Holbert v. OMG, L.L.C. et al

Filing 52

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT GREENE'S ENERGY SERVICES, INC.'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO AMEND: It is ORDERED that defendant Greene's Energy Services, Inc.'s 31 Motion for Summary Judgment is denied and Plaintiff's 39 Motion for Leave to Amend his Complaint is granted in part and denied in part. Signed by Senior Judge Frederick P. Stamp, Jr on 10/30/13. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JAMES HOLBERT,
Plaintiff,
v.

Civil Action No. 1:12CV159
(STAMP)

OMG, LLC, formerly know as
North East Mud Services Company,
LLC (NEMSco), a West Virginia
limited liability company,
BAKER HUGHES INCORPORATED,
successor-in-interest by acquisition
to North East Mud Services Company,
LLC (NEMSco), a Delaware corporation,
RANGE RESOURCES CORPORATION, individually
and/or through its subsidiary,
RANGE RESOURCES-APPALACHIA, LLC,
a Delaware corporation,
Defendants,
and
GREENE’S ENERGY SERVICES, INC.,
a Wyoming corporation,
Defendant and
Third-Party Plaintiff,
v.
GREENE’S ENERGY GROUP, LLC,
Third-Party-Defendant.
MEMORANDUM OPINION AND ORDER
DENYING DEFENDANT GREENE’S ENERGY SERVICES,
INC.’S MOTION FOR SUMMARY JUDGMENT AND
GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND

I.

Procedural History

The plaintiff, James Holbert, filed this products liability
and personal injury action in the Circuit Court of Harrison County,
West Virginia.

The plaintiff alleges that he received several

injuries when he was electrocuted at Range Resources Appalachia
LLC’s (“Range Resources”) Hewitt, Douglas well site in Taylorstown,
Pennsylvania (“well site”) while employed by Northeast Energy
Management, Inc.

The defendants jointly removed this civil action

to this Court pursuant to 28 U.S.C. §§ 1441 and 1446, citing
jurisdiction in this Court pursuant to 28 U.S.C. § 1332(a).
Thereafter,

defendant,

Greene’s

Energy

Services,

LLC

(“Greene’s Services”), filed a motion for leave to file a thirdparty complaint against Greene’s Energy Group, LLC (“Greene’s
Group”). Former defendant, OMG, LLC (“OMG”), then filed a proposed
partial dismissal order.

This Court granted both motions, in

separate orders, allowing Greene’s Services to file a third-party
complaint and dismissing OMG with prejudice, thereby terminating
OMG from this case.
complaint

against

Greene’s Services then filed a third-party

Greene’s

Group

arguing

that

Greene’s

Group

supervised the well site in question and thus is the actual party
liable

to

the

plaintiff

under

Count

VI

of

the

plaintiff’s

complaint.
Greene’s Services then filed a motion for summary judgment as
to Count VI of plaintiff’s complaint, which asserts claims against

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Greene’s Services. After the motion for summary judgment was fully
briefed, the plaintiff filed a motion for leave to amend the
complaint in order to add claims against the newly-added thirdparty defendant, Greene’s Group.

That motion is also fully

briefed.
II.

Facts

On April 24, 2010, the plaintiff was climbing the stairs of a
mud-shaker at the well site when an electrical supply wire came
into contact with the stairs and allegedly electrocuted him.

The

plaintiff alleges that he was then thrown ten feet to the ground
and seriously injured.
Before the incident, however, the plaintiff alleges that OMG
had leased, placed, installed, and wired the mud-shaker for use at
the well site. Further, the mud-shaker was supplied electricity by
a diesel generator that was also furnished, leased, installed, and
connected by OMG personnel.

The plaintiff alleges that the

generator did not have an overload safety device, a ground rod, or
an emergency “kill” switch.

In addition, the plaintiff avers that

after the generator was installed, Range Resources decided that the
electrical wiring from the generator to the mud-shaker needed
modified.

Allegedly, Range Resources contracted with Greene’s

Services to do so.
The plaintiff contends that Greene’s Services placed the
wiring between or near metal steps and the mud-shaker’s platform

3

or, in the alternative, lodged the wiring between the metal steps
and the mud-shaker’s metal platform.

Further, the plaintiff

alleges that this wiring was installed directly from the generator
to the mud-shaker without a circuit breaker.

This defective

wiring, the plaintiff avers, caused the incident that occurred on
April 24, 2010.
Specifically, in Count VI of the plaintiff’s complaint, the
plaintiff

asserts

that

Greene’s

Services

violated

a

duty

to

discover and disclose the unsafe and defective nature of the
generator

which

allegedly

caused

the

plaintiff’s

injuries.

Additionally, the plaintiff alleges that Greene’s Services violated
a duty to modify the generator’s wiring “in a workman-like manner
with

the

skill

contractor.”

and

knowledge

of

a

reasonable

electrical

The plaintiff also alleges that the violation of the

duty owed to him by Greene’s Services was the direct and proximate
cause

of

the

plaintiff’s

injuries

and,

as

a

result

of

that

violation, the plaintiff was severely injured.
III.
A.

Applicable Law

Motion for Summary Judgment
Under Rule 56(d) of the Federal Rules of Civil Procedure,
When Facts Are Unavailable to the Nonmovant.
If a
nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or
to take discovery; or
(3) issue any other appropriate order.
4

Fed. R. Civ. P. 56(d).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.” Temkin v. Frederick
County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied,
502 U.S. 1095 (1992) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986)).

However, as the United States Supreme

Court noted in Anderson, “Rule 56(e) itself provides that a party
opposing a properly supported motion for summary judgment may not
rest upon the mere allegations or denials of his pleading, but
. . . must set forth specific facts showing that there is a genuine
issue for trial.”

Id. at 256.

“The inquiry performed is the

threshold inquiry of determining whether there is the need for a
trial -- whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.”
Id. at 250; see also Charbonnages de France v. Smith, 597 F.2d 406,
414 (4th Cir. 1979) (Summary judgment “should be granted only in
those cases where it is perfectly clear that no issue of fact is
involved and inquiry into the facts is not desirable to clarify the
application of the law.” (citing Stevens v. Howard D. Johnson Co.,
181 F.2d 390, 394 (4th Cir. 1950))).

5

Further, summary judgment is generally appropriate only after
adequate time for discovery.

Evans v. Technologies Applications &

Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996).
must

be

refused

where

the

nonmoving

“[S]ummary judgment

party

has

not

had

the

opportunity to discover information that is essential to his
opposition.”

Anderson, 477 U.S. at 250 n.5.

However, “great

weight [is placed] on the [Federal Rule of Civil Procedure] Rule
[56(d)] affidavit, believing that a party may not simply assert in
its brief that discovery was necessary and thereby overturn summary
judgment when it failed to comply with the requirements of Rule
[56(d)] to set out reasons for the need for discovery in an
affidavit.”

Id. at 961.

In reviewing the supported underlying

facts, all inferences must be viewed in the light most favorable to
the party opposing the motion.

See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B.

Motion for Leave to Amend
Federal

Rule

of

Civil

Procedure

15(a)(1)(A)

states,

in

pertinent part, that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive
pleading.”

If a party seeks to amend its pleadings in all other

cases, it may only do so “with the opposing party’s written consent
or the court’s leave.
justice so requires.”

The court should freely give leave when
Fed. R. Civ. P. 15(a)(2).

6

Rule

15(a)

grants

the

district

court

broad

discretion

concerning motions to amend pleadings, and leave should be granted
absent some reason “such as undue delay, bad faith, or dilatory
motive

on

the

part

of

the

movant,

repeated

failure

to

cure

deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment or
futility of the amendment.”

Foman v. Davis, 371 U.S. 178, 182

(1962); see also Ward Elec. Serv. v. First Commercial Bank, 819
F.2d 496, 497 (4th Cir. 1987); Gladhill v. Gen. Motors Corp., 743
F.2d 1049, 1052 (4th Cir. 1984).
IV.
A.

Discussion

Motion for Summary Judgment
Greene’s Services contends that (1) neither was it under a

contract with Range Resources to provide electrical equipment,
generators, and/or wiring to the well site, nor was it present at
the well site the date of the incident, thus it did not owe a duty
of care to the plaintiff; and (2) Greene’s Group was engaged in the
electrical work at the well site and was also present at the well
site the date of the incident, thus it is the appropriate party.
Because of these two contentions, Greene’s Services argues that the
plaintiff cannot prove an essential element of his claim, that a
duty of care was owed, and thus summary judgment is appropriate.
On the other hand, the plaintiff argues that Greene’s Services
has not shown that it was not present at the well site at any time.

7

Rather, the plaintiff contends that Greene’s Services performed
work at the well site four days prior to the incident and thus it
is still unclear whether Greene’s Services performed the particular
work at issue.

Further, the plaintiff asserts that fact discovery

is not complete and that he has not had a sufficient opportunity to
determine each defendant’s responsibility for his injuries.

The

plaintiff contends that such evidence is in Greene’s Services’
control and that depositions of the defendants and their employees
are required for the plaintiff to obtain the best information about
the cause of his injuries.

The plaintiff thus concludes that a

genuine issue of material fact exists and summary judgment is
inappropriate.

The plaintiff also filed a Rule 56(d) affidavit

which makes the same arguments.
In its reply, Greene’s Services argues that the plaintiff has
failed to show that Greene’s Services engaged in any activity
contributing

to

the

plaintiff’s

injuries.

Further,

Greene’s

Services contends that the plaintiff’s affidavit has made a general
assertion about the work Greene’s Services performed at the well
site and has not established or specifically asked for discovery
that will establish what type of work was performed by Greene’s
Services.

Accordingly, it asserts, no set of facts which could be

discoverable could establish liability. Finally, Greene’s Services
argues that even if it is dismissed from this case, the plaintiff

8

will still be able to conduct the requested discovery and take
depositions of representatives of Greene’s Services.
Under West Virginia law, “[i]n order to establish a prima
facie case of negligence [ ], it must be shown that the defendant
has been guilty of some act or omission in violation of a duty owed
to the plaintiff. No action for negligence will lie without a duty
broken.”

Miller v. Whitworth, 455 S.E.2d 821, 824 (W. Va. 1995).

The determination of whether there is a duty is a question of law
and not a question of fact for the jury.

Id.

Further, under West

Virginia law, “it is well established that [o]ne who engages in
affirmative conduct, and thereafter realizes or should realize that
such conduct has created an unreasonable risk of harm to another,
is

under

a

duty

threatened harm.”

to

exercise

reasonable

care

to

prevent

the

Robertson v. LeMaster, 301 S.E.2d 563, 611-12

(W. Va. 1983).
The plaintiff in this case alleges that a duty to exercise
reasonable care was owed by Greene’s Services to him because it
performed

work

on

the

well

site,

specifically

it

performed

electrical work on the generator and mud-shaker. Greene’s Services
denies that it performed any work on the well site that would have
led to a duty of care connected to the plaintiff’s injuries which
is shown by the work logs kept at the well site.

The plaintiff,

however, argues that he is unable to determine whether or not
Greene’s Services’ work at the well site involved the generator or

9

the mud-shaker because he has been unable to perform depositions
and is not in receipt of discovery materials that Greene’s Services
has.

Further, the plaintiff filed an affidavit pursuant to Rule

56(d) stating as much.

Thus, the plaintiff contends that he has

attempted to prove the facts underlying the duty of care element
and has been unable to do so because discovery has not taken place
that would allow him to present those facts.
To

reiterate,

“[i]f

a

nonmovant

shows

by

affidavit

or

declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may (1) defer
considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.”

Fed. R. Civ. P. 56(d).

Based on the

arguments made by the parties, it is unclear who owed a duty of
care to the plaintiff, either Greene’s Services or Greene’s Group,
or both.

The plaintiff has averred that he has not conducted

depositions of the representatives of Greene’s Services and needs
to do so in order to determine what work Greene’s Services actually
completed on the well site.

This fact will be determinative of

whether or not Greene’s Services is by itself liable, jointly
liable with Greene’s Group, or is not liable at all and was
incorrectly joined in this action. Because the plaintiff has shown
that for specified reasons -- he has not been able to conduct
depositions -- he is unable to present facts essential to justify

10

his position, Greene’s Services motion for summary judgment must be
denied under Rule 56(d).

Accordingly, based on the affidavit

submitted by the nonmovant and his underlying brief, this Court
finds that the best action at this time is to deny the motion for
summary judgment because of the need for more discovery in this
action.
B.

Motion for Leave to Amend
The plaintiff’s motion for leave to amend asks for leave so

that the plaintiff may add claims against the third-party defendant
who was added by Greene’s Services, Greene’s Group.
contends

that

Greene’s

Services

alleges

in

The plaintiff

its

third-party

complaint that it was actually Greene’s Group who supervised the
work site that the plaintiff was injured on and that if those
allegations are true, Greene’s Group will be the actual party
liable to the plaintiff under Count VI of his complaint.

Further,

he asks that he may amend the complaint to remove OMG from the
caption of this case because this Court has dismissed OMG as a
defendant.
Greene’s Group, in an untimely response, contends that the
plaintiff should not be allowed to join it as a defendant because
the plaintiff failed to dutifully investigate.

Greene’s Group

argues that because the plaintiff failed to dutifully investigate,
significant discovery has now taken place and adding it as a thirdparty defendant will result in prejudice.

11

To support this claim,

Greene’s Group claims that three depositions have already taken
place and that its lack of participation in those depositions will
lead to substantial prejudice.
In his reply, the plaintiff argues that he was not dilatory in
naming Greene’s Group as a defendant and at worst had known about
it as a defendant for five months.

Second, the plaintiff asserts

that Greene’s Group will not be prejudiced because only one
deposition was taken before Greene’s Group was impleaded by another
defendant.

Further, the plaintiff contends that Greene’s Group

will have all other discovery materials available to it and thus,
it will be privy to the same information as all other parties
except for one deposition.

Finally, the plaintiff argues that

because trial is almost a year away and this Court has granted
additional discovery time for the parties, Greene’s Group will have
enough time to complete the discovery that it has missed.
Again, leave should be granted absent some reason “such as
undue delay, bad faith, or dilatory motive on the part of the
movant,

repeated

failure

to

cure

deficiencies

by

amendments

previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment or futility of the amendment.” Foman
v. Davis, 371 U.S. 178, 182 (1962); see also Ward Elec. Serv. v.
First Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987); Gladhill
v.

Gen.

Motors

Corp.,

743

F.2d

1049,

1052

(4th

Cir.

1984).

Greene’s Group asserts that the plaintiff has moved for amendment

12

after undue delay and that it will be prejudiced by the amending of
the complaint.

In support of this assertion, Greene’s Group

contends that the plaintiff had ample time to join it and should
have known of its existence through proper investigation. Further,
Greene’s Group argues that the depositions that have been taken in
this case without the presence of Greene’s Group, especially the
deposition of a representative of North East Energy Management
Incorporated, will prejudice it in defending itself in this case.
The plaintiff avers that it has only known of Greene’s Group’s
presence for, at the most, five months.

Further, he argues that

even this calculation is generous given that Greene’s Services did
not file a third-party motion until much later.
This Court finds that the plaintiff has not filed this motion
with undue delay.

The plaintiff filed his motion a little over a

month after the third-party complaint had been filed by Greene’s
Services.

At this point, the plaintiff would have been aware of

the fact that Greene’s Services was attempting to shed liability by
asserting a claim against Greene’s Group.

Thus, this Court finds

that a one month delay between the time at which the plaintiff
learned of the true nature of the claim against Greene’s Group did
not constitute undue delay.
Further, even if the plaintiff was first notified of Greene’s
Group’s presence five months before the motion was made, it was not
undue delay by the plaintiff in not filing at that time.

13

It

appears from the facts presented by the parties that the plaintiff
did

not

have

new

facts

or

new

evidence

until

that

point.

Overwhelmingly, district courts will only deny a motion to amend
for excessive delay where the moving party has not presented any
new evidence from the time at which the initial complaint was
filed, the delay was a lengthy period of time (usually extending
over a year), and/or discovery has been completed for a long period
of time.1

In this case, the plaintiff has shown that there was new

evidence since the time of filing the complaint.

Further, five

months is not an excessive delay that extended over a lengthy
period of time, especially considering the fact that discovery has
not been completed and is not due until May 2, 2014.

ECF No. 45.

Consequently, Greene’s Group’s argument that the plaintiff’s filing
was made with undue delay does not carry the day.
As for Greene’s Group’s contention that it will be unduly
prejudiced because of the depositions that have taken place, the
docket

report

shows

that

three

depositions

have

taken

place

(although the plaintiff states that only one took place before

1

Combs v. PriceWaterhouse Coopers LLP, 382 F.3d 1196 (10th
Cir. 2004) (motion to amend denial upheld where over 15 months had
passed from filing of first amended complaint before seeking leave
to amend, and movant offered no new evidence as grounds for
amendment); Somascan, Inc. v. Philips Medical Systems Nederland,
714 F.3d 62 (1st Cir. 2013) (motion to amend denial upheld where
movant had waited 17 months passed the deadline for amendments and
presented no persuasive argument for the delay); Net MoneyIN, Inc.
v. VeriSign, Inc., 545 F.3d 1359 (Fed. Cir. 2008) (motion to amend
denial upheld where the motion was filed 20 months after the
amendment deadline and four months after discovery was completed).
14

Greene’s Group was added) before Greene’s Group was pleaded in as
a third-party defendant.

ECF Nos. 20, 23.

Further, the plaintiff

concedes, and the docket report shows, that some written discovery
was exchanged prior to Greene’s Group becoming a party (corporate
disclosure statements and initial disclosures pursuant to Rule
26(a)(1)).
“It is true that prejudice can result where a proposed
amendment

raises

a

new

legal

theory

that

would

require

the

gathering and analysis of facts not already considered by the
opposing

party,

but

that

basis

for

a

finding

of

prejudice

essentially applies where the amendment is offered shortly before
or during trial.”

Johnson v. Oroweat Foods Co., 785 F.2d 503, 510

(4th Cir. 1986).

In this case, the parties are still engaged in

discovery and are far from a trial date.

District courts may

consider the completion of some discovery in its analysis of
prejudice but there are several factors that weigh in favor of
granting a motion to amend where discovery is still open.
For instance, in this case, the plaintiff’s deposition has not
been taken and further, there is still ample time for discovery;
both

factors

argument.

that

weigh

against

Greene’s

Group’s

prejudice

Scott v. Family Dollar Stores, Inc., 12-1610, 2013 WL

5630636 (4th Cir. Oct. 16, 2013) (finding that because the parties
were still in discovery, and many steps removed from trial, the
non-moving party would not be prejudiced); Sharkey v. Home Depot

15

USA, Inc., CV-00-1038-ST, 2001 WL 811031 (D. Or. May 17, 2001)
(allowing motion to amend where plaintiffs had filed the motion
while discovery was ongoing and the depositions of plaintiffs were
yet to be taken).

Additionally, the claim that the plaintiff is

alleging against Greene’s Group is the same claim he has asserted
against Greene’s Services.

Thus, discovery would not be increased

by the amendment, no new theories of relief are being added to the
plaintiff’s complaint, and thus this too goes against Greene’s
Group’s argument that it will be prejudiced. N. Am. Catholic Educ.
Programming Found., Inc. v. Womble, Carlyle, Sandridge & Rice,
PLLC, 887 F. Supp. 2d 78, 87 (D.D.C. 2012) (motion to amend denied
where the plaintiff was attempting to allege new theories of breach
and alter the factual foundations for some claims).

Accordingly,

the defendant has not shown that it will be unduly prejudiced by
the plaintiff’s amendment to his complaint and the plaintiff’s
motion should be granted as to adding the claim against Greene’s
Group.
C.

Removal of OMG
This Court notes that the plaintiff also asks in his motion

for leave to amend that he be able to amend the complaint so as to
remove OMG as a defendant.

As previously noted, OMG was dismissed

with prejudice by this Court pursuant to a joint partial dismissal
filed by the plaintiff and OMG.

ECF No. 26, 28.

This Court’s

policy is to not remove a party’s name from the caption heading

16

unless it is necessary to do so for trial purposes. Thus, inasmuch
as the plaintiff’s motion for leave to amend asks that OMG be
removed, the motion is denied.
V.

Conclusion

For the reasons stated above, the defendant Greene’s Energy
Services, Inc.’s motion for summary judgment is DENIED.

Further,

the plaintiff’s motion for leave to amend his complaint is GRANTED
IN PART and DENIED IN PART.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

October 30, 2013

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

17