CSX Transportation, Inc. v. Gilkison et al
Filing
850
MEMORANDUM OPINION AND ORDER Granting Pla's 841 Motion for Leave to File Third Amended Complaint. Pla is to file and served the third amended complaint. Signed by Senior Judge Frederick P. Stamp, Jr on 10/18/11. (mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CSX TRANSPORTATION, INC.,
Plaintiff,
v.
Civil Action No. 5:05CV202
(STAMP)
ROBERT V. GILKISON,
PEIRCE, RAIMOND & COULTER, P.C.,
a Pennsylvania professional corporation
a/k/a ROBERT PEIRCE & ASSOCIATES, P.C.,
a Pennsylvania professional corporation,
ROBERT PEIRCE, JR., LOUIS A. RAIMOND,
MARK T. COULTER and RAY HARRON, M.D.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION FOR LEAVE
TO FILE THIRD AMENDED COMPLAINT1
I.
Background2
The plaintiff commenced the above-styled civil action by
filing a complaint in this Court on December 22, 2005.
The
plaintiff later filed an amended complaint on July 5, 2007. On May
2, 2008, after this Court granted the defendants’ motion to dismiss
various portions of the amended complaint, the plaintiff sought
1
This Court notes that although the plaintiff has styled its
pleading as a motion for leave to file a third amended complaint,
this will actually be only the second amended complaint to be filed
in this case, as this Court denied the plaintiff’s motion for leave
to file a second amended complaint on November 3, 2008 (ECF No.
284).
However, to maintain consistency in the pleadings, this
Court will continue to refer to the most recent proposed amended
complaint as the third amended complaint.
2
For the purpose of resolving the pending motion, this Court
believes that the following abbreviated summary of this case is
sufficient.
leave to file a second amended complaint.
This Court denied the
plaintiff’s motion for leave to file a second amended complaint on
the grounds that such amendment would be futile and would unduly
prejudice the defendants by extending discovery when it is not
necessary.
Thereafter, the case continued forward to trial and
judgment on the plaintiff’s May/Jayne fraud allegations and to
summary judgment for the defendants on the plaintiff’s remaining
claims.
Following the entry of this Court’s judgment in favor of the
defendants regarding the May/Jayne fraud, the plaintiff appealed to
the United States Court of Appeals for the Fourth Circuit.
In its
judgment of December 30, 2010, the Fourth Circuit upheld the jury’s
verdict as to the May/Jayne allegations but vacated the dismissal
of Counts One through Four of the amended complaint, reversed the
summary judgment as to the Baylor claims, and held that the
plaintiff should have been permitted to file the second amended
complaint.
On February 2, 2011, the Fourth Circuit issued a
mandate compelling further proceedings consistent with its opinion.
Pursuant to this mandate, this Court held a status and
scheduling conference on March 7, 2011.
At that hearing, the
parties discussed the plaintiff’s proposal that a third amended
complaint be filed in order to reflect the changes in the case and
to offer a concise summary of the remaining claims.
This Court
instructed the plaintiff to prepare a proposed third amended
2
complaint and provide a copy to the defendants for their review
prior to its filing.
If the parties agreed to the changes in the
proposed third amended complaint, they were directed to submit it
to the Court by stipulation or agreed order.
During the hearing,
this Court also ordered that discovery in this case be stayed
pending the resolution of the defendants’ petition for certiorari
to the United States Supreme Court.3
On June 17, 2011, the plaintiff sent a draft of the third
amended
complaint
to
the
defendants’
counsel
for
review.
Defendants’ counsel responded on July 1, 2011, informing the
plaintiff
that
they
objected
to
the
proposed
third
amended
complaint on the basis that it contained new allegations.
On July
14, 2011, the plaintiff filed a motion for leave to file a third
amended complaint. In support of this motion, the plaintiff states
that the third amended complaint adds no new legal theories, but
instead only removes the already adjudicated May/Jayne allegations,
updates the case caption, and updates the factual allegations. The
plaintiff further argues: (1) under Rule 15 of the Federal Rules of
Civil Procedure, leave to amend should be freely granted; (2) the
defendants would not be prejudiced by the filing of the third
amended complaint; and (3) it is not acting in bad faith.
3
On October 3, 2011 and October 4, 2011, the parties informed
this Court via facsimile letters that the United States Supreme
Court denied the defendants’ petition for certiorari.
3
Defendants Robert N. Peirce, Jr., Louis A. Raimond, and Mark
T. Coulter (“lawyer defendants”) filed a response in opposition to
the motion for leave to file a third amended complaint on July 28,
2011.4
According to the lawyer defendants, the plaintiff added
new, irrelevant, and prejudicial allegations of fraud to the
proposed third amended complaint. The lawyer defendants argue that
the plaintiff should be prohibited from adding certain paragraphs
to the third amended complaint.
On August 4, 2011, the plaintiff filed a reply in support of
its motion for leave to file a third amended complaint, in which it
argues that the lawyer defendants failed to set forth a recognized
objection to a motion made pursuant to Rule 15(a).
The plaintiff
contends that the lawyer defendants have not met their burden of
showing that certain allegations contained in the third amended
complaint should be stricken.
For the reasons set forth below,
this Court grants the plaintiff’s motion for leave to file a third
amended complaint.
II.
Federal
Rule
of
Applicable Law
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
4
On July 28, 2011, the lawyer defendants also filed a motion
for permission to file counterclaims, which is also currently
pending before this Court.
4
cases, it may only do so “with the opposing party’s written consent
or the court’s leave.
justice so requires.”
Rule
15(a)
The court should freely give leave when
Fed. R. Civ. P. 15(a)(2).
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).
III.
Discussion
The plaintiff seeks to amend its complaint in order to remove
the allegations related to the already-adjudicated May/Jayne fraud
and to update the case caption.
According to the plaintiff, these
changes are simply “administrative housecleaning tasks.”
Mot. for Leave to File Third Am. Compl. 4.
Pl.’s
In the third amended
complaint, the plaintiff also seeks to add the same eleven asbestos
claims
that
complaint.
were
originally
presented
in
the
second
amended
The plaintiff contends that the addition of these
claims to the governing complaint has already been addressed by the
Fourth Circuit and found to be non-prejudicial.
5
The plaintiff
further states that in the third amended complaint, it updated the
factual allegations regarding those eleven claims to reflect events
that have taken place since the drafting of the second amended
complaint, particularly, a July 11, 2009 order in a West Virginia
state court dismissing several of the claims in a case in that
court.
Beyond
the
addition
of
the
eleven
asbestos
claims,
the
plaintiff also seeks to add certain factual allegations, all of
which concern events that occurred either roughly contemporaneously
with or after the filing of the amended complaint.
For example,
the plaintiff included in the third amended complaint paragraphs
discussing the civil action instituted by the federal government
against Robert Gilkison and his wife, as well as events in the West
Virginia state court asbestos actions.
The plaintiff states that
none of these factual allegations alter the gravamen of the
complaint.
Instead, they serve only to update the complaint to
account for the time that passed while the May/Jayne portion of the
case and the appeal were litigated.
In their response in opposition to the motion for leave to
file a third amended complaint, the lawyer defendants object to
portions of the third amended complaint.
Specifically, the lawyer
defendants argue that the plaintiff should be prohibited from
adding the allegations contained in paragraphs 27-31, 72-73, 79,
and 136-142.
The lawyer defendants contend that the objected-to
6
allegations are “immaterial, impertinent, or scandalous,” and that
they violate Rule 12(f) of the Federal Rules of Civil Procedure and
are therefore, futile.
Opp’n of Defs. to Mot. for Leave to File
Third Am. Compl. 5.
After a review of the record, this Court concludes that the
plaintiff has not exhibited any undue delay, bad faith, or dilatory
motive.
Moreover, any prejudice to the defendants is not so
significant as to prevent this Court from allowing the amendments,
and this Court cannot conclude at this point that the plaintiff’s
amendments would be futile, as they relate back to the original
complaint and serve to update the complaint by removing those
issues already adjudicated.
In fact, certain paragraphs of the
proposed third amended complaint that were objected to by the
lawyer defendants are not newly added allegations – they are the
same allegations that were contained in the first and second
amended complaints.5
In general, the lawyer defendants have not satisfied their
“sizable burden” of showing that any portion of the proposed third
amended complaint should be stricken.
See Clark v. Milam, 152
F.R.D. 66, 70 (S.D. W. Va. 1993) (“A motion to strike is a drastic
5
Paragraph 27 of the proposed third amended complaint is the
same allegation that was previously contained in paragraph 29 of
the first and second amended complaints. Paragraphs 72 and 73 of
the proposed third amended complaint, which contain allegations
regarding Dr. Harron’s medical misconduct in the silica litigation,
also previously appeared in both the first and second amended
complaints.
7
remedy
which
granted.”).
objections
is
disfavored
This
to
Court
the
motion
by
for
courts
finds
also
the
the
leave
to
and
infrequently
lawyer
defendants’
file
a
third
amended
complaint to be more relevant to a motion to dismiss or a motion
for
summary
judgment.
Accordingly,
this
Court
grants
the
plaintiff’s motion for leave to file a third amended complaint.
IV.
Conclusion
For the reasons set forth above, the plaintiff’s motion for
leave to file a third amended complaint is hereby GRANTED.
The
plaintiff is DIRECTED to file a signed copy of the third amended
complaint, which was attached to the plaintiff’s motion for leave
to file a third amended complaint, ECF No. 841, Exhibit 1.
The
plaintiff is further DIRECTED to serve the third amended complaint
on the defendants.
The parties served with the third amended
complaint shall make any defenses pursuant to Federal Rule of Civil
Procedure 12 and any counterclaims or cross-claims pursuant to
Federal Rule of Civil Procedure 13.
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 18, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
8
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