CSX Transportation, Inc. v. Gilkison et al
Filing
851
MEMONANDUM OPINION AND ORDER Granting Dfts' 842 Motion For Permission To File Counterclaims And Have The Counterclaims Deemed Filed Nunc Pro Tunc. Clerk is DIRECTED to file as of 7/28/11. Signed by Senior Judge Frederick P. Stamp, Jr on 10/19/11. (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 DEFENDANTS’ MOTION FOR PERMISSION
TO FILE COUNTERCLAIMS AND HAVE THE
COUNTERCLAIMS DEEMED FILED NUNC PRO TUNC1
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
leave to file a second amended complaint.
This Court denied the
plaintiff’s motion for leave to file a second amended complaint on
1
“Nunc pro tunc.” Having retroactive legal effect through a
court’s inherent power.
Black’s Law Dictionary 1174 (9th ed.
2009).
2
For the purpose of resolving the pending motion, this Court
believes that the following abbreviated summary of this case is
sufficient.
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
complaint and provide a copy to the defendants for their review
prior to its filing.
If the parties agreed to the changes in the
2
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 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.
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.
According to the lawyer defendants,
the plaintiff added new, irrelevant, and prejudicial allegations of
fraud to the proposed third amended complaint.4
Also on July 28, 2011, the lawyer defendants filed a motion
for permission to file counterclaims and have the counterclaims
deemed filed nunc pro tunc as of that date.
In support of their
motion for permission to file counterclaims, the defendants state
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.
4
This Court has issued a memorandum opinion and order granting
the plaintiff’s motion for leave to file a third amended complaint.
3
that they seek to avoid any potential statute of limitations
problems by filing their counterclaims now.
On August 10, 2011,
the plaintiff filed a response to the motion for permission to file
counterclaims, in which it states that it does not object to this
Court deeming the proposed counterclaims filed as of July 28, 2011.
For the reasons set forth below, this Court grants the defendants’
motion
for
permission
to
file
counterclaims
and
have
the
counterclaims deemed filed nunc pro tunc as of July 28, 2011.
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
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).
This broad grant
of authority applies with equal force to counterclaims.
See Lone
Star Steakhouse & Saloon v. Alpha of Va., Inc., 43 F.3d 922, 940
(4th
Cir.
1995)
(“Rule
13(f)
of
the
Federal
Rules
of
Civil
Procedure, which permits amendment of the pleadings to add an
omitted counterclaim, is interpreted together with Rule 15(a) on
amendment of pleadings.”).
Rule
15(a)
grants
the
district
court
broad
discretion
concerning motions to amend pleadings, and leave should be granted
4
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.
In
support
of
their
Discussion
motion
for
permission
to
file
counterclaims and have the counterclaims deemed filed nunc pro
tunc, the lawyer defendants state that they seek to avoid any
potential argument that their counterclaims are untimely.
lawyer
defendants
highlight
the
fact
that
the
statute
The
of
limitations on the fraud claims asserted in the counterclaims is
two years.
See W. Va. Code § 55-2-12.
According to the lawyer
defendants, if they wait to file their counterclaims in the due
course of this litigation, they risk the possibility that their
counterclaims will be filed more than two years after August 28,
2009.
The lawyer defendants further argue that the counterclaims
are not futile or the product of bad faith or a dilatory motive.
In response, the plaintiff states that it does not object to
the Court deeming the lawyer defendants’ proposed counterclaims
filed
as
of
July
28,
2011
for
5
purposes
of
the
statute
of
limitations.
However, the plaintiff does expressly reserve its
right to assert all available defenses to the lawyer defendants’
proposed counterclaims.
The plaintiff also responds to the lawyer
defendants’ accusations that it deliberately delayed the submission
of the proposed third amended complaint by arguing that this claim
is unfounded.
Because the plaintiff does not object and because the lawyer
defendants have not exhibited any undue delay, bad faith, or
dilatory motive, this Court concludes that the lawyer defendants’
motion
for
permission
to
file
counterclaims
and
have
the
counterclaims deemed filed nunc pro tunc as of July 28, 2011 should
be granted.
Since this Court has granted the plaintiff’s motion
for leave to file a third amended complaint, this Court considers
the lawyer defendants’ counterclaims to be filed in response to the
third amended complaint.
IV.
Conclusion
For the reasons set forth above, the defendants’ motion for
permission to file counterclaims and have the counterclaims deemed
filed nunc pro tunc as of July 28, 2011 is hereby GRANTED.
The
Clerk is DIRECTED to file the lawyer defendants’ counterclaims,
previously submitted as an attachment to the motion for permission
to file counterclaims (Doc. 842, Ex. 1), in response to the third
amended complaint, a signed copy of which is to be filed by the
6
plaintiff. These counterclaims shall be deemed filed nunc pro tunc
as of July 28, 2011.
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 19, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
7
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