Hughes et al v. Consolidation Coal Company

Filing 11

MEMORANDUM OPINION AND ORDER granting 10 plaintiff's Motion for Leave to file an Amended Complaint. Clerk is directed to file the amended complaint. Signed by Senior Judge Frederick P. Stamp, Jr on 8/17/11. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL HUGHES, AMY HUGHES,
KEVIN KIMPLE and CARRIE KIMPLE,
Plaintiffs,
v.

Civil Action No. 5:11CV43
(STAMP)

CONSOLIDATION COAL COMPANY,
a corporation and
RESERVE COAL PROPERTIES COMPANY,
a corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFFS’ MOTION FOR LEAVE
TO FILE AN AMENDED COMPLAINT
I.

Background

The plaintiffs, Michael Hughes, Amy Hughes, Kevin Kimple, and
Carrie Kimple, filed a complaint alleging damage to the plaintiffs’
residences

because

properties.

of

subsidence

within

and

underlying

their

The plaintiffs have now filed a motion for leave to

file an amended complaint to add an additional defendant.
current defendant in the case did not file a response.

The

For the

reasons set forth below, the plaintiffs’ motion for leave to amend
complaint their complaint is granted.
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.”
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 plaintiffs seek to amend their complaint to add Reserve
Coal Properties Company as a defendant in this matter.

The

plaintiffs state that Reserve Coal Properties Company, a company
affiliated with the defendant, is likely the current owner of the
coal within and under the plaintiffs’ property.
does

not

constitute

defendants.

an

unfair

surprise

or

This amendment

prejudice

to

the

Further, the amended complaint is not futile as it

relates back to the original complaint. Consolidation Coal Company
has not responded to the plaintiffs’ motion.
After a review of the record, this Court concludes that the
plaintiffs have not exhibited any undue delay, bad faith, or
dilatory motive.

Moreover, the prejudice to the defendants is not

2

significant as to prevent this Court from allowing the amendment,
and this Court cannot conclude that the plaintiffs’ amendment would
be

futile,

as

it

relates

back

to

the

original

complaint.

Accordingly, this Court grants the plaintiffs’ motion for leave to
file an amended complaint to add Reserve Coal Properties Company as
a defendant in this civil action.
IV.

Conclusion

For the reasons set forth above, the plaintiffs’ motion for
leave to amend complaint is hereby GRANTED.
to

file

the

amended

complaint,

which

The Clerk is DIRECTED
was

attached

to

the

plaintiffs’ motion for leave to file an amended complaint, Docket
No. 10. The plaintiffs are DIRECTED to serve the amended complaint
on the defendants.

The parties served with the 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:

August 17, 2011

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

3