Matheny v. L.E. Myers Co. et al

Filing 243

MEMORANDUM OPINION AND ORDER granting 102 MOTION by David K. Matheny to amend the complaint; plaintiff is directed to file his First Amended Complaint in compliance with this opinion and order by 3/12/2018. Signed by Judge John T. Copenhaver, Jr. on 2/26/2018. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DAVID K. MATHENY,
Plaintiff,
v.

Civil Action No. 2:16-cv-09304

L.E. MYERS CO.,
a foreign corporation, and
APPALACHIAN POWER COMPANY,
a foreign corporation d/b/a
American Electric Power,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff’s motion to amend the complaint,
filed August 8, 2017.
I. Background
This case arises from injuries sustained by plaintiff,
David Matheny, on July 18, 2016, when he was assisting in the
demolition of a steel tower as an employee of The L.E. Myers Co.
(“L.E. Myers”).

The tower was a ninety-year-old, 100 foot tall

steel lattice transmission tower located in the Kanawha State
Forest that was owned and operated by Appalachian Power Company,
doing business as American Electric Power (“APCo”).
¶¶ 7-9.

Pl.’s Compl.

To dismantle the tower, David Matheny and his crew were

instructed to climb up the tower, approximately twenty to thirty

1

feet off the ground, to remove the structural support bolts.

Id.

at ¶¶ 13-14.

During this process, the tower suddenly collapsed.

Id. at ¶ 16.

Mr. Matheny was thrown from the falling tower from a

height of approximately thirty feet, resulting in his injuries.
Id. at ¶ 17. He suffered an open fracture to his leg, blood loss,
a broken hand, collapsed lung, and injuries to his head and other
areas of his body as a result of the fall.

Id.

Mr. Matheny has

undergone significant medical treatment including multiple
surgeries and hospitalizations since the date of injury.

Id. at ¶

19.
At the outset of this action, Mr. Matheny brought one
count against each of the named defendants, L.E. Myers and APCo.
Against his employer, L.E. Myers, Mr. Matheny asserts a claim for
deliberate intent pursuant to W. Va. Code § 23-4-2.

Id. at ¶ 24.

Against APCo, he alleges negligent conduct in the breach of
various duties related to planning and executing the tower
deconstruction. Id. at ¶¶ 33-48.
Plaintiff now wishes to amend his complaint to add five
additional defendants and two additional claims.

In particular,

he seeks to assert a new claim against L.E. Myers for intentional
spoliation of evidence, to bring a claim for negligence against
MYR Group, Inc. (“MYR Group”), the parent company of L.E. Myers,
and to add four additional American Electric Power-related

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entities to his negligence claim against APCo: American Electric
Power Company, Inc. (“AEP”), AEP West Virginia Transmission
Company, Inc. (“AEP WV Transmission”), AEP Transmission Company,
LLC (“AEP Transmission”), and American Electric Power Service
Corporation (“AEP Service”) (together, “AEP defendants”).
Mr. Matheny asserts that new information gained through
discovery gives rise to the inclusion of the additional claims and
parties.

Pl.’s Mem. Supp. Mot. Amend at 3 (“Pl.’s Mem.”).
L.E. Myers opposes the motion to amend the complaint to

add both the intentional spoliation claim against it, and the
negligence claim against its parent company, MYR Group.
Myers asserts that both amendments would be futile.

L.E.

L.E. Myers

states that plaintiff cannot maintain a claim for spoliation of
evidence and that such a claim would be barred by the Worker’s
Compensation Act.
L.E. Myers further claims that plaintiff is precluded
from bringing a negligence claim against MYR Group because, it
argues, the parent company should also be afforded Worker’s
Compensation immunity pursuant to W. Va. Code § 23-2-6.

L.E.

Myers states that this immunity should apply because the parent
group can be considered plaintiff’s employer.

L.E. Myers also

asserts that MYR Group should be considered plaintiff’s employer
because MYR Group had the authority to direct and control
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plaintiff’s activities.

Similarly, L.E. Myers claims that MYR

Group was plaintiff’s employer because other employees of MYR
Group who provided on-site safety-related services were the agents
or representatives of L.E. Myers.
Finally, L.E. Myers also takes issue with the timing of
plaintiff’s motion.

Mr. Matheny filed his motion to amend the

complaint several months after the deadline for amendments set in
this court’s scheduling order.

Allowing this late amendment, L.E.

Myers contends, would be prejudicial because defendants do not
have an opportunity to conduct discovery to oppose the new claims
being raised.
APCo opposes the motion to amend the complaint to add
the four additional related entities as defendants.

APCo states

that plaintiff was aware of the proposed defendants’ relation to
the project, on which Mr. Matheny was working when injured, well
before the filing of the motion to amend the complaint, thus
making his motion dilatory.

Specifically, APCo contends that

plaintiff knew of AEP Service’s involvement as early as January
and at latest by the end of April of 2017.

Plaintiff also had

documents from OSHA identifying OSHA’s investigation of AEP, AEP
Transmission, and AEP WV Transmission for the July 18, 2016
accident by April 2017.

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II. Legal Standard
“The district courts have applied a two-step analysis
for use when a motion to amend the pleadings is made after the
deadline set in the scheduling order has passed: (1) the moving
party must satisfy the good cause standard of Rule 16(b), and (2)
if the movant satisfies Rule 16(b), the movant then must pass the
tests for amendment under Rule 15(a).”

3-16 Moore's Federal

Practice - Civil § 16.13 (2015); see also Hawkins v. Leggett, 955
F.Supp.2d 474, 497-99 (D. Md. 2013) (stating and applying two-part
test).

This analysis has emerged because litigants seeking to

amend their pleadings outside the court’s deadlines for doing so
must effectively modify the scheduling order under Rule 16 as
well.

Thus, “[a]lthough leave to amend a complaint should be

‘freely give[n] [. . .] when justice so requires,’ Fed. R. Civ. P.
15(a)(2), ‘after the deadlines provided by a scheduling order have
passed, the good cause standard [of Fed. R. Civ. P. 16] must be
satisfied to justify leave to amend the pleadings.’”

RFT Mgmt.

Co., LLC v. Powell, 607 F. Appx. 238, 242 (4th Cir. 2015)
(alterations added and in original) (quoting Nourison Rug Co. v.
Parvizian, 535 F.3d 295, 298 (4th Cir. 2008)); see also Montgomery
v. Anne Arundel County, 182 Fed. Appx. 156, 162 (4th Cir. May 3,
2006) (affirming denial of amendment based on Rule 16 standard
where scheduling order deadline had passed).

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“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, 182 F. App’x. at 162; see also

Hawkins, 955 F.Supp.2d at 498 (“The movant satisfies the good
cause requirement by showing that, despite diligence, the proposed
claims could not have been reasonably brought in a timely
manner.”); 3 Moore's Federal Practice § 15.14(1)(b), at 16–72
(Matthew Bender 3d ed.) (“[I]t seems clear that the factor on
which courts are most likely to focus when making this
determination is the relative diligence of the lawyer or lawyers
who seek the change.”).
If the proposed amendment passes the Rule 16(b) test,
Rule 15(a)(2) instructs that “[t]he court should freely give leave
when justice so requires,” which has been held to disallow an
amendment “only where it would be prejudicial, there has been bad
faith, or the amendment would be futile.”

Nourison, 535 F.3d at

298 (citing HCMF Corp. v. Allen, 238 F.3d 273, 276–77 (4th Cir.
2001)).

An “amendment [is] futile when the proposed amended

complaint fails to state a claim,” Van Leer v. Deutsche Bank Sec.,
Inc., 479 F. Appx. 475, 479 (4th Cir. 2012)(citation omitted), or
when it otherwise “fails to satisfy the requirements of the
federal rules,” United States ex rel. Wilson v. Kellogg Brown &

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Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008))(rejecting complaint
for failure to state a claim as well as for lack of sufficient
particularity under Rule 9(b))(citation omitted).
III. Discussion
As stated previously, the purpose of plaintiff’s
amendment is to add four additional AEP defendants to his
negligence claim against APCo, assert a claim for negligence
against MYR Group, and assert one additional claim, for
spoliation, against current defendant, L.E. Myers.
A. 16(b) Good Cause
Pursuant to this court’s original scheduling order, the
parties had until December 30, 2016 to join additional parties or
amend the pleadings.

ECF No. 16.

The schedule in this case was

modified on March 14, 2017, but no additional time was given for
an amendment or joinder of parties.

See ECF No. 37.

Following the filing of this action on October 3, 2016,
plaintiff states that he “promptly began engaging in discovery.”
Pl.’s Mem. at 2.

The proposed amendments all result from

information obtained throughout discovery.

During the course of

discovery, plaintiff states there were various “issues and delay
in receipt of sufficient response from defendants.”

Id.

“issues” include discovery disputes, delays in scheduling
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These

depositions, and identification of related entities who may be
liable for plaintiff’s injuries.

See Id. at 2-3, 9-11.

Some of

these “issues” were the subject of plaintiff’s three motions to
compel, two of which were heard before Magistrate Judge Tinsley on
September 27, 2017, and one of which was ultimately granted by the
order of October 4, 2017.

See ECF Nos. 32, 58, 62, 152, 164, 165.

Despite the submission of the motion to amend the
complaint well after the deadline set in the scheduling order, Mr.
Matheny’s proposed amendments meet the “good cause” standard
required by Fed. R. Civ. P. 16(b)(4).

Both defendants contest the

timeliness of plaintiff’s motion.
Defendant L.E. Myers raises general concerns with the
propriety of an amendment after the close of discovery,
particularly for the proposed additional defendants.

Def. L.E.

Myers’ Resp. Pl.’s Mot. Amend at 7-8 (“Def. L.E. Myers’ Resp.”).
However, where “good cause” exists, a court may modify the
scheduling order even to reopen discovery.

Fed. R. Civ. P.

16(b)(4); Ardrey v. United Parcel Service, 798 F.2d 679, 682 (4th
Cir. 1986) (“[A] district court has wide latitude in controlling
discovery . . . .”).

Furthermore, necessary information related

to plaintiff’s claim against MYR Group was obtained by him as
recently as October 2017 pursuant to an order granting his motion
to compel against L.E. Myers.

See ECF No. 165.

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Defendant APCo contends that plaintiff’s motion is
dilatory as to the proposed addition of the four AEP entities. It
asserts that plaintiff knew of the potential involvement of all
four additional AEP defendants by April 21, 2017. Def. APCo’s
Resp. Pl.’s Mot. Amend at 6-7 (“Def. ApCo’s Resp.”).

Furthermore,

APCo states that the corporate structure and relationship of the
AEP defendants “would have been readily available to [plaintiff]
at any time on [AEP’s] website or through various governmental
agencies.”

Id. at 8.
Plaintiff replies that he “diligently pursued efforts to

decipher not just the identity of other AEP-related entities, but
their actual involvement with respect to the subject [tower]
project.”

Pl.’s Reply to Def. APCo’s Resp. at 3.

Plaintiff made

requests for admissions and sought such information through
interrogatories regarding the corporate structure of the AEP
defendants.

Id. at 2-4.

Through no apparent fault of plaintiff,

and even though he had already filed his motion to amend the
complaint, depositions of the representatives of AEP entities did
not take place until August 14 and 17, 2017.

Id. at 3.

Plaintiff

thus asserts that he diligently pursued information about AEP
entity involvement throughout the course of discovery.
6.

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Id. at 5-

The court is satisfied that plaintiff diligently pursued
information leading to this motion to amend the complaint
throughout the discovery process.

Plaintiff has thereby met the

“good cause” standard of Fed. R. Civ. P. 16(b)(4).
B. 15(a)(2)
A motion to amend a complaint should be denied “only
where it would be prejudicial, there has been bad faith, or the
amendment would be futile.”

Nourison, 535 F.3d at 298 (citing

HCMF Corp. v. Allen, 238 F.3d 273, 276–77 (4th Cir. 2001)).

Each

of plaintiff’s proposed amendments will be considered in turn.
i. Intentional Spoliation against L.E. Myers
Plaintiff wishes to assert a claim for intentional
spoliation of evidence related to an alleged prior tower collapse
that plaintiff asserts was “nearly identical” to his own
experience.

Pl.’s Mem. at 7.

In discovery, L.E. Myers stated

that they had “no records pertaining to the alleged . . . incident
. . . involving another tower.”

Email from M. Baldwin to B. Ware

(June 20, 2017), Ex. 1 to ECF No. 64.

Plaintiff believes that

this lack of evidence regarding the alleged collapse of another
tower clearly indicates that L.E. Myers intentionally destroyed
this evidence, intentionally altered the evidence so that it could
not be linked to an incident with the prior tower, or

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intentionally avoided the creation of documentary evidence about
the collapse and destroyed the physical evidence of the fallen
tower.

Pl.’s Mem. at 8; Pl.’s Reply to Def. L.E. Myers’ Resp. at

9.
L.E. Myers contends that plaintiff’s proposed claim for
intentional spoliation is futile.

Def. L.E. Myers’ Resp. at 5.

Amendment of a complaint is futile when the proposed amendment
would not survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), Perkins v. United States, 55 F.3d 910, 917 (4th Cir.
1995), but “conjecture about the merits of the
litigation should not enter into the decision [of] whether to
allow amendment,” Davis v. Piper Aircraft Corp., 615 F.2d 606, 613
(4th Cir. 1980).
[T]he tort of intentional spoliation consists of
the following elements: (1) a pending or potential
civil action; (2) knowledge of the spoliator of the
pending or potential civil action; (3) willful
destruction of evidence; (4) the spoliated evidence
was vital to a party’s ability to prevail in the
pending or potential civil action; (5) the intent
of the spoliator to defeat a party’s ability to
prevail in the pending or potential civil action;
(6) the party’s inability to prevail in the civil
action; and (7) damages.
Hannah v. Heeter, 213 W. Va. 704, 717 (2003).

Defendant L.E.

Myers states that plaintiff cannot meet all of these elements.
Yet even if plaintiff ultimately fails on this claim, his proposed

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First Amended Complaint viably pleads the elements of the tort and
cannot be said to be futile at this time.

See Ex. A to Pl.’s Mot.

Amend at ¶¶ 93-101 (“Proposed Am. Compl”).
ii. Negligence Claim against MYR Group
Plaintiff proposes to add defendant MYR Group, the
parent of L.E. Myers, to this action and asserts a claim of
negligence against it.

He alleges that MYR Group independently

assumed a duty to ensure work on the project was done safely but
recklessly placed unqualified individuals on the job site to
monitor safety in breach of its duty; and he claims that this
breach proximately caused his injuries.

Pl.’s Mem. at 5-6.

L.E. Myers argues that this proposed amendment is futile
because MYR Group is immune from suit by virtue of the West
Virginia Workers’ Compensation Act unless the injuries were
inflicted with deliberate intention.
2.

Def. L.E. Myers’ Resp. at 1-

Defendant L.E. Myers bases MYR Group’s immunity on (1) L.E.

Myers’ contention that MYR Group employees present at the worksite
were agents and representatives of L.E. Myers, and (2) L.E. Myers’
assertion that, “to the extent that MYR Group controlled the
actions of [p]laintiff, it is also considered his ‘employer.’”
Id. at 2-3.

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Covered employers are generally immunized from suits for
damages “at common law or by statute” resulting from work-related
injuries.

W. Va. Code § 23-2-6.

This immunity extends to “every

officer, manager, agent, representative or employee of such
employer when he is acting in furtherance of the employer’s
business and does not inflict an injury with deliberate intent.”
W. Va. Code § 23-2-6a.
“Generally the words of a statute are to be given their
ordinary and familiar significance and meaning” when not defined
in the statute itself.

Wetzel v. Emplrs. Serv. Corp., 221 W. Va.

610, 615 (2007) (quoting Syl. Pt. 4, State v. General Daniel
Morgan Post No. 548, Veterans of Foreign Wars of the United
States, 144 W. Va. 137 (1959)).

An “agent is one who represents

another . . . in dealings with third persons.

He is one who

undertakes some business or to manage some affair for another by
authority of or on account of the latter and to render an account
of it.”

Id. (citations omitted).
Plaintiff alleges that MYR Group placed several

employees on site during the course of the tower project to
“provide safety supervision over the project,” and “independently
monitor and ensure safety of the work being performed.
Am. Compl. ¶ 78.

Proposed

While it is possible that these individuals

could have been agents working on behalf of the subsidiary, L.E.

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Myers, it is equally possible that these individuals were
conducting independent monitoring for the independent benefit of
MYR Group.

To the extent that a factual dispute exists as to the

relationship between L.E. Myers and the MYR Group safety
monitoring employees, the proposed amendment is not futile.

See

Thompson v. Stuckey, 171 W. Va. 483, 487 (1983) (citing Syl. Pt.
2, Laslo v. Griffith, 143 W. Va. 469 (1958)).
As to the assertion that plaintiff was an employee of
MYR Group, the right to supervise can indicate an employeremployee relationship between the one having work done and the one
conducting the work, but this line of reasoning principally
applies to determinations of whether an individual is considered
an independent contractor or an employee.
Cohen, 149 W. Va. 197, 210-11 (1965).

See, e.g., McCoy v.

This analysis, as applied

to this case, presupposes that Mr. Matheny was performing work for
MYR Group either instead of, or in addition to the work he was
performing for L.E. Myers.

It is undisputed that Mr. Matheny is

an employee of L.E. Myers, but in order for Mr. Matheny to also be
performing work on behalf of MYR Group, the parent company would
have to be considered his “special employer.”
An employee of one employer may become the employee of
another “special employer” when he is “directed or permitted to

14

perform services for [the] special employer.”

Maynard v. Kenova

Chemical Co., 626 F.2d 359, 361 (4th Cir. 1980) (per curiam).
When a general employer lends an employee to a
special employer, the special employer becomes
liable for workmen’s compensation [and, therefore
entitled to workers’ compensation immunity] only if
(a) the employee has made a contract of hire,
express or implied, with the special employer; (b)
the work being done is essentially that of the
special employer; and (c) the special employer has
the right to control the details of the work. When
all three of the above conditions are satisfied . .
. both employers are liable for workmen’s
compensation.
Id. at 362.

Accordingly, even if MYR Group could be said to have

exerted some control over Mr. Matheny inasmuch as its employees
may have been able to supervise, train him, or direct his
compliance with “applicable federal and state rules, regulations,
and industry standards,” this meets only one criteria of the
relevant standard articulated in Maynard.
¶¶ 82, 84.

See Proposed Am. Compl.

Accordingly, the current record

does not support a finding that Mr. Matheny was performing work
for MYR Group such that MYR Group can also be considered his
employer.
At this time, plaintiff’s proposed claim for negligence
against MYR Group does not appear to the court to be futile or
precluded by workers’ compensation immunity.

Further, there is no

indication that this claim was added in bad faith or is in any way
prejudicial to the defendants.

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iii. Additional AEP Defendants
Plaintiff seeks to add four American Electric Powerrelated defendants to his action.

These entities are AEP, AEP WV

Transmission, AEP Transmission, and AEP Service.
APCo asserts that the proposed addition of other AEP
defendants is prejudicial because it would require it to develop
new theories of defense and potentially retain additional expert
witnesses regarding the involvement of the various entities in the
tower project.

Def APCo’s Resp. at 8-9.

APCo further states that

the addition of these defendants was dilatory, but also requests
that, if plaintiff’s motion to amend the complaint is granted,
this court enter a new scheduling order to allow for additional
discovery in this matter.
As previously noted, the court has determined plaintiff
had good cause for his delay in identifying the additional
defendants and bringing this motion to amend the complaint.
Therefore, even though extensive delay and additional costs can be
a source of prejudice to an opposing party, it is within the
discretion of the court to allow an amendment and reopen
discovery.

Ardrey, 798 F.2d at 682; Burton v. Youth Servs. Int’l,

176 F.R.D. 517, 521 (D. Md. Nov. 25, 1997) (“If a party can
demonstrate that the amendments are needed . . . or that further

16

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
THOMAS PARKER,
discovery is necessary because of facts justifiably learned for
Plaintiff,
the first time near the end of discovery, a judge should exercise
v.
Civil Action No. 15-14025
her discretion to reopen discovery and otherwise amend the
THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
existing schedule.”). Benefits Plan, v. Inova Health Care Servs.,
an Employee Welfare But see, Howard
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
302 Massachusetts Corporation, and 2008) (“A district court does
a Fed App’x 166, 180-81 (4th Cir.
DOES 1 THROUGH 10, inclusive,
not abuse its discretion in denying leave to amend if there is
Defendants.
‘undue delay’ . . . .”) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)).

ORDER AND NOTICE

Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
The court finds that adding AEP, AEP WV Transmission,
certain events must occur:
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
AEP Transmission, and AEP Service to this action is not futile,
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
prejudicial, unduly delayed, or done in bad faith.
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
IV. Conclusion
02/08/2016
Last day for Rule 26(f) meeting.
02/15/2016
Last day to file Report of Parties= Planning
In accordance with the foregoing 16.1.
Meeting. See L.R. Civ. P. discussion, it is
ORDERED that plaintiff’s motion to amend the complaint be, and it
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
hereby is, granted. Plaintiff is directed to file his First
the undersigned, unless canceled. Lead counsel
directed to appear.
Amended Complaint in compliance with this opinion and order by
02/29/2016
Entry of scheduling order.
March 12, 2018.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk isis requested to transmit this of thisand
The Clerk directed to transmit copies Order order
toNotice to all of recordof record unrepresented parties.
all counsel counsel and any and to any unrepresented
parties.
DATED: January 26, 2018
ENTER: February 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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