Evans v. TRG Customer Solutions, Inc. et al

Filing 23

MEMORANDUM OPINION & ORDER granting plaintiff's 14 MOTION to Amend Complaint Attached to 1 Notice of Removal; directing the Clerk to file as of this date the complaint attached to plaintiff's motion as the first amended complaint in this action. Signed by Judge John T. Copenhaver, Jr. on 5/9/2014. (cc: attys; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KATHERINE EVANS,
Plaintiff,
v.

Civil Action No. 2:14-00663

TRG CUSTOMER SOLUTIONS, INC. and
JASON RITCHEY,
Defendants.

MEMORANDUM OPINION & ORDER

Pending is the plaintiff’s motion for leave to amend her
complaint, filed April 14, 2014.

The plaintiff, Katherine Evans (“Evans”), brought a
complaint in the Circuit Court of Kanawha County on October 17,
2013, and defendant TRG Customer Solutions, Inc. (“TRG”) removed
the case on January 8, 2014.

Not. Removal.

Ex. A at 4.

The

complaint alleges “state claims of sexual discrimination and
reprisal for having previously filed an internal complaint of
sexual discrimination and for participating in the internal
complaint process” against her former employer, defendant TRG.
Mot. Remand 1.

Defendant Jason Ritchey (“Ritchey”), a manager at

TRG when the plaintiff worked there, is alleged to have engaged in
harassment and discriminatory employment decisions, including
taking part in terminating the defendant in an act of reprisal.

Compl. ¶¶ III, VI, VII, XVII.

Evans requests an injunction

restoring her position, front pay, back pay, reimbursement for
Social Security benefits, and other damages.

The plaintiff wishes to amend her complaint to add
claims of negligent supervision and negligent retention against
TRG for the continued employment of Ritchey after TRG was aware of
his sexual discrimination, and also to allege that TRG caused
Evans damage in this regard.

Mot. Leave Amend Compl. ¶¶ 2-3.

The

plaintiff filed her motion for leave to amend the complaint on the
deadline for such motions set by the court’s March 12, 2014
scheduling order.

Defendant TRG did not respond to the motion.

However,

through a separate written communication with the court’s law
clerk and counsel for the plaintiffs, TRG indicated that it was
not filing opposition to the motion because it believes that the
motion to amend the complaint is moot inasmuch as TRG planned to
(and did) move to compel arbitration on May 2, 2014; and so, TRG
says in its email, jurisdiction should rest with an arbitrator,
not the court. 1

If TRG wished to raise this argument, it should have
presented it in a response to the plaintiff’s motion.
1

As for

The court notes that the motion to compel arbitration will be
decided in due course, once the parties have responded and
replied.
2

Ritchey, he has yet to be served and has not responded to the
motion.

Accordingly, the court considers the motion for leave to

amend the complaint to be unopposed.

The court observes that the motion for leave to amend is
not moot as the court is not divested of jurisdiction simply
because an arbitration agreement exists.
with the court throughout arbitration.

Jurisdiction may remain
See 9 U.S.C. §§ 3, 9

(2012) (requiring the court to stay cases where arbitration should
occur).

Indeed, the court must exercise its jurisdiction to enter

judgment at the conclusion of arbitration.

See id. § 9.

It is

true that the question of arbitrability may be put to an
arbitrator, depending on the agreement between the parties.

See

Central West Virginia Energy, Inc. v. Bayer Cropscience, LLP, 645
F.3d 267, 273 (4th Cir. 2011).

But a different question is posed

here -- namely, whether the plaintiff may amend her complaint in a
civil action before this court.

The arbitrator has no power to

decide this question of federal court procedure.

Under Federal Rule of Civil Procedure 15(a), the
“court should freely give leave [to amend a pleading] when justice
so requires.”

Fed.R.Civ.P. 15(a).

“The law is well settled ‘that

leave to amend a pleading should be denied only when the amendment
would be prejudicial to the opposing party, there has been bad
faith on the part of the moving party, or the amendment would be
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futile.’”

Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th

Cir. 1999)(quoting Johnson v. Oroweat Foods Co., 785 F.2d 504, 509
(4th Cir. 1986)).

There is no suggestion that the amendment would

be unfairly prejudicial to the defendants or that it has been
presented in bad faith.

Nor has it been shown to be futile.

For the foregoing reasons, it is ORDERED that the
plaintiff’s motion for leave to amend her complaint, filed April
14, 2014, be, and it hereby is, granted.

The Clerk is directed to

file as of this date the complaint attached to the plaintiff’s
motion as the first amended complaint in this action.

The Clerk is directed to transmit this order to all
counsel of record and any unrepresented parties.

ENTER: May 9, 2014
John T. Copenhaver, Jr.
United States District Judge

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