be used . . . to raise arguments which
could have been raised prior to the issuance of the judgment, nor
may they be used to argue a case under a novel legal theory that
the party had the ability to address in the first instance.”
Pacific Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998).
Indeed, the plaintiffs have already argued the points made in
their motion to alter the judgment, and this Court has already
considered each of them in its memorandum opinion and order.

The

plaintiffs did not submit any new evidence that would warrant
altering or amending the earlier order.

Furthermore, there has

been no change in the controlling law since this Court issued its
order, and this Court does not find that altering or amending the
order is necessary to prevent manifest injustice.

29

V.

Conclusion

For the reasons stated above, the plaintiffs’ motion for leave
to amend is hereby DENIED.

Further, the plaintiffs’ motion to

alter or amend judgment is likewise DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the Clerk of
United States Court of Appeals for the Fourth Circuit.
DATED:

January 25, 2012

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

30