Larry v. The Marion County Coal Company et al
Filing
57
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF'S MOTION TO AMEND COMPLAINT OUT OF TIME (DKT. NO. 42 ) AND DENYING AS MOOT THE PLAINTIFF'S MOTION TO STRIKE THE DEFENDANT'S EXTRANEOUS EVIDENCE (DKT. NO. 48 ). Signed by District Judge Irene M. Keeley on 8/2/16. (mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ALYSSA MOATE LARRY,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:15CV212
(Judge Keeley)
THE MARION COUNTY COAL COMPANY, and
MURRAY AMERICAN ENERGY, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
Pending before the Court are the motion to amend complaint out
of time (dkt. no. 42), filed by the plaintiff, Alyssa Moate Larry
(“Larry”), as well as her motion to strike extraneous evidence
presented by the defendants in their response (dkt. no. 48). For
the reasons that follow, the Court DENIES the motion to amend and
DENIES AS MOOT the motion to strike the defendants’ extraneous
evidence.
BACKGROUND
From January, 2012, to May, 2015, Larry worked in the human
resources department of the defendant Marion County Coal Company
(“MCCC”), whose parent company is defendant Murray American Energy,
Inc. (“MAEI”) (dkt. no. 1-1 at 2-3). In March, 2014, Larry was
promoted from the position of mine clerk to human resources
coordinator. Id. at 2.
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
After giving birth in February, 2015, Larry took maternity
leave for six weeks. Id. Upon returning to work, she informed her
supervisor that she would need to take approximately three breaks
each day to pump breast milk. Id. The supervisor allowed the
breaks, but did not provide Larry with a clean space in which to
to take them. Id. Instead, she took her lactation breaks in the
bathroom, which was the only space provided. Id.
On April 27, 2015, roughly one month after Larry’s return to
work, a male employee, Eric Zuchowski (“Zuchowski”), was promoted
to the position of human resources coordinator, the same position
Larry held. Id. at 3. Another month later, on May 28, 2015, MCCC
terminated Larry’s employment, telling her it was due to “mining
market conditions.” Id. Zuchowski, however, did not lose his job.
Id. Larry claims that MCCC did not provide a reason for choosing to
terminate her employment but not that of Zuchowski. Id. Shortly
after terminating Larry’s employment, MAEI
transferred in a male
employee from another MAEI mine, Ilya Shlyahovsky, and placed him
in the human resources coordinator position formerly held by Larry.
Id. According to Larry, the reasons MCCC gave for her termination
were merely pretextual.
2
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
Larry’s original complaint asserts three causes of action: (1)
Sex Discrimination, Pregnancy Discrimination, and Retaliation by
MCCC; (2) Aiding and Abetting Discrimination in Violation of the
West Virginia Human Rights Act (“WVHRA”) by MAEI; and (3) Wrongful
Termination under the Family Medical Leave Act (“FMLA”) by MCCC. Id
at 4-6. On May 24, 2016, Larry moved to amend her complaint to add
a claim for wrongful termination by MCCC under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. (dkt. no. 42). In
their memorandum in opposition, the defendants assert that they had
to rely on evidence outside of the pleadings, i.e., Larry’s sworn
testimony and an affidavit from her supervisor, in order to respond
to the motion to amend (dkt. no. 44 at 4). Therefore, they argue
that the motion should be considered under the summary judgment
standard. Id. In Larry’s reply, she moved to strike the defendants’
extraneous evidence from the record, and requested that the Court
disregard any arguments based on that evidence (dkt. no. 48 at 1).
STANDARD OF REVIEW AND APPLICABLE LAW
Federal Rule of Civil Procedure 15 permits a plaintiff to
amend a complaint “once as a matter of course” within either 21
days after serving the complaint, or 21 days after service of a
responsive pleading or a motion under Rule 12(b), (e), or (f),
3
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
whichever is earlier.
Fed. R. Civ. P. 15(a)(1).
“In all other
cases, a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.
The Court should
freely give leave when justice so requires.”
Fed. R. Civ. P.
15(a)(2).
The decision to grant or deny a motion to amend is within the
discretion of the Court. See Scott v. Family Dollar Stores, Inc.,
733 F.3d 105, 121 (4th Cir. 2013). Nonetheless, the Supreme Court
of the United States has set forth factors that courts should weigh
when applying Rule 15(a)(2). See Foman v. Davis, 371 U.S. 178, 182
(1962) (“the Foman factors”); Johnson v. Oroweat Foods Co., 785
F.2d 503, 509 (4th Cir. 1986) (citing Foman). Courts should grant
leave to amend unless the amendment (1) “would be prejudicial to
the opposing party,” (2) “there has been bad faith on the part of
the moving party,” or (3) “the amendment would have been futile.”
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)
(citing Foman, 371 U.S. at 182).
The first factor, whether there is prejudice to the opposing
party, 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. Johnson, 785 F.2d at 510.
4
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
Often, a finding of prejudice applies when the amendment is offered
“shortly before or during trial.”
Id. at 510 (citing Roberts v.
Arizona Board of Regents, 661 F.2d 796, 798 (9th Cir. 1981)
(citations omitted)).
The second factor is whether the party seeking to amend is
doing so in bad faith. Bad faith amendments are “abusive” or “made
in order to secure some ulterior tactical advantage.” GSS Props.,
Inc.
v.
Kendale
Shopping
Center,
Inc.,
119
F.R.D.
379,
381
(M.D.N.C. Mar. 15, 1988) (finding bad faith when plaintiff withheld
facts “clearly known to it prior to the filing of the complaint and
then moving to amend the complaint . . . to
force defendant to
settle or punish defendant for failing to settle”) (citing 6 C.
Wright & Miller, Federal Practice and Procedure, § 1487 (updated
Apr. 2015))).
Courts inquiring into the good faith of the moving party may
take into account the movant’s delay in seeking the amendment. See
6 C. Wright & Miller, Federal Practice and Procedure, § 1487
(updated Apr. 2015). Delay alone, however, “is an insufficient
reason to deny the plaintiff’s motion to amend.” Hart v. Hanover
Cty Sch. Bd., 495 F.App’x. 314 (Table) (4th Cir. 2012) (citing
Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006) (en banc) (internal
5
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
citations omitted)). Nonetheless, delay can be relevant as an
exacerbating factor to any finding of bad faith or prejudice.
Props.,
119
F.R.D.
at
381
(finding
that
blatant
delay,
GSS
in
combination with bad faith, was sufficient to deny plaintiff’s
motion to amend).
The third factor weighs against granting leave to amend when
that amendment would be futile. Johnson, 785 F.2d 509-10. Even in
the absence of prejudice and bad faith, a court should still deny
leave to amend on the basis of futility when the amended complaint
would not survive a motion to dismiss, Perkins v. United States, 55
F.3d 910, 917 (4th Cir. 1995), or “when the proposed amendment is
clearly insufficient or frivolous on its face.”
Johnson, 785 F.2d
at 510. Federal Rule of Civil Procedure 8(a) requires a “short and
plain statement of the claim showing that the pleader is entitled
to relief.” (emphasis added). See Burns v. AAF–McQuay, Inc., 980
F.Supp. 175, 179 (W.D.Va. Sept. 24, 1997) (noting that proper
standard of review when amendment is challenged on grounds of
futility is whether the proposed amendment states a claim upon
which relief can be granted). If relief cannot be granted, the
amendment is futile. See Hutsell v. Sayre, 5 F.3d 996, 1006 (6th
Cir. 1993) (where court already determined that police officer was
6
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
protected from liability under qualified immunity, amendment to add
police officer as defendant in a § 1983 action would be futile).
ANALYSIS
Because Larry filed her motion to amend out of time, and the
defendants have not consented, the amendment may only be granted
with the Court’s leave. Fed R. Civ. P. 15(a). Upon consideration of
the Foman factors — prejudice, bad faith, and futility – the Court
concludes that the motion to amend should be denied.
The first Foman factor requires the Court to determine whether
the opposing party would be prejudiced by the amendment. In this
case, the defendants would not be prejudiced by the proposed
amendment. Although filed out of time, the motion to amend was made
with adequate time remaining before the close of discovery and well
before the trial date. Furthermore, the amendment seeks to add a
legal basis for relief under the FLSA within a claim that was
already asserted in the original complaint under the FMLA, and
thus, would not require any new facts or discovery to establish or
defend.
Looking to the second Foman
factor, the Court finds no
evidence that Larry moved to amend in bad faith. It finds no
evidence
of
ulterior
motives
that
7
would
be
advanced
by
the
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
amendment and, although there may have been some delay between the
filing of the complaint and the motion to amend, it was not such
that would prejudice the defendant or give the plaintiff an
advantage. Larry was not dilatory to obtain any cognizable tactical
advantage.
Ultimately, however, when weighing the third Foman factor, the
Court concludes that Larry’s proposed amendment is futile, and
leave to amend should be denied. MCCC arguably violated 29 U.S.C.
§ 207(r) by not providing Larry with “a place, other than a
bathroom, that is shielded from view and free from intrusion from
coworkers and the public, which may be used by an employee to
express breast milk.” 29 U.S.C. § 207(r)(1)(B). Nevertheless,
Larry’s complaint does not establish a viable claim of retaliation
under the FLSA.
Pursuant to 29 U.S.C. § 215(a)(3), “it shall be unlawful for
any person. . . to discharge or in any other manner discriminate
against any employee because such employee has filed any complaint
or instituted or caused to be instituted any proceeding under or
related to this chapter.” 29 U.S.C. § 215(a)(3)(emphasis added).
Internal, oral complaints are often sufficient to state a viable
claim for retaliation under the FLSA.
8
Minor v. Bostwick Labs.,
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
Inc., 669 F.3d 428, 432 (4th Cir. 2012). An internal complaint,
however, must be clear enough to put the employer on notice that
the employee is asserting a right protected by the FLSA. Jafari v.
Old Dominion Transit Management Co., 462 Fed. Appx. 385, 389 (4th
Cir. 2012), remanded to
913 F.Supp.2d 217, 226 (E.D.Va. Dec. 20,
2012). To state a prima facie case of retaliation under the FLSA,
a plaintiff must establish: “(1) [s]he engaged in an activity
protected by the FLSA[, i.e., lodging a complaint or instituting a
proceeding]; (2) [s]he suffered adverse action by the employer
subsequent to or contemporaneous with such protected activity; and
(3) a causal connection exists between the employee’s activity and
the employer’s adverse action.” Darveau v. Detecon, Inc., 515 F.3d
334, 340 (4th Cir. 2008).
This provision, however, does not provide Larry with grounds
for relief based on the facts alleged in her complaint. Her amended
complaint never alleges that she filed any complaint, written or
verbal, or instituted any proceeding against MCCC regarding its
failure to provide a location other than a bathroom for her to
express breast milk. If Larry did not complain to her employer, she
has not satisfied the first prong in
case,
and
her
employer
cannot
9
be
establishing a prima facie
held
liable
under
FLSA
§
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
215(a)(3). Nor can she establish a causal connection between her
termination and her exercise of a protected activity when she has
not undertaken any such activity.
Based on the facts alleged in her amended complaint, Larry’s
FLSA claim fails to state a claim upon which relief may be granted
and would not survive a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). See Johnson, 785 F.2d at 510; Burns, 980
F.Supp. at 179.
Justice does not require the Court to grant leave
here inasmuch as the proposed claim is insufficient on its face and
therefore futile. Accordingly, the Court DENIES Larry’s motion to
amended her complaint (dkt. no. 42).
Finally, the defendants assert that the summary judgment
standard should be used to evaluate this motion because they are
relying on evidence outside of the pleadings (dkt. no. 44). In her
reply brief, Larry moved to strike the defendants’ extraneous
evidence, contending that the motion to dismiss standard was proper
here. Inasmuch as the Court has resolved this motion solely on the
face of the pleadings, without regard to the outside evidence
submitted, the motion to dismiss standard is proper. Because the
Court did not consider the disputed extraneous evidence in its
10
LARRY v. MARION COUNTY COAL CO.
1:15CV212
MEMORANDUM OPINION AND ORDER DENYING THE PLAINTIFF’S
MOTION TO AMEND COMPLAINT OUT OF TIME [DKT. NO. 42]
AND DENYING AS MOOT THE PLAINTIFF’S MOTION TO STRIKE
THE DEFENDANT’S EXTRANEOUS EVIDENCE [DKT. NO. 48]
ruling on the motion to amend, it DENIES AS MOOT Larry’s motion to
strike it (dkt. no. 48).
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: August 2, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
11
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