Tucker et al v. Momentive Performance Materials USA Inc. et al

Filing 741

MEMORANDUM OPINION AND ORDER sustaining Airgas USA's 629 RESPONSE in opposition to 619 SUPPLEMENTAL MOTION by Brian Tucker, Sherri Tucker for Leave to Amend 421 Third Amended Complaint; directing that all references to Airgas Specialty Pro ducts are stricken from Plaintiffs' 646 Fourth Amended Complaint; because Airgas Specialty Products has already been served and filed an answer, directing that Airgas Specialty Products is dismissed as a defendant to the current action. Signed by Judge Thomas E. Johnston on 5/24/2016. (cc: counsel of record; any unrepresented party) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

BRIAN TUCKER, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:13-cv-04480

MOMENTIVE PERFORMANCE
MATERIALS USA INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Airgas USA, LLC’s (“Airgas USA”) opposition to
Plaintiffs’ Supplemental Motion for Leave to Amend Complaint. (ECF No. 629.) For the
reasons stated herein, Airgas USA’s objection is SUSTAINED.
I.

Background

This action, alleging various claims based on Plaintiff Brian Tucker’s exposure to
hazardous chemicals while working for Defendant Momentive Performance Materials USA, Inc.
(“Momentive”), was initially removed to this Court on March 6, 2013. On July 29, 2014,
Plaintiffs amended their complaint to include, for the first time, specific entities alleged to have
supplied the chemicals at issue to Momentive (the “supplier defendants”).

(ECF No. 67.)

Through a lengthy and at times contentious discovery process, Plaintiffs have gradually been able
to discover the information necessary to refine the appropriate class of supplier defendants. This
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process has involved multiple amendments to Plaintiffs’ complaint and the voluntary dismissal of
several supplier defendants. On November 30, 2015, Plaintiffs filed a motion for leave to file a
fourth amended complaint adding several new supplier defendants, including Airgas Specialty
Products (“ASP”). (ECF No. 551.) Subsequently, upon learning the identity of still more
supplier defendants as the result of a court order compelling certain discovery responses, Plaintiffs
filed a supplemental motion for leave to file a fourth amended complaint on February 26, 2016.
(ECF No. 619.) In that motion, Plaintiffs seeks to “withdraw the Fourth Amended Complaint
they filed on November 30, 2015 and request leave to substitute the Fourth Amended Complaint
attached to this Motion.” (Id. at 2.) At a telephonic motions hearing on April 8, 2016, the Court
granted that motion, ordered that the fourth amended complaint be filed, and deemed that
complaint served on all existing defendants to the case as of that date. (See ECF No. 645.)
Airgas USA was the only party to object to Plaintiffs’ supplemental motion for leave to
amend, and the Court took that objection under advisement at the telephonic motions hearing.
Airgas USA’s objection is to Plaintiffs’ attempt to name ASP, its sister corporate entity. As noted
above, many of the new defendants identified in the fourth amended complaint had previously
been unknown to the plaintiffs, their identity only uncovered as the result of the plaintiffs’
diligence throughout a protracted discovery process and a court order granting a motion to compel
certain discovery responses. (See ECF No. 612.) With respect to ASP, however, the record tells
a different story. As Plaintiffs admit, Momentive listed ASP as a supplier of chemicals in a
discovery response dated March 7, 2014. (ECF No. 604, Ex. 1 at 5.) Those same discovery
materials further included a material safety data sheet generally identifying “Airgas INC.” as a
supplier of ammonia. (Id., Ex. 3.) Plaintiffs claim that this information led them to name Airgas
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USA as a party in the second amended complaint, filed on July 29, 2014, because “that was the
only Airgas entity listed in the West Virginia Secretary of State and Plaintiffs[ ] believed this was
the proper party in interest.” (ECF No. 620 at 7.)
However, Plaintiffs did not actually name Airgas USA in the second amended complaint.
Rather, a typographical error caused them to name “Airgas USE” in the second amended
complaint, with the result being that Airgas USA was never served with a copy of that version of
the complaint. Instead, when Plaintiffs attempted to effectuate service through the office of the
West Virginia Secretary of State they were informed that the office had “no listing” for the
defendant named on the summons and that service was therefore not made. (See ECF No. 534,
Ex. A.) Despite receiving this notice on November 7, 2014, Plaintiffs made no further effort to
serve Airgas USA or correct their spelling error until May 7, 2015, when they moved the Court
for leave to file a third amended complaint and attached a proposed complaint correctly listing
Airgas USA. (ECF No. 272.) Eventually that motion was granted and Airgas USA was served
with a copy of the third amended complaint on September 25, 2015.

(ECF No. 428.)

Nonetheless, Airgas USA was not properly served until well over a year after it was originally
named as a party to the present litigation, well outside of the 120-day window for service imposed
by Rule 4(m) of the Federal Rules of Civil Procedure. 1 At a previously held telephonic motions
conference, this Court determined that Plaintiffs’ spelling error in the second amended complaint
did not constitute good cause for excusing their failure in effectuating timely service and granted
Airgas USA’s motion to dismiss on that basis. (ECF No. 645.)

1

Rule 4(m) was amended, effective December 1, 2015, to reduce the applicable time limit to 90 days. However, as
Plaintiffs’ complaint was filed prior to that amendment, the time limit for service of that complaint is set by the prior
version of Rule 4(m).

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Thus, this Court has already determined that Plaintiffs’ lack of diligence in effectuating
service on Airgas USA justified the dismissal of that defendant. Nevertheless, Plaintiffs now seek
to amend their pleading to add ASP, Airgas USA’s sister corporation, on the basis that they have
only recently become aware that this entity is the proper party in interest to the current suit.
Pursuant to the Court’s most recent scheduling order, however, the deadline for amended pleadings
was June 1, 2015, well before Plaintiffs began to pursue their most recent motion to amend. (See
ECF No. 262.) Airgas USA argues that, with respect to their naming of ASP, Plaintiffs have
failed to demonstrate good cause to justify its out of time amendment to the scheduling order and
that allowing such amendment would cause ASP unfair prejudice.
II.

Legal Standard

When a plaintiff seeks to amend his complaint after expiration of a court’s scheduling
deadline with respect to amended pleadings, that plaintiff “first must satisfy the good cause
standard of Rule 16(b). 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); see Fed. R. Civ. P. 16(b) (“A schedule may be modified only for good cause and with the
judge’s consent.”); Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (holding,
in accordance with the other federal courts of appeals to have addressed the issue, that “after the
deadlines provided by a scheduling order have passed, the good cause standard must be satisfied
to justify leave to amend pleadings”).

“Rule 16(b)’s good cause standard focuses on the

timeliness of the amendment and the reasons for its tardy submission; the primary consideration
is the diligence of the moving party.” Montgomery v. Anne Arundel Cnty., 182 F. App’x 156, 162
(4th Cir. 2006) (citing Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262 F. Supp. 2d 618, 631–32
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(D. Md. 2003)); see also Cook v. Howard, 484 F. App’x 805, 815 (4th Cir. 2012) (“‘Good cause’
requires ‘the party seeking relief [to] show that the deadlines cannot reasonably be met despite the
party’s diligence,’ and whatever other factors are also considered, ‘the good-cause standard will
not be satisfied if the [district] court concludes that the party seeking relief (or the party’s attorney)
has not acted diligently in compliance with the schedule.’” (alterations in original) (quoting 6A
Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure Civ.
3d § 1522.2 (3d Ed. 2010))); Marcum, 163 F.R.D. at 255 (“[T]he touchstone of ‘good cause’ under
Rule 16(b) is diligence.”).
“Lack of diligence and carelessness are the ‘hallmarks of failure to meet the good cause
standard.’” Ground Zero Museum Workshop v. Wilson, 813 F. Supp. 2d 678, 707 (D. Md. 2011)
(quoting W. Va. Hous. Dev. Fund v. Ocwen Tech. Xchange, Inc., 200 F.R.D. 564, 567 (S.D. W.
Va. 2001)). Moreover, because the Rule 16 inquiry is primarily focused on the diligence of the
moving party, a mere “lack of prejudice to one’s opponent does not establish good cause.”
Halpern v. Wake Forest Univ. Health Sciences, 268 F.R.D. 264, 274 (M.D.N.C. 2010); see also
Marcum, 163 F.R.D. at 254 (“Although the existence or degree of prejudice to the party opposing
the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon
the moving party’s reasons for seeking modification. If that party was not diligent, the inquiry
should end.” (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992))).
Once a plaintiff demonstrates good cause, then amendment should be allowed in
accordance with the standard set forth by Rule 15(a), which provides that “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave. The Court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Whereas the Rule 16(b)
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analysis focuses on the diligence of the moving party, the Rule 15(a) inquiry focuses “substantially
on the prejudice to the opposing party if leave to amend is granted.” Marcum, 163 F.R.D. at 254
n.8. As this Court has previously recognized:
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 amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.—the leave sought
should, as the rules require, be ‘freely given.’
Burton v. United States, 199 F.R.D. 194, 199 (S.D. W. Va. 2001) (quoting Forman v. Davis, 371
U.S. 178, 182 (1962)). “Although the decision whether to grant leave rests within the sound
discretion of the district court, the federal rules strongly favor granting leave to amend.” Medigen
of Kentucky, Inc. v. Pub. Serv. Comm’n of W. Va., 985 F.2d 164, 167–68 (4th Cir. 1993) (citing
National Bank v. Pearson, 863 F.2d 322, 327 (4th Cir. 1988)).
III.

Discussion

Applying this standard to the present case, the Court cannot determine that Plaintiffs have
demonstrated the requisite diligence with respect to ASP to justify an out of time modification to
the scheduling order. Plaintiffs’ stated reason for waiting so long to name ASP is that, at the time
they became aware of ASP’s involvement in the case, Airgas USA was the only Airgas entity
listed in the West Virginia Secretary of State database. Although Airgas USA disputes that
contention, there is no evidence in the record before this Court that would cause it to question the
validity of Plaintiffs’ claim. Even assuming it to be true, however, Plaintiffs were not diligent in
pursuing their case against Airgas USA. As noted above, Plaintiffs misspelled that entity’s name
in the second amended complaint and did not effectuate service until well over a year after it
became aware that Airgas was involved in the case. As this Court has already determined,
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Plaintiffs have provided no good reason to justify that delay. Plaintiffs were aware that Airgas
USA had not been served in November 2014, but did not make any effort to correct their error or
ensure that service was made until five months later when they moved to amend their complaint.
Thus, Plaintiffs’ reason for seeking to add ASP out of time directly implicates their prior
carelessness in attempting to pursue their claims against ASP’s sister entity. Had Plaintiffs
diligently pursued their claims against the Airgas entity that was listed, they very likely would
have discovered ASP’s role in the corporate structure much sooner and would not now require an
extension of the scheduling order in order to include that party in their case.
Given these facts, this case simply does not present the scenario in which “evidence
supporting the proposed amendment would not have been discovered ‘in the exercise of reasonable
diligence’ until after the amendment deadline had passed.” Interstate Narrow Fabrics, Inc. v.
Century USA, Inc., 218 F.R.D. 455, 460 (M.D.N.C. 2003) (quoting Studio Frames, Ltd. v. Village
Ins. Agency, Inc., No. 1:01CV876, 2003 WL 1785802, at *1 (M.D.N.C. Mar. 31, 2003)). Rather,
even assuming that ASP was not listed in the state database at the time Plaintiffs sought to name
an Airgas defendant in the summer of 2014, Plaintiffs’ own carelessness resulted in no Airgas
entity being made a party to this litigation until September 2015. Once Airgas USA was properly
served, Plaintiffs became aware of ASP’s proper role in this litigation rather quickly; ASP was
listed as a new defendant in Plaintiffs’ original motion for leave to file a fourth amended complaint,
filed on November 30, 2015, just over two months after Airgas USA was properly made a party.
(See ECF No. 551.) Thus, Plaintiffs failure to add ASP as a party before the June 1, 2015 deadline
for amended pleadings is directly traceable to their failure to properly serve Airgas USA. Given
the Court’s previous finding that such failure was the result of carelessness and not justified by
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any good cause, the Court similarly finds that Plaintiffs were not diligent in pursuing their claims
against ASP during the time period for amended pleadings set by this Court’s scheduling order.
Accordingly, the Court finds no good cause to justify modifying that scheduling order to allow for
an out of time amendment to include ASP as a defendant.
IV.

Conclusion

For the reasons stated herein, the Court SUSTAINS Airgas USA’s objection to Plaintiffs’
Supplemental Motion for Leave to Amend Complaint. (ECF No. 629.) Accordingly, the Court
ORDERS that all references to Airgas Specialty Products be STRICKEN from Plaintiffs’ Fourth
Amended Complaint, (ECF No. 646). Further, because Airgas Specialty Products has already
been served and filed an answer, the Court ORDERS that Airgas Specialty Products be
DISMISSED as a defendant to the current action.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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May 24, 2016