King v. Cardinal Health 411, Inc. et al
Filing
58
MEMORANDUM OPINION AND ORDER Granting Pla's Second #47 Motion to Amend, LIFTING THE STAY of Discovery And Scheduling Status And Scheduling Conference set for 12/27/2011 11:00 AM in Judge Stamp Chambers before Senior Judge Frederick P. Stamp Jr.. Signed by Senior Judge Frederick P. Stamp, Jr on 11/29/11. (mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
NICOLE KING,
Plaintiff,
v.
Civil Action No. 5:10CV112
(STAMP)
CARDINAL HEALTH 411, INC.
and TESS GREY,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S SECOND MOTION TO AMEND,
LIFTING THE STAY OF DISCOVERY AND
SCHEDULING STATUS AND SCHEDULING CONFERENCE
I.
Procedural History
The plaintiff, Nicole King (“King”), filed this civil action
in the Circuit Court of Ohio County, West Virginia against the
above-named defendants alleging that she was wrongfully terminated
from her job at Cardinal Health 411, Inc. (“Cardinal Health”).
Specifically, the plaintiff’s original complaint alleges that her
termination was based in whole or in part on discriminatory
motives, in violation of West Virginia Code Section 5-11-9 and West
Virginia public policy.1
The defendants filed a motion to dismiss
the plaintiff’s complaint in the Circuit Court of Ohio County,
which was denied on September 13, 2010 at a hearing before Judge
Ronald E. Wilson.
The plaintiff later filed an amended complaint,
which includes an allegation that her termination violated the
Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.
1
The
The plaintiff’s original complaint contains no reference to
the FMLA and no alleged violation of federal law.
defendants then filed a notice of removal in this Court based upon
28 U.S.C. § 1331 and 29 U.S.C. § 2617(a)(2).
On December 1, 2010,
the plaintiff filed a motion to remand, which this Court denied on
January 6, 2011, finding that the plain language on the face of the
plaintiff’s amended complaint presented a federal question.
Following the denial of the motion to remand, the plaintiff
filed a pleading titled “Notice of Plaintiff’s Voluntary Dismissal
of FMLA Claim, Motion to Allow the Filing of a Second Amended
Complaint, and Motion for Remand.”
On September 7, 2011, this
Court issued an opinion granting the plaintiff’s motion to allow
the filing of a second amended complaint and denying the motion for
remand. This Court made no ruling on the notice of the plaintiff’s
voluntary dismissal of the FMLA claim, finding that voluntary
dismissal pursuant to Rule 41 of the Federal Rules of Civil
Procedure
dismissal.
was
not
the
proper
vehicle
to
accomplish
partial
With regard to the motion to remand, this Court found
that the exercise of supplemental jurisdiction was appropriate, and
therefore denied the motion to remand.
Pursuant to this Court’s September 7, 2011 memorandum opinion
and order, the plaintiff filed a second amended complaint on
September 22, 2011.
FMLA.
This complaint contains no reference to the
Subsequently, the plaintiff filed a second motion to amend
the complaint.
In support of this motion, the plaintiff states
that since it has been made clear that the case will not be
remanded to state court, she seeks to add a claim under the FMLA in
2
order to assert all of her available claims.
On October 6, 2011,
the defendants filed a motion for a stay of discovery pending a
ruling on the plaintiff’s motion for leave to file a third amended
complaint.
This Court granted that motion on November 16, 2011.
Thus, discovery in this action is currently stayed.
On October 10, 2011, the defendants filed a response to the
second motion to amend in which they argue that the addition of an
FMLA claim is inappropriate, unfair, unduly prejudicial, and in bad
faith because the plaintiff has repeatedly stated her strategic
decision to abandon it.
The plaintiff then filed a reply in
support of her second motion to amend, in which she counters that
the amendment would not be prejudicial to the defendants, that she
is not filing the amendment in bad faith, and that the amendment is
not futile.
This motion is now fully briefed and pending before
this Court.
Having reviewed the parties’ pleadings and the
relevant law, this Court finds that the plaintiff’s second motion
to amend must be granted.
II.
Facts2
King began working for Cardinal Health in April 2007.
On
March 14, 2010, King suffered complications from her pregnancy and
was
taken
to
Wheeling
Hospital’s
Emergency
Room.
Upon
her
discharge from Wheeling Hospital on March 14, 2010, King obtained
a doctor’s slip prohibiting her from working that day.
2
King then
For the purposes of this opinion, this Court adopts the facts
as set forth by the plaintiff in her amended complaint.
3
called her supervisor, Tess Grey (“Grey”), and advised her of her
recent hospital visit and her inability to attend work that day.
King’s fiancé, Patrick MacFarland, hand-delivered her doctor’s
excuse to Grey.
When King called Grey on the morning of March 15,
2010, Grey fired her.
The plaintiff filed complaints with the
corporate human resources department, Craig Baranski, the director
of Cardinal Health’s Wheeling facility, and Cardinal Health’s
Ethics Board, but she received no response.
plaintiff
filed
an
incident
report
Additionally, the
regarding
her
wrongful
termination via Cardinal Health’s Incident Reporting System, but
she received no response.
III.
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.”
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]
4
futility of 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.
Discussion
In her second motion to amend, the plaintiff states that she
wishes to amend her complaint in order to expressly assert a claim
under the FMLA.
Although the plaintiff contends that she did not
originally assert or intend to assert a claim under the FMLA, now
that this Court has denied her motions for remand, the plaintiff
seeks to include an FMLA claim.
In support of this motion, the
plaintiff first argues that the amendment would not be prejudicial
to the defendants because it is timely filed and because the
defendants have been aware of a potential FMLA claim since filing
their notice of removal.
Further, the plaintiff asserts that
sufficient time exists in discovery to address this claim. Second,
the plaintiff states that the amendment is not being asserted in
bad faith. Finally, the plaintiff argues that the amendment is not
futile because she is able to articulate a legitimate FMLA claim.
In their response in opposition to the second motion to amend,
the defendants argue that because the plaintiff has consistently
represented to the Court that she did not, and never intended to,
assert a federal claim against the defendants, she cannot now
convert this litigation into an FMLA case.
According to the
defendants, the plaintiff’s request for leave to add an FMLA claim
5
is inappropriate, unfair, unduly prejudicial, and in bad faith.
The
defendants
further
argue
that
the
principle
of
judicial
estoppel prohibits the plaintiff from asserting this claim after
she has repeatedly stated her strategic decision to abandon it.
Moreover, the defendants contend that the proposed claim would be
futile since the plaintiff has contractually waived and released
any FMLA claim she might have against the defendants.
While this Court acknowledges the confusion caused by the
plaintiff’s on-again, off-again FMLA claim throughout the course of
this litigation, this Court finds that the addition of an FMLA
claim
at
this
defendants.
time
would
not
be
unduly
prejudicial
to
the
Despite the fact that the plaintiff did not initially
intend to file an FMLA claim and took steps to have the matter
remanded to the state court consistent with that position, the
plaintiff should be able to take advantage of all of her available
remedies by pursuing an FMLA claim now that this Court has retained
jurisdiction over the case. The procedural history of this case is
certainly unique, but there has not been any undue surprise,
prejudice, bad faith or futility in the assertion of an FMLA claim.
In fact, the defendants acknowledged the existence of a cause of
action under the FMLA in their notice of removal.
Defs.’ Notice
of Removal ¶ 2. Although the plaintiff later removed that claim in
the second amended complaint, its reappearance now is not unduly
prejudicial to the defendants.
Thus, leave to amend should be
granted pursuant to Rule 15(a)(2).
6
Fed. R. Civ. P. 15(a)(2) (“The
court
should
freely
give
leave
[to
amend]
when
justice
so
requires.”).
The defendants argue that the addition of an FMLA claim would
expand the scope of this case drastically by raising issues related
to the plaintiff’s absences during a previous pregnancy.
This
Court finds that although the addition of the FMLA claim might
require the defendants to conduct some additional discovery, this
does not amount to undue prejudice.
repeatedly
argued
in
their
Because the defendants have
briefs
opposing
remand
that
the
plaintiff has asserted an FMLA claim, they cannot now properly
argue
that
the
addition
of
an
FMLA
claim
is
unexpected
and
prejudicial.
The defendants also contend that the plaintiff should be
barred from pursuing an FMLA claim under the principle of judicial
estoppel.
“Judicial estoppel is an equitable doctrine that exists
to prevent litigants from playing ‘fast and loose’ with the courts
- to deter improper manipulation of the judiciary.”
Folio v. City
of Clarksburg, 134 F.3d 1211, 1217 (4th Cir. 1998) (quoting John S.
Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 28-29 (4th Cir.
1995)).
Judicial estoppel applies when:
(1) the party to be estopped must be advancing an
assertion that is inconsistent with a position taken
during previous litigation; (2) the position must be one
of fact, rather than law or legal theory; (3) the prior
position must have been accepted by the court in the
first proceeding; and (4) the party to be estopped must
have acted intentionally, not inadvertently.
7
Havird Oil Co., Inc. v. Marathon Oil Co., Inc., 149 F.3d 283, 292
(4th Cir. 1998); see Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir.
1996). However, “it is rare for judicial estoppel to be applied to
prevent a party from changing legal theories.”
Riggs v. West
Virginia Univ. Hospitals, Inc., 656 S.E.2d 91, 118 (W. Va. 2007).
“Judicial estoppel does not bar a party from contradicting itself,
the doctrine bars contradicting a court’s determination that was
based on that party’s position.” West Virginia Dep’t of Transp. v.
Robertson, 618 S.E.2d 506, 513 n.18 (W. Va. 2005).
This Court finds that judicial estoppel, which is to be
applied sparingly, is not applicable in this case.
McCall, 612 S.E.2d 453, 456 (S.C. 2005).
specifically
assert
an
FMLA
claim
that
State v.
The plaintiff seeks to
the
defendants
have
contended, and this Court has previously found, to have been a part
of this case during most of its tenure in this Court.
The addition
of an FMLA claim would not be an inconsistent statement of fact,
but would instead be an additional cause of action based upon the
facts as previously asserted. See Folio, 134 F.3d 1217-18 (holding
that judicial estoppel applies only to the making of inconsistent
statements of fact).
Finally, the defendants argue that the plaintiff’s request to
add an FMLA claim should be denied because the plaintiff has
contractually released Cardinal Health from any FMLA claim.
The
defendants set forth that in a second class action lawsuit between
8
the parties, (“King II”)3, the plaintiff and Cardinal Health signed
a
settlement
agreement
in
which
the
plaintiff,
as
a
class
representative, agreed to:
irrevocably
and
unconditionally
release,
forever
discharge, and covenant not to sue, or bring any other
legal action against Defendant with respect to any and
all claims and causes of action of any nature, both past
and present, known and unknown, foreseen and unforeseen,
which either Plaintiff has or which could be asserted on
either Plaintiff’s behalf by any other person or entity,
resulting from or related to any act or omission of any
kind, excluding only those claims presently asserted by
Plaintiff King in the case styled as Nicole King v.
Cardinal Health 411, Inc., Case No. 5:10-CV-112, pending
in the United States District Court for the Northern
District of West Virginia.
Defs.’ Resp. to Second Mot. to Amend Ex. 1 at 8.
The defendants
argue that the scope of the release described above includes a
waiver of any FMLA claim.
In response, the plaintiff first notes that the parties have
stipulated that the terms of settlement of King II “shall not be
admissible or mentioned in any matter in this case, implicitly or
expressly, for any reason at any time.”4
Pl.’s Reply Ex. 1 at 1.
While it appears that the defendants have failed to comply with the
terms of the proposed stipulation, even if reference to the King II
settlement were admissible in this case, this Court finds that the
defendants’
waiver
argument
fails.
Importantly,
the
claims
3
The second case is styled as Nicole King, et al. v. Cardinal
Health 411, Inc., Case No. 10-C-197.
4
The proposed stipulation of inadmissibility has been signed
by counsel for both parties, but it has not been approved by this
Court.
9
asserted by the plaintiff in this case were excluded from the
general release.
On August 8, 2011, when the settlement agreement
in King II was signed by counsel for both parties, this Court had
already determined that the plaintiff’s complaint contained an FMLA
claim. The second amended complaint, which removed the FMLA claim,
had not yet been filed.5
Thus, the general release contained in
the proposed class action settlement agreement does not support the
defendants’ position that the motion to amend should be denied.
V.
Conclusion
For the reasons stated above, the plaintiff’s second motion to
amend is GRANTED.
The plaintiff is DIRECTED to file a signed copy
of the third amended complaint attached to the second motion to
amend.
Pursuant to this Court’s November 16, 2011 order, it is
ORDERED that the stay of discovery be LIFTED.
It is further
ORDERED that the parties appear by counsel for a status and
scheduling conference on December 27, 2011 at 11:00 a.m. in the
chambers of Judge Frederick P. Stamp, Jr., Federal Building,
Twelfth and Chapline Streets, Wheeling, West Virginia 26003. Prior
to the status and scheduling conference, the parties shall meet and
confer to discuss a new discovery deadline.
IT IS SO ORDERED.
5
This Court entered a memorandum opinion and order denying the
plaintiff’s motion to remand on January 6, 2011, holding that the
plain language on the face of the plaintiff’s amended complaint
presented a federal question: whether the termination of the
plaintiff’s employment violated the FMLA.
The second amended
complaint was filed on September 22, 2011.
10
The Clerk is directed to transmit a copy of this order to
counsel of record herein.
DATED:
November 29, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?