Seum v. McClure Staffing LLC et al
Filing
31
MEMORANDUM OPINION and ORDER: Granting 25 Motion for Leave to File First Amended Complaint; Clerk directed to file First Amended Complaint; defs. to file timely responsive pleadings only to 1st Amended Complaint. Signed by Senior Judge Frederick P. Stamp, Jr on 1/31/12. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAVID S. SEUM,
Plaintiff,
v.
Civil Action No. 5:11CV79
(STAMP)
McCLURE STAFFING LLC,
a West Virginia corporation,
CYNTHIA JOHNSON and
VIRGINIA WILLIAMS,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE
TO FILE FIRST AMENDED COMPLAINT
I.
Background
The plaintiff, David S. Seum, filed this civil action in this
Court
on
June
7,
2011,
citing
pursuant to 28 U.S.C. § 1331.
federal
question
jurisdiction
The plaintiff’s complaint raises a
claim for violations of the Fair Labor Standards Act, 29 U.S.C.
§ 201 et. seq. (“FLSA”); a claim for violation of the West Virginia
Wage Payment and Collection Act (“WPCA”), W. Va. Code § 21-5-3(a);
a claim for disability discrimination and unlawful discharge under
both state and federal law; a claim based upon the tort of outrage;
a claim for retaliation under FLSA, and for malicious prosecution;
and a claim for the tort of conversion.
result
of
the
plaintiff’s
All of the claims are the
employment
and
termination
from
employment with McClure Staffing LLC, as well as of incidents
surrounding
that
employment
and
the
plaintiff’s
ultimate
termination.
In response to the plaintiff’s complaint, defendants Cynthia
Johnson (“Johnson”) and Virginia Williams (“Williams”) filed joint
motions to dismiss under Fed. R. Civ. P. 12(b)(5) and (6), and a
motion for a more definite statement under Fed. R. Civ. P. 12(e).
Defendant McClure Staffing also filed a motion to dismiss pursuant
to Fed R. Civ. P. 12(b)(5). This Court denied those motions by
memorandum opinion and order entered January 27, 2012.
The plaintiff has now filed a motion for leave to file an
amended complaint, arguing that he desires to supplement and
develop his claim for malicious prosecution and add a claim for
defamation now that all criminal charges filed against him which
are the basis of these claims have been dismissed by the State of
West Virginia.
The defendants did not respond to the plaintiff’s
request to file an supplemental and amended complaint.
As this
motion is unopposed and is timely filed, this Court will grant the
plaintiff’s motion for leave to file an amended complaint.
II.
Discussion
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides
that, after a defendant files a responsive pleading, and either
leave of court or permission of the opposing party is necessary to
amend a complaint, requests for such leave should nonetheless be
granted “freely . . . when justice so requires.” The Supreme Court
2
has held that, “in the absence of any apparent or declared reason
-- such as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendment,
futility of amendment, etc. -- the leave sought should, as the
rules require, be ‘freely given.’”
Foman v. Davis, 371 U.S. 178,
182 (1962).
Further, Fed. R. Civ. P. 15(d) permits this Court to, on
motion, grant leave for a party to “serve a supplemental pleading
setting out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented.”
The plaintiff request to amend, while only brought under Fed.
R. Civ. P. 15(a)(2), actually requests leave both to amend and to
supplement the plaintiff’s original complaint. The plaintiff seeks
to supplement his original claim for malicious prosecution based
upon the dismissal of criminal charges against him after the time
of the original filing of his complaint. He further seeks to amend
his complaint by adding a claim for defamation.
Both of these
requests will be granted. This is the plaintiff’s first request to
amend his complaint, and the defendants have not offered opposition
or argument against granting leave to amend.
Additionally, the
plaintiff has offered justification as to the reasons why he did
not include the allegations that he now seeks to add upon initial
filing of his complaint, as the dismissal of the criminal charges
against him had not yet occurred when he filed his original
3
complaint. It also does not appear to this Court that granting the
plaintiff leave to amend and supplement in this situation would
prejudice the defendants, nor that the amendments sought are futile
or brought in bad faith.
Finally, the motion is timely, as is
evidenced by the October 17, 2011 scheduling order in this case,
which allows for amended pleadings to be filed until April 27,
2012. Accordingly, pursuant to Fed. R. Civ. P. 15(a)(2) and 15(d),
this Court hereby grants leave to the plaintiff to file an amended
and supplemental complaint.
III.
Conclusion
For the reasons stated above, the plaintiff’s motion for leave
to file first amended complaint (ECF No. 25) is GRANTED.
The
defendants are directed to file timely responsive pleadings to only
the first amended/supplemental complaint as set forth in Fed. R.
Civ. P. 15(a)(3).
The clerk is DIRECTED to file the plaintiff’s
first amended complaint, which is attached to the motion for leave
to file first amended complaint.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
January 31, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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