Friend v. Remac America, Inc.

Filing 52

MEMORANDUM OPINION AND ORDER DENYING 42 MOTION TO AMEND. Signed by District Judge Gina M. Groh on 2/14/13. (njz)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

JOSEPH FRIEND,
Plaintiff,
v.

CIVIL ACTION NO. 3:12-CV-17
(JUDGE GROH)

REMAC AMERICA, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO AMEND
I. Introduction
This matter is currently before the court on Plaintiff’s Motion to Amend his Complaint
[Doc. 42], filed on November 15, 2012. On November 21, 2012, the parties filed a
Stipulation and Agreed Order [Doc. 45] extending Defendant’s deadline to respond to
Plaintiff’s motion. On November 26, 2012, the Court granted the parties’ stipulation
permitting Defendant to have a twenty-one day extension to respond to Plaintiff’s motion
[Doc. 46]. Defendant filed its Response [Doc. 48] on December 20, 2012. Plaintiff did not
file a reply, and the deadline for filing a reply has passed. Thus, these motions are ripe for
the Court’s review. For the following reasons, the Court DENIES Plaintiff’s Motion to
Amend his Complaint [Doc. 42].
II. Factual Background
In August 2009, Maryland corporation Defendant Remac America, Inc. (“Remac”)
hired Mineral County, West Virginia, resident Plaintiff Joseph Friend (“Friend”) to work

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at its scrap tire facility in Brandywine, Maryland. On January 29, 2010, Plaintiff moved
to Defendant’s facilities in West Virginia. On March 26, 2010, Plaintiff suffered a head
injury when the chain hook attached between two bull dozers broke, causing the end of
the chain to fly back and strike him in the head. At the time of his injuries, Plaintiff was
working at a site near Martinsburg, Berkeley County, West Virginia for Defendant
Remac.
Plaintiff concurrently filed claims for workers’ compensation benefits in West
Virginia and Maryland, though Defendant only had workers’ compensation insurance
coverage in Maryland. The West Virginia Workers’ Compensation Uninsured
Employers’ Fund accepted Plaintiff’s claim for payment on May 11, 2010. The Maryland
Injured Workers’ Insurance Fund (“IWIF”) accepted Plaintiff’s claim for payment by letter
dated December 8, 2010.
Meanwhile, the West Virginia Offices of the Insurance Commissioner (“OIC”) filed
state actions in West Virginia and Maryland against Defendant to recover more than
$24,000 of medical benefits it paid to Plaintiff since May 2010. In October 2010, these
lawsuits were resolved pursuant to a Global Agreement and Settlement with Release
entered into among Defendant, Plaintiff, the Maryland IWIF, and the West Virginia OIC.
The Maryland IWIF agreed to reimburse the West Virginia Fund for the paid medical
benefits. Defendant agreed to pay the West Virginia OIC a fine of $10,000 and the
costs of litigation. Plaintiff agreed to “withdraw, as though it were never filed, his West
Virginia workers’ compensation claim . . . and to waive his right to receive any additional
West Virginia workers’ compensation benefits from the [West Virginia] Fund as of
October 1, 2011.” [Doc. 5-32 at 7]. However, Plaintiff “specifically preserve[d] his right
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to bring a civil action under W. Va. Code § 23-4-2(d)(2)(ii),” which is a deliberate intent
action. Id.
III. Procedural Background
Plaintiff filed his Complaint in the Circuit Court of Berkeley County, West Virginia on
January 24, 2012. Defendant filed a Notice of Removal within thirty days after it was
served with the Complaint [Doc. 1]. Plaintiff is a citizen of West Virginia, and Defendant is
a Maryland corporation with its principal place of business in Maryland. Defendant asserts
that the matter in controversy exceeds $75,000. Thus, this case was removed pursuant
to diversity jurisdiction.
On March 6, 2012, Defendant filed a Motion to Dismiss or in the alternative, Motion
for Summary Judgment [Doc. 4]. Plaintiff responded on March 20, 2012 [Doc. 7]. On April
3, 2012, Defendant filed its reply [Doc. 10]. On May 7, 2012, this Court entered its Order
denying Defendant’s Motion to Dismiss as Converted to a Motion for Summary Judgment
[Doc. 16]. The Court held that the language of West Virginia Code § 23-2-1c(c) did not
preclude Plaintiff’s civil action because the statutory language applies only when “the
employee is a resident of a state other than this State . . . .” [Doc. 16, at 7]. The Court held
that Plaintiff is a West Virginia resident; thus, Defendant’s reliance on West Virginia Code
§ 23-2-1c(c) was misplaced as it applies only when a non-resident employee is involved.
On October 9, 2012, Plaintiff filed a Motion for Partial Summary Judgment on the
Issue of Plaintiff’s Burden of Proof [Doc. 35]. On October 23, 2012, Defendant filed a
Response/Cross Motion for Partial Summary Judgment on the Issue of the Cause Which
Plaintiff is Allowed to Bring [Doc. 38]. On November 5, 2012, Plaintiff filed his response in
opposition to Defendant’s cross motion [Doc. 40]. On November 13, 2012, Defendant filed
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its reply [Doc. 41]. The Court’s Order granted Defendant’s Cross Motion for Partial
Summary Judgment on the Issue of the Cause Which Plaintiff is Allowed to Bring [Doc. 38]
and denied Plaintiff’s Motion for Partial Summary Judgment on the Issue of Plaintiff’s
Burden of Proof [Doc. 35]. Thus, Plaintiff is prohibited from filing a negligence action as it
is barred by the Global Settlement Agreement.
IV. Legal Standard
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, “[a] party may
amend its pleading once as a matter of course . . . if the pleading is one to which a
responsive pleading is required, [within] 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” FED.
R. CIV. P. 15(a)(1)(B). However, “[i]n 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).
Rule 15(a)(2) provides that “[t]he court should freely give leave [to amend] when
justice so requires.” FED. R. CIV. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182,
83 S.Ct. 227, 230 (1962) (Supreme Court declaring that “this mandate is to be heeded”).
However, a district court has discretion to deny a motion to amend a complaint so long as
it does not outright refuse “to grant the leave without any justifying reason.” Foman, 371
U.S. at 182, 83 S. Ct.227. A district court may deny a motion to amend when the
amendment would be prejudicial to the opposing party, the moving party has acted in bad
faith, or the amendment would be futile. See Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.
2006) (en banc). The law is well settled “that leave to amend a pleading should be denied

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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 be futile.” Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.1986). Delay alone is an insufficient
reason to deny leave to amend. See id. Rather, the delay must be accompanied by
prejudice, bad faith, or futility. See Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th
Cir. 1999). The Fourth Circuit has stated that
[w]hether an amendment is prejudicial will often be determined by the nature
of the amendment and its timing. A common example of a prejudicial
amendment is one that “raises a new legal theory that would require the
gathering and analysis of facts not already considered by the [defendant,
and] is offered shortly before or during trial.” (citing Johnson v. Oroweat
Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (internal citations omitted). An
amendment is not prejudicial, by contrast, if it merely adds an additional
theory of recovery to the facts already pled and is offered before any
discovery has occurred.
Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980).
Leave to amend should be denied on the ground of futility when the proposed
amendment is clearly insufficient or frivolous on its face. See Johnson v. Oroweat Foods
Co., 785 F.2d 503, 510 (4th Cir. 1986); Davis v. Piper Aircraft Corp., 615 F.2d 606, 613
(4th Cir. 1980), cert. dismissed, 448 U.S. 911, 101 S. Ct. 25 (1980).

A proposed

amendment is futile “if . . . [it] fails to satisfy the requirements of the federal rules,” such as
Rule 12(b)(6). United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d
370, 376 (4th Cir. 2008) (quoting United States ex rel. Fowler v. Caremark RX, LLC, 496
F.3d 730, 740 (7th Cir. 2007)); see also United States v. Pittman, 209 F.3d 314, 318 (4th
Cir. 2000) (affirming district court’s holding that plaintiff’s amendment was futile as it was
barred by the statute of limitations and did not relate back).

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To survive dismissal for failure to state a claim, a plaintiff must establish “facial
plausibility” by pleading “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937, 1949 (2009). A reviewing court must “‘take the facts in the light
most favorable to the plaintiff,’ but it need not accept legal conclusions drawn from those
facts or ‘unwarranted inferences, unreasonable conclusions, or arguments.’” Giarratano
v. Johnson, 521 F.3d 298. 302 (4th Cir. 2008) (quoting E. Shore Mkts., Inc. v. J.D.
Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000)). A plaintiff must do more than
provide labels and conclusions–“a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007).
The Fourth Circuit Court of Appeals stated that “[a] plaintiff will not successfully resist
dismissal if he provides mere ‘naked assertions devoid of further factual enhancement’ or
his allegations establish only ‘a sheer possibility that a defendant has acted unlawfully.’”
Van Leer v. Deutsche Bank Securities, Inc., 479 Fed. Appx. 475, 479 (quoting Iqbal, 556
U.S. 662, 129 S. Ct. At 1949 (internal quotations and alteration omitted)). Additionally, the
plaintiff’s claims must cross “the line from conceivable to plausible.” Twombly, 550 U.S.
at 570, 127 S. Ct. 1955.
V. Discussion
Here, Plaintiff did not amend his Complaint within 21 days after service of
Defendant’s Motion to Dismiss [Doc. 4], filed on March 6, 2012. Thus, Plaintiff must
have leave of court to amend his Complaint. Plaintiff seeks to amend his Complaint to
pierce the corporate veil and bring suit against Mark Soresi personally, the sole

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shareholder, owner, and operator of Defendant Remac. First, Plaintiff argues that it
meets West Virginia’s two-prong test for piercing the corporate veil, and thus, amending
the complaint is not futile. Second, Plaintiff contends that leave should be granted when
justice so requires and that Plaintiff did not discover Defendant was undercapitalized
“until such time as Plaintiff received insurance policies from the corporation through
written discovery.” [Doc. 43].
Plaintiff seeks to amend his Complaint to add four new allegations:
3. Upon current information and belief, Mark Soresi (“Soresi”) is a resident
of the State of Maryland, is the owner, operator, and sole shareholder of
Defendant Remac, failed to follow corporate formalities, and made
business decisions for Remac, including decisions regarding the purchase
of insurance to protect workers who may be injured on the job while
working in West Virginia, prior to and on March 26, 2010.
4. Since the filing of the original complaint, Plaintiff has learned Defendant
Remac may not have carried proper insurance coverage to protect
employees injured on the job in West Virginia. Specifically, Remac may
not have any insurance policies in place which cover deliberate intent
causes of action, or negligence causes of action, filed by employees who
were injured on the job in the State of West Virginia on or before March
26, 2010.
5. Due to the possible lack of insurance coverage, Defendant Remac is
underfunded and may not be financially able to cover any judgment which
may be awarded against it by a jury in West Virginia for a deliberate intent
cause of action, or a negligence cause of action, filed by an employee who
was severely injured on the job on or before March 26, 2010 while working
in the State of West Virginia.
6. As the sole shareholder and owner and operator of Defendant Remac,
Defendant Mark Soresi made a conscious decision to not purchase
various insurance coverage for Defendant Remac, thus undercapitalizing
the corporation, and is personally liable to Plaintiff for his injuries and
damages.
Defendant objects to Plaintiff’s Motion to Amend for three reasons. First,
Defendant argues that the amendment is futile because it would not survive a motion to
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dismiss. Defendant contends that Plaintiff uses the incorrect test for piercing the
corporate veil, that Defendant is not undercapitalized to justify piercing the corporate
veil, and that the mere existence of Defendant as a close corporation does not qualify
as a lack of corporate formalities. Second, Defendant argues that Plaintiff’s amendment
is brought in bad faith to circumvent a previous discovery ruling by Magistrate Judge
Seibert, and Plaintiff “mislead the Court . . . to believe that REMAC’s lack of West
Virginia workers’ compensation insurance at the time of the subject accident equates to
REMAC having no insurance available to Plaintiff for his injuries . . . .” Def.’s Resp., p.
22. Last, Defendant argues that if Plaintiff’s Motion to Amend is granted it would result
in undue prejudice to Defendant and Mr. Soresi because Plaintiff is introducing a new
legal theory and would bring in a new defendant. Id. at 23.
A. Futility of Amendment
The Court must first determine whether leave to amend should be denied on the
ground of futility; thus, the Court analyzes the proposed amendment to determine
whether it would survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Plaintiff argues that he has alleged sufficient facts to permit
him to pierce the corporate veil. However, Plaintiff provided the Court with a two-prong
test used by the Supreme Court of Appeals of West Virginia in a contract case. This
matter is a tort case. The standard for piercing the corporate veil for a tort case is
different than the standard for a contract case.
West Virginia law “presumes . . . that corporations are separate from their
shareholders.” Syl. Pt. 1, Laya v. Erin Homes, Inc., 352 S.E.2d 93 (W. Va. 1986)

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(quoting Syl. Pt. 3 (in part), S. Elec. Supply Co. v. Raleigh Cnty. Nat’l Bank, 320
S.E.2d 515 (W. Va. 1984)). The party soliciting a court to disregard a corporate
structure has the burden of proof. Id. The Supreme Court of Appeals of West Virginia
elaborated on piercing the corporate veil, stating:
[w]hile, legally speaking, a corporation constitutes an entity separate and
apart from the persons who own it, such is a fiction of the law introduced
for purpose of convenience and to subserve the ends of justice; and it is
now well settled, as a general principle, that the fiction should be
disregarded when it is urged with an intent not within its reason and
purpose, and in such a way that its retention would produce injustices or
inequitable consequences.”
Syl. Pt. 2, Laya, 352 S.E.2d 93 (quoting Syl. Pt. 10, Sanders v. Roselawn Mem.
Gardens, 159 S.E.2d 784 (W. Va. 1968)).
In West Virginia’s leading case on piercing the corporate veil, the Supreme Court
of Appeals of West Virginia listed nineteen factors to be considered in deciding whether
to pierce the corporate veil, and the Court noted that the list was not complete. See
Laya, 352 S.E.2d at 98-99. In Southern Electrical Supply Co., a tort case, the
Supreme Court of Appeals of West Virginia stated:
[D]ecisions to look beyond, inside and through corporate facades must be
made case-by-case, with particular attention to factual details.
Decisions to “pierce” involve multifarious considerations, including
inadequacy of capital structures, whether personal and corporate funds
have been commingled without regard to corporate form by a sole
shareholder, whether two corporations have commingled their funds so
that their accounts are interchangeable; whether they have failed to follow
corporate formalities, siphoning funds from one corporation to another
without regard to harm caused either entity, or failed to keep separate
records. Other reasons to disregard the structure are, total control and
dominance of one corporation by another or a shareholder; existence of a
dummy corporation with no business activity or purpose; violation of law or
public policy; a unity of interest and ownership that causes one party or
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entity to be indistinguishable from another; common shareholders,
common officers and employees, and common facilities.
320 S.E.2d at 523. The Supreme Court of Appeals of West Virginia disregards the
corporate entity in situations “where the corporate form is being used to perpetrate
injustice, defeat public convenience, or justify wrongful or inequitable conduct.” Mills v.
USA Mobile Commc’ns, Inc., 438 S.E.2d 1, 4 (W. Va. 1993).
Defendant argues that the corporate veil cannot be pierced unless Plaintiff
demonstrates that Soresi participated in the wrongful act that makes Soresi personally
liable for Plaintiff’s injuries. The Supreme Court of Appeals of West Virginia recognized
that “an officer of a corporation is not personally liable for the corporation’s torts unless
he directed, sanctioned, or participated in the wrongful acts, including fraud: ‘A director
or an officer of a corporation does not incur personal liability for its torts merely by
reason of his official character unless he has participated in or sanctioned the tortious
acts [.]’” Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc., 425 S.E.2d 144, 148 (W.
Va. 1992) (internal citation omitted). However, a footnote in Bowling made clear that
the participation rule “does not depend on the same grounds as ‘piercing the corporate
veil,’ that is, inadequate capitalization, use of the corporate form for fraudulent
purposes, or failure to comply with the formalities of corporation organization.” Id.
Because participation liability is distinct from piercing the corporate veil and Plaintiff has
not raised participation liability, the Court will address Plaintiff’s allegation that Soresi
pierced the corporate veil.
Plaintiff contends that Laya’s two-prong test for piercing the corporate veil should
control. The two-prong test has (1) a disregard of formalities requirement and (2) a
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fairness requirement. Laya, 352 S.E.2d at 99. However, the Supreme Court of
Appeals of West Virginia clearly stated that the two-prong test applies to “a case
involving an alleged breach of contract.” Id. Because this is a torts case, the two-prong
test does not apply; however, the Court will apply Laya’s multi-factor, totality of the
circumstances test which also applies to tort cases.
Plaintiff’s proposed Amended Complaint states the following to attempt to allege
a claim for piercing the corporate veil: (1) Soresi did not observe corporate formalities
and (2) Defendant was undercapitalized. First, Plaintiff states that Soresi did not
observe corporate formalities because he is the sole owner, officer, and shareholder of
Defendant Remac and Remac does not have a board of directors or board of directors
or shareholder meetings. Pl.’s Mem. of Law, p. 23, ¶ 3. Defendant is a close
corporation, incorporated under Maryland laws, and it properly elected not to have a
board of directors in its Articles of Incorporation. See MD. CODE §4-101, et seq.
(permitting close corporation to elect to have no board of directors); Def.’s Ex. I, Articles
of Incorporation, p. 3. Also, pursuant to Maryland law, an individual may hold more than
one office in a close corporation. See MD. CODE § 4-102. Although Defendant was
incorporated under Maryland law, West Virginia law recognizes close corporations and
has stated that “[t]he concept of limited shareholder liability applies generally to a close
corporation, as well as to a corporation whose shares are publicly traded.” Laya, 352
S.E.2d at 97. Additionally, West Virginia law “permits close corporations, with one
shareholder, so [the Court] cannot [properly] disregard a corporation solely because it
has one . . . shareholder [ ].” Id. (quoting S. Elec. Supply Co., 320 S.E.2d at 515).

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Thus, although Soresi is the sole shareholder and director and fails to have a board of
directors and board of directors or shareholder meetings, it does not display a lack of
corporate formalities to justify piercing the corporate veil as these practices and
decisions are legally permitted under a close corporation. The only other statement in
Plaintiff’s proposed Amended Complaint states that Defendant “failed to follow
corporate formalities.” This is a legal conclusion and is not accepted as true.
Therefore, taking Plaintiff’s factual allegations as true, the Plaintiff has failed to
sufficiently allege a lack of corporate formalities that justify piercing the corporate veil.
Second, Plaintiff alleges that Defendant was undercapitalized because it “may
not have carried proper insurance coverage to protect employees injured on the job in
West Virginia” and “may not have any insurance policies in place which cover deliberate
intent causes of action, or negligence causes of action, filed by employees who were
injured on the job in the State of West Virginia on or before March 26, 2010.” Pl.’s Mem.
of Law, p. 23, ¶ 4.

Plaintiff summarizes that Defendant may be undercapitalized “[d]ue

to the possible lack of insurance coverage.” Pl.’s Mem. of Law, p. 23, ¶ 6.
In considering whether a corporation is undercapitalized, a court will consider
whether the corporation failed to adequately capitalize itself for the reasonable risks of
the corporate undertaking. Laya, 352 S.E.2d at 98. When analyzing Plaintiff’s
allegations that Defendant was undercapitalized, the Court must determine that Plaintiff
has nudged his claim across “the line from conceivable to plausible.” Twombly, 550
U.S. at 570, 127 S. Ct. 1955. A complaint does not suffice if “it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 677, 129 S. Ct.

12

1949 (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955).
Plaintiff’s allegations regarding Defendant’s undercapitalization are all qualified
by may and possible. Plaintiff makes no allegation establishing that it is plausible that
Defendant was undercapitalized. In analyzing Plaintiff’s allegations, Defendant is not
undercapitalized to justify piercing the corporate veil because Plaintiff fails to allege that
Defendant was inadequately capitalized for the reasonable risks of its corporate
undertaking. At the time of Plaintiff’s injury, although Defendant was not subscribed to
West Virginia Worker’s Compensation Fund, it was subscribed to the Maryland Injured
Workers’ Insurance Fund (“IWIF”) to cover injured employees. Through Defendant’s
subscription to IWIF and pursuant to the Global Settlement Agreement, IWIF has paid
Plaintiff’s medical expenses and lost wages. Def.’s Resp., p. 5. Plaintiff also admitted
that IWIF continues to pay all his medical expenses and lost wages. Id. Therefore,
although Defendant was not subscribed to the West Virginia Worker’s Compensation
Fund, Defendant was insured under Maryland’s equivalent to worker’s compensation,
IWIF.
Next, Plaintiff argues that Defendant may not have proper insurance coverage to
protect employees injured on the job in West Virginia. The Plaintiff does not allege facts
indicating that it is plausible that Defendant is undercapitalized. Instead, in the
proposed Amended Complaint, Plaintiff simply asserts that Defendant is
undercapitalized because it did not purchase “various insurance coverages for
Defendant Remac.” Pl.’s. Mem., p. 23. However, Defendant argues that it has two
insurance coverage policies, both with limits of $1,000,000. Def.’s Resp., p. 6. Plaintiff
fails to indicate what other “various insurance coverages” Defendant failed to purchase
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that has now resulted in the corporation being undercapitalized. Plaintiff also fails to
allege how Defendant’s IWIF coverage as well as its other insurance coverage is
inadequate. Therefore, Plaintiff has failed to allege sufficient facts to state a claim for
piercing the corporate veil to “disregard [the defendants’] separate corporate structure”
and hold Soresi personally liable. S. Elec. Supply Co., 320 S.2d at 522 (citation
omitted).
In addition to Plaintiff’s failure to properly allege a lack of corporate formalities
and undercapitalization, Plaintiff has not made any allegation that Soresi commingled
his personal funds or assets with Defendant’s funds, that there was a diversion of
Defendant’s funds or assets to noncorporate uses, or that Soresi represented to
persons outside the corporation that he is personally liable for the debts or other
obligations of the corporation. See Laya, 352 S.E.2d at 98-99 (listing other factors for
Court to consider in piercing the veil analysis). Plaintiff has attempted to allege only two
factors to justify piercing the corporate veil, but Plaintiff’s allegations are either legal
conclusions or are merely possible rather than plausible. For the above reasons, it is
obvious on the face of the proposed amendment that Plaintiff has failed to meet the
standard for piercing the corporate veil in a tort case. Accordingly, the proposed
amendment is futile and is hereby DENIED.
B. Prejudice
Defendant has also asserted that Plaintiff’s motion to amend should be denied on
the ground that the amendment is prejudicial.
In determining whether an amendment is prejudicial, the court looks to the nature

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and timing of the amendment. Davis, 615 F.2d at 613. An example of a prejudicial
amendment is one that “raises a new legal theory that would require the gathering and
analysis of facts not already considered by the [defendant, and] is offered shortly before
or during trial.” Johnson, 785 F.2d at 509. By contrast, an amendment is not prejudicial
if it “merely adds an additional theory of recovery to the facts already pled and is offered
before any discovery has occurred.” Davis, 615 F.2d at 613 (emphasis added).
Friend attempts to amend his Complaint well over eight months after the matter
was removed to this Court. During those months, the parties have engaged in
discovery, evidentiary hearings on discovery motions, and filed dispositive motions.
Although trial is not until August 2013, a significant amount of discovery has already
occurred and some major deadlines have passed. Friend has delayed eight months in
filing this amendment. In addition to the eight month delay, Friend’s amendment would
prejudice the Defendant as it raises an entirely new legal theory that would require the
gathering and analysis of facts not already considered by the Defendant, as Friend’s
amendment focuses on piercing Remac’s corporate veil to hold Soresi personally liable
for Friend’s injuries. See Small v. Ramsey, Civil Action No. 1:10-CV-121, 2012 WL
405049, *3 (N.D.W. Va. 2012) (denying leave to amend because trial was only five
months away, plaintiff sought to add an entirely new counterclaim and party, and many
of the major deadlines had already passed in the case). Therefore, the combination of
the Plaintiff’s delay in filing the amendment as well as the prejudice the Defendant will
suffer by the amendment, the Court FINDS the amendment should also be denied
because of prejudice the Defendant would suffer as a result.

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VI. Conclusion
For the foregoing reasons, this Court hereby DENIES the Plaintiff’s Motion to
Amend his Complaint.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record
herein.
DATED: February 14, 2013

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