Earle et al v. City of Huntington et al

Filing 280

MEMORANDUM OPINION AND ORDER granting in part and denying in part 255 MOTION by Lumumba Earle, Annie Earle to Amend 111 Third Amended Complaint; allowing only the dismissal of Ted Grant as a defendant; Plaintiff's requested amendments against Defendant St. Mary's and Defendant Watkins cannot meet the standards of Federal Rule 15(a)(2) and are DENIED as futile. Signed by Judge Robert C. Chambers on 4/20/2017. (cc: attys; any unrepresented parties) (mkw)

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

LUMUMBA EARLE, individually and
as the Personal Representative of the
ESTATE of ANNIE EARLE, deceased,
Plaintiff,
v.

CIVIL ACTION NO. 3:14-29536

CITY OF HUNTINGTON, d/b/a CITY OF
HUNTINGTON POLICE DEPARTMENT,
a municipal corporation, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Amend the Third Amended Complaint
(ECF No. 255). Defendants filed two separate responses in opposition to this motion (ECF Nos.
258, 260), and the Court granted an extension for Plaintiff to file a reply (ECF Nos. 266, 267) to
March 31, 2017. To date, Plaintiff has failed to file a reply or request for another extension. The
Court has thoroughly reviewed Defendants’ concerns regarding another amended complaint and
agrees that such amendment would be futile. Accordingly, the Court GRANTS in part and
DENIES in part Plaintiff’s Motion to Amend (ECF No. 255). As no party objected to the
dismissal of Ted Grant as a defendant, the Court will allow Plaintiff to dismiss Ted Grant as a
party, but the Court DENIES Plaintiff’s Motion as to the other requested amendments.
To amend a pleading after the scheduling order’s deadline has passed, the party seeking
amendment must satisfy both Federal Rule of Civil Procedure 16(b)’s good cause standard for
modifying the scheduling order and Rule 15(a)(2)’s standard for amending pleadings.

See

Stewart v. Coyne Textile Servs., 212 F.R.D. 494, 496 (S.D.W. Va. 2003); see also RFT Mgmt. Co.,
LLC v. Powell, 607 F. App'x 238, 242 (4th Cir. 2015); Stanley v. Huntington Nat’l Bank, 492 F.
App'x 456, 461 (4th Cir. 2012); Montgomery v. Anne Arundel Cty., 182 F. App'x 156, 162 (4th
Cir. 2006). In this case, the Scheduling Order set March 30, 2015 as the deadline to amend
pleadings. See Scheduling Order, ECF No. 44. Although Plaintiff can meet the Rule 16(b)
standard, Plaintiff has failed to satisfy Rule 15(a)(2)’s standard for amending pleadings.
Applying Rule 16(b), the Court finds that Plaintiff acted with appropriate diligence in
requesting these amendments. “Rule 16(b)’s ‘good cause’ standard primarily considers the
diligence of the party seeking the amendment.” Nester v. Hampton Inn Princeton, Civ. No. 1:1303336, 2013 WL 5425123, at *2 (S.D.W. Va. Sept. 26, 2013) (citations omitted); see also Essential
Hous. Mgmt., Inc. v. Walker, 166 F.3d 332 (4th Cir. 1998) (noting 16(b) considers diligence of
party seeking amendment, not lack of bad faith or prejudice to opposing party). Here, Plaintiff
seeks to amend the complaint to add three claims against current Defendants: (1) additional
negligence claim via agency theory in Count X against Defendant St. Mary’s Medical Center, Inc.
(Defendant St. Mary’s) for the doctors’ conduct in the ED Group; (2) factual allegations against
Defendant Patrick Watkins (Defendant Watkins) in Count VII for false imprisonment; and (3) an
additional fraud claim against Defendant Watkins in Count VIII. See Pl.’s Mot. to Am., ECF No.
255, at 2. Plaintiff argues that her counsel acted diligently seeking these amendments because the
information became available only after deposing Dr. Anna Corbin and Dr. Gregory Clarke and
after a discovery extension revealed personnel files on Defendant Watkins. Id. at 2-3.
Defendant Watkins did not object to Plaintiff’s diligence in seeking amendment for the two
counts against him. Defendant St. Mary’s, on the other hand, argues that Plaintiff failed to act
diligently regarding the negligence claim. See Def. St. Mary’s Resp. in Opp., ECF No. 258, at 11-

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13.

Defendant St. Mary’s argues that Plaintiff’s expert, Dr. Chad Kovala, identified the

physicians’ failure to meet the proper standard of care prior to the depositions of Dr. Clarke and
Dr. Corbin. Id. at 11-12 (noting that Dr. Kovala alluded to these violations in expert report).
Defendant St. Mary’s also asserts that a proper review of the medical record would have brought
these new allegations to light and that Plaintiff’s untimely amendment is too late to satisfy the
diligence standard. Id. at 13. Dr. Kovala, however, explained in his deposition that the new
allegations did not develop until he could review the doctors’ depositions along with the medical
record. See Pl.’s Mot. to Am., ECF No. 255, at 3. The Court, therefore, finds that Plaintiff has
satisfied the 16(b) standard for diligence.
Even with diligence satisfied though, the Defendants make it clear that Plaintiff cannot
meet Rule 15(a)(2)’s standard for amending pleadings. According to Rule 15(a)(2), “a party may
amend its pleading [after the time for amendments as a matter of course] 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). A court should deny a motion to amend only if “the
amendment would be prejudicial to the opposing party, there has been bad faith on the part of the
moving party, or amendment would be futile.” Mayfield v. Nat’l Ass’n for Stock Car Auto Racing,
Inc., 674 F.3d 369, 379 (4th Cir. 2012) (citation omitted); see also Equal Rights Ctr. v. Niles Bolton
Assocs., 602 F.3d 597, 603 (4th Cir. 2010). The Court finds that the three requested amendments
against Defendant St. Mary’s and Defendant Watkins would be futile if permitted.
Defendant St. Mary’s asserts various reasons why Plaintiff’s amendment for negligence
under an agency theory would be futile, and Plaintiff did not respond to any of these arguments.
The Court agrees with Defendant St. Mary’s that allowing the amendment to assert negligence for
actions taken by the ED Group would fail to state a claim because the ED Group is independent

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from the hospital. According to West Virginia law, “[a] health care provider may not be held
vicariously liable for the acts of a nonemployee pursuant to a theory of ostensible agency unless
the alleged agent does not maintain professional liability insurance ….” W. Va. Code § 55-7B9(g). Defendant St. Mary’s details that the ED Group is an independent staffing group—outside
of the control of Defendant St. Mary’s—and has its own professional liability coverage. Def. St.
Mary’s Resp. in Opp., ECF No. 258, at 17. In Cunningham v. Herbert J. Thomas Memorial
Hospital, the Supreme Court of Appeals of West Virginia determined that a hospital could not be
held vicariously liable for the actions of independent physicians. 737 S.E.2d 270, 277-81 (W. Va.
2012). The contract between Defendant St. Mary’s and Premier Health Care Services, Inc. (the
entity supplying people for the ED Group) demonstrates that the ED Group is similarly situated to
the independent group of physicians in Cunningham. See Exh. N, ECF No. 258-14. Therefore,
an additional negligence claim based on agency over the ED Group would be futile. Moreover,
Plaintiff offered no explanation as to how she could maintain another claim against Defendant St.
Mary’s without following the prerequisite notice requirements in West Virginia Code § 55-7B-6.
For these reasons, the Court finds that an additional negligence claim based on agency would be
futile.
Regarding Defendant Watkins, Plaintiff seeks to add factual allegations to the false
imprisonment claim and an additional claim for fraud. However, this Court dismissed the claim
for false imprisonment against Defendant Watkins in a previous Order and will not allow Plaintiff
to make another attempt to assert the same allegations. See Mem. Op. & Order, ECF No. 103, at
9. Moreover, as stated in that Order, the Court has recognized that Defendant Watkins falls under
the immunity for personal tort liability afforded to employees of political subdivisions. See id. at
8-9. At that time, this Court stated that “the described conduct of … Patrick Watkins cannot be

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classified as anything but allegedly negligent.” Id. at 9. Plaintiff’s request to include additional
factual allegations against Defendant Watkins does not transform his alleged negligence into
willful or wanton misconduct to remove immunity. See W. Va. Code § 24-6-8 (“A public agency
or a telephone company participating in an emergency telephone system or … employee of the
public agency, telephone company or county is not liable for damages in a civil action for injuries,
death or loss to persons or property arising from any act or omission, except willful or wanton
misconduct ….”) (emphasis added). Although Plaintiff uses the phrase “willful and wanton” to
describe Defendant Watkins’s actions, the Court does not find the new factual allegations to rise
to that level. At most, Defendant Watkins’s conduct was reckless, but that still falls under
immunity protection. As the Court finds that Plaintiff’s additional factual assertions do not raise
Defendant Watkins’s conduct to a level of willful or wanton misconduct, a claim for fraud must
fail. Accordingly, an amendment to include these allegations would be futile.
In sum, the Court GRANTS in part and DENIES in part Plaintiff’s Motion to Amend
(ECF No. 255), allowing only the dismissal of Ted Grant as a defendant. Plaintiff’s requested
amendments against Defendant St. Mary’s and Defendant Watkins cannot meet the standards of
Federal Rule 15(a)(2) and are DENIED as futile.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

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April 20, 2017