Nester v. Hampton Inn Princeton, et al

Filing 39

MEMORANDUM OPINION AND ORDER granting Plaintiff's #21 MOTION for Leave to File Amended Complaint. The Clerk is directed to file the amended complaint (attached to plaintiff's reply, Doc. No. 26 at 14-22). Signed by Judge David A. Faber on 9/26/2013. (cc: counsel of record) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ANDREA NESTER,
Plaintiff,
v.

CIVIL ACTION NO. 1:13-03336

THE HAMPTON INN PRINCETON, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion for leave to
file an amended complaint.

(Doc. No. 21).

For the reasons that

follow, the motion is granted.
Factual and Procedural Background
On February 1, 2013, plaintiff filed the instant suit in
the Circuit Court of Mercer County, West Virginia, alleging
several claims against defendants, each related to events
surrounding her pregnancy and employment termination.
generally (Doc. No. 1-2).
defendants.

See

The complaint named a total of five

The first three defendants are business entities -

The Hampton Inn Princeton, SWV Hotel Limited Partnership, and
VIM, Inc.

(Doc. No. 1-2, at 1).

The last two defendants are

individual defendants, both of whom are sued in their individual
capacities as well as their capacities as agents of the
corporate defendants.

Id.

Regarding the individual defendants,

and at all times relevant to the instant motion, Clarence Kerr,
1

Jr. was the President of each of the corporate defendants.
(Doc. No. 1-2, at ¶ 11); (Doc. No. 3, at ¶ 11).

Similarly,

Melissa Dye was, at all times relevant to the instant motion,
general manager of the Hampton Inn Princeton.

(Doc. No. 1-2, at

¶ 11); (Doc. No. 3, at ¶ 11).
On February 22, 2013, defendants removed the case to this
court, alleging federal question jurisdiction pursuant to 28
U.S.C. § 1331, based on the complaint’s allegations of two
distinct federal causes of action, namely counts under the
Family and Medical Leave Act and Title VII of the Civil Rights
Act.

(Doc. No. 1 at ¶ 5).

On March 15, 2013, Defendants filed

a motion to dismiss, pursuant to Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure, with an accompanying
memorandum of law.

(Doc. Nos. 5, 6).

After plaintiff’s

response and defendants’ reply, this court granted the motion in
part and denied it in part.

(Doc. No. 16).

On July 11, 2013, plaintiff filed the instant motion for
leave to file an amended complaint.

(Doc. No. 21).

The initial

proposed amended complaint was attached as Exhibit A to the
motion.

(Doc. No. 21-1).

24, 2013.

(Doc. No. 23).

Defendants filed a response on July
This response elicited a reply from

plaintiff and a supplement to plaintiff’s reply.
31).

(Doc. Nos. 26,

Apparently moved by defendants’ response, plaintiff also

attached a revised proposed amended complaint to her reply.
2

(Doc. No. 26 at 14-22).1

Critical to the disposition of this

motion, plaintiff sought leave to amend after the May 22, 2013
Scheduling Order deadline to amend pleadings.

(Doc. No. 11).

Substance of the Proposed Amendment
On April 23, 2013, the defendants produced documents in
response to plaintiff’s initial discovery requests.
12).

(Doc. No.

Plaintiff posits that in the course of analyzing the

employment records produced by defendants, plaintiff discovered
that defendants failed to pay her overtime wages.
at 2).

(Doc. No. 22

As such, plaintiff seeks to amend her complaint to add

the failure to pay overtime wages to the factual allegations.
(Doc. No. 26 at ¶¶ 31, 36).

Based on these allegations,

plaintiff purports to add a federal claim and a state claim for
the failure to pay overtime.

Rather than add additional counts

to the complaint, plaintiff simply changes the phrase “a direct
violation of the West Virginia Wage Payment and Collection Act
(WPCA)” to “a direct violation of both federal and State Law,

1

The revised proposed amended complaint attached to plaintiff’s
reply is substantially the same as the initial proposed amended
complaint. The only difference worth pointing out is the
addition of “and federal law” to paragraph 36. Consequently, in
the interests of judicial efficiency, the court will address the
proposed amendment attached to plaintiff’s reply. Any reference
in this order to the proposed amended complaint is to the
complaint attached to plaintiff’s reply. (Doc. No. 26 at 1422). Defendants are not prejudiced by this court addressing the
complaint attached to the reply because it simply attempts to
respond to defendants’ concerns and makes no substantive changes
which would alter the disposition of this motion.
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including, inter alia, West Virginia wage and hour laws and the
[WPCA].”

(Doc. Nos. 1-2 at ¶ 46, and 26 at ¶ 47).

The “federal

law” presumably refers to the Fair Labor Standards Act (FLSA),
and the “West Virginia wage and hour laws” is presumably a
reference to the West Virginia Minimum Wage and Maximum Hours
Standard Act.2

The manner in which plaintiff has sought to add a

claim on the basis of unpaid overtime wages is anything but
organized or articulate – making the disposition of this motion
a much closer call than it likely should be.
Analysis
Rule 15(a) of the Federal Rules of Civil Procedure permits
a party to amend its pleading "once as a matter of course at any
time before a responsive pleading is served . . . [o]therwise a
party may amend the party’s pleading only by leave of court or

2

Other than these proposed changes, the proposed amended
complaint is the same as the original complaint. This is
despite the fact that an intervening order of this court
dismissed Counts One and Five of the original complaint. (Doc.
No. 16). The court dismissed Count One without prejudice
because the court lacked subject matter jurisdiction over
plaintiff’s Title VII claim due to the plaintiff’s failure to
exhaust her administrative remedies. Id. at 4. Plaintiff
alleges no new facts in her proposed amended complaint to
suggest that she has now received a right-to-sue letter from the
Equal Employment Opportunity Commission. Additionally, the
emotional distress claims made in Count Five were dismissed for
reasons stated in the order. To the extent that this court
grants plaintiff’s motion for leave to amend her complaint, the
court’s order on the defendants’ motion to dismiss is still in
full effect. Counts One and Five remain dismissed, and Count
Three is still dismissed as against the individual defendants.
4

by written consent of the adverse party; and leave shall be
freely given when justice so requires."

In Foman v. Davis, 371

U.S. 178, 182 (1962), the United States Supreme Court noted that
amendment under Rule 15(a) should be freely given absent "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, futility of amendment, etc."
However, in the Southern District of West Virginia, it is
well established that “[o]nce the scheduling order’s deadline
for amendment of the pleadings has passed, a moving party first
must satisfy the good cause standard of Rule 16(b) [of the
Federal Rules of Civil Procedure].

If the moving party

satisfies Rule 16(b), the movant then must pass the tests for
amendment under Rule 15(a).”

Marcum v. Zimmer, 163 F.R.D. 250,

254 (S.D.W. Va. 1995) (citing Lone Star Transp. Corp. v. Lafarge
Corp., Nos. 93-1505, 93-1506, 1994 WL 118475 (4th Cir. April 7,
1994)).
A. Rule 16(b) Good Cause
As the deadline for amended pleadings passed prior to the
filing of this motion, plaintiff must satisfy the “good cause”
standard of Rule 16(b) in addition to meeting the requirements
of Rule 15(a).

“Unlike Rule 15(a)’s liberal amendment policy

which focuses on the bad faith of the party seeking to interpose
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an amendment and the prejudice to the opposing party, Rule
16(b)'s ‘good cause’ standard primarily considers the diligence
of the party seeking the amendment.”

Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); Marcum,
163 F.R.D. at 254 (citing Johnson).

After a review of the

record, it appears to the court that plaintiffs were more or
less diligent in making their motion to amend the complaint.

It

is true that plaintiff sought leave to amend over a month after
the deadline for amendments had passed.

Plaintiff points out,

however, that she had to “have a consultant review and analyze
the time entry and wage documents, ensure that Plaintiff has
sufficient evidence and a sufficient base to assert the overtime
wage claim, seek to amicably amend her complaint, prepare a
motion to amend her complaint, [and] prepare an amended
complaint.”

(Doc. No. 26 at 5).

Judging from the proposed

amended complaint, it does not appear that plaintiff spent too
much time drafting it.

The court nonetheless recognizes that

these other tasks take considerable time, effort, and diligence.
While the court agrees that plaintiff could have filed this
motion earlier than July 11, 2013, the fact that she waited
until July could indicate an abundance of caution rather than
the sort of foot-dragging alleged by defendants.

In such a

close case, the court thinks it best to err on the side of the

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plaintiff and finds that she has met the “good cause” standard
of Rule 16(b).
B. Rule 15(a)
Advancing now to the requirements of Rule 15(a), the court
further finds that there has been no undue delay, bad faith, or
dilatory motive on the part of plaintiff in untimely filing her
motion to amend.

The court, therefore, in considering the Foman

factors, is left to ascertain whether allowing the requested
amendment would cause undue prejudice to the defendants or be an
act in futility.

The court will address prejudice and futility

in turn.
1. Prejudice
Defendants contend that permitting the proposed amendment
would be unduly prejudicial to defendants.

(Doc. No. 23 at 3).

They argue that the addition of a failure to pay overtime claim
at this date, whether federal or state law based, would mean
that defendants would not have enough time to gather information
to prepare a defense.

It is true, as defendants point out, that

“[a] common example of a prejudicial amendment is one that
raises a new legal theory that would require the gathering and
analysis of facts not already considered by the defendant and if
offered shortly before or during trial.”
F.3d 404, 427 (4th Cir. 2006).

Laber v. Harvey, 438

However, even if the overtime

claim would require the gathering of facts not already
7

considered by defendants, the amendment is not being offered
shortly before trial.

Trial in this matter is currently

scheduled for February 4, 2014 – nearly five months away.
No. 11).

(Doc.

Surely, this is sufficient time to gather and analyze

information pertinent to defendants’ defense.3

As such, the

court finds that defendants will not be prejudiced by permitting
the proposed amendment.
2. Futility
The issue of futility presents a more difficult question
than that of prejudice – a difficulty that could have been
avoided had the proposed amendment been clearer.

Leave to amend

should be denied for futility “when the proposed amendment is
clearly insufficient or frivolous on its face.”

Johnson v.

Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986).

More

specifically, “[f]utility is apparent if the proposed amended
complaint fails to state a claim under the applicable rules and
accompanying standards.”

Katyle v. Penn Nat. Gaming, Inc., 637

F.3d 462, 471 (4th Cir. 2011).

That is, an amendment is futile

3

The deadline to make discovery requests was August 20, 2013,
and the deadline to complete all depositions is October 4, 2013.
(Doc. No. 11). If defendants feel that they will require
additional time to obtain discovery in light of the proposed
amendment, they have several options pursuant to this district’s
Local Rules of Civil Procedure. They can move to amend the
scheduling order by showing good cause, or they can seek a
private agreement with plaintiff to extend discovery. See Local
Rule of Civil Procedure 16.1(f)(1)-(3). The court notes that
good cause is likely present.
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if it does not satisfy the requirements of the Federal Rules of
Civil Procedure.

See U.S. ex rel. Wilson v. Kellog Brown &

Root, Inc., 525 F.3d 370 (4th Cir. 2008) (district court did not
abuse its discretion in denying leave to file an amended
complaint where the proposed amended complaint did not properly
state a claim under Rule 12(b)(6)).

In essence, the court

is required to determine whether plaintiff’s proposed amendment
states a claim upon which relief can be granted.
To that end, defendants make several arguments why the
amendment fails as a matter of law, i.e. is futile.

Primarily,

defendants focus on the underlying source of authority for a
cause of action based on the failure to pay overtime wages.
(Doc. No. 23 at 3-5).

The essence of defendants’ argument is

that the Fair Labor Standards Act (FLSA) is the exclusive remedy
available to recover unpaid overtime wages; and because
plaintiff does not appear to allege a violation of the FLSA,
leave to amend must be denied.

Id.

Oddly, plaintiff responds

with the argument that defendants are not engaged in “commerce”
as defined by the FLSA and consequently are not covered by the
statute.

(Doc. No. 26 at 8-9).

Defendants correctly point out

that the West Virginia Wage Payment and Collection Act (WPCA)
addresses the timing of wage payments and cannot form the basis
for a claim of failure to pay overtime wages.

See Westfall v.

Kendle Int’l, CPU, LLC, 1:05-cv-00118, 2007 WL 486606 at *16
9

(N.D.W. Va. Feb. 15, 2007) (“The WPCA does not create a right to
the overtime premium.”); Davis v. Murdock, 2:10-cv-01332, 2011
WL 588433 at *2 (S.D.W. Va. Feb. 9, 2011) (citing Westfall).
This leaves the FLSA or the West Virginia Wage and Maximum
Hours Standards Act as the possible sources of authority for
plaintiff’s overtime claim.

As the defendants point out, the

Minimum Wage and Maximum Hours Standards Act does not apply to
employers if eighty percent of the employees “are subject to any
federal act relating to minimum wage, maximum hours and overtime
compensation.”

W. Va. Code § 21-5C-1(e).

Defendant goes on to

assert that eighty percent of its employees are covered by the
FLSA – an assertion questioned by plaintiff.

Other critical

factual matters must be uncovered before it is clear which
theory, if any, plaintiff can pursue.

For example, the FLSA

applies to an “[e]nterprise engaged in commerce” which is
defined as one “whose annual gross volume of sales made or
business done is not less than $500,000.”
203(s)(1)(A)(ii).

29 U.S.C. §

The court need not decide which theory forms

the basis of plaintiff’s overtime claim.
cannot decide on the current record.

Indeed, the court

Based on the current

record, there is not enough information to determine whether
eighty percent of defendants’ employees are covered by the FLSA,
whether defendants’ gross volume of business is greater than

10

$500,000, or other critical facts necessary to trigger FLSA
coverage.
This dispute, while ultimately critical to the resolution
of this case, is not pertinent at this stage of the litigation.
It is well-settled that “[a] party is not required to plead any
specific legal theories to state a valid claim for relief, but
are only required to plead sufficient facts from which it could
claim a right of recovery, regardless of the particular legal
theory.”

Exec. Risk Indem., Inc. v. Charleston Area Med. Ctr.,

Inc., 681 F. Supp. 2d 694, 723 (S.D.W. Va. 2009).

This general

rule of pleading is uniformly followed in the federal system.
See generally 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1215 (3d ed.).

Indeed, courts have determined that

citing the wrong statute as the basis for a claim will not
render the pleading insufficient.

See Hatmaker v. Memorial Med.

Cntr., 619 F.3d 741, 743 (7th Cir. 2010) (“Even citing the wrong
statute needn’t be a fatal mistake, provided the error is
corrected in response to the defendant’s motion for summary
judgment and the defendant is not harmed by the delay in
correction.”) (emphasis supplied) (citing Ryan v. Illinois Dep’t
of Children & Family Servs., 18 F.3d 751, 764 (7th Cir. 1999)
(“It is of no moment therefore that [plaintiff’s] complaint
identified the wrong statute as the basis for their claim, as

11

long as their allegations gave notice of a legally sufficient
claim.”) (emphasis supplied)).
Plaintiff’s allegations give defendants notice of a legally
sufficient claim.

Plaintiff alleges that she worked in excess

of forty hours per week and was not paid overtime wages.
No. 26 at 18, ¶ 36).

(Doc.

While the allegations are certainly bare

bones, they are sufficient to state a claim based on the failure
to pay overtime wages.

See Butler v. DirectSat USA, LLC, 800

F.Supp.2d 662, 667-68 (D. Md. 2011) (plaintiffs’ simple
allegations that they worked in excess of forty hours and were
not paid overtime were sufficient to state a claim under the
FLSA).4

For the sake of clarity, it would be nice to know what

legal theory plaintiff is pursuing.

However, the liberal

pleading requirements do not mandate that plaintiff provide it.
As such, the court finds that the proposed amended complaint is
not futile.
Conclusion
Plaintiff has met the good cause requirement of Rule 16(b)
and established that she is entitled under Rule 15(a) to amend
4

The Butler decision provides a useful discussion of the two
approaches that federal district courts have taken with respect
to pleading FLSA claims post-Twombly. Butler, 800 F.Supp.2d at
667-68. The stricter approach requires specificity as to the
number of hours worked per week, while the more lenient approach
permits the type of simple allegations at issue here. For the
reasons expressed by Judge Chasanow, this court finds the more
lenient approach to be more practical and faithful to the
federal rules.
12

the complaint.

While the arguments offered by defendants may

ultimately have some merit, they would be better presented in a
dispositive motion such as one for summary judgment.

Defendants

may have occasion to revive their arguments in the future.
Substantive legal arguments as to the merits of plaintiff’s
claim will be best resolved on a more complete record.
As outlined more fully above, plaintiff’s motion for leave
to file amended complaint (Doc. No. 21) is GRANTED.

The Clerk

is directed to file the amended complaint (attached to
plaintiff’s reply, Doc. No. 26 at 14-22).
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 26th day of September, 2013.
ENTER:

David A. Faber
Senior United States District Judge

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