Collins v. Lowe's Home Centers, LLC et al

Filing 103

MEMORANDUM OPINION AND ORDER denying Plaintiff's 65 MOTION for Leave to Amend Complaint and Add Additional Defendant. Signed by Judge Robert C. Chambers on 6/21/2018. (cc: counsel of record; any unrepresented parties) (hkl)

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

SEAN C. COLLINS,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-1902

LOWE’S HOME CENTERS, LLC, and
SCOTT HORSFIELD, individually and as
Manager of Lowe’s Home Centers, LLC,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Sean C. Collins’ Motion for Leave to Amend
Complaint and to Add Additional Defendant. ECF No. 65. For the following reasons, the Court
DENIES the motion.

On December 2, 2016, Plaintiff was terminated from his employment with
Defendant Lowe’s Home Centers, LLC. Thereafter, on March 16, 2017, Plaintiff filed this action,
alleging his termination interfered with his rights under the Family and Medical Leave Act
(FMLA), constituted discrimination and retaliation for exercising his rights under the FMLA,
violated the West Virginia Human Rights Act’s (WVHRA) prohibition against disability
discrimination, was retaliatory in violation of West Virginia public policy, and violated West
Virginia’s Wage and Payment Collection Act. On June 28, 2017, the parties stipulated to dismiss
the Wage and Payment Collection Act claim. In addition, on December 7, 2017, the Court
dismissed Plaintiff’s claim of retaliatory discharge (the Harless claim) premised upon the

WVHRA. Collins v. Lowe’s Home Centers, LLC, No. 3:17-1902, 2017 WL 6061980, at *1 (S.D.
W. Va. Dec. 7, 2017). 1 Thus, at this point, Plaintiff’s remaining claims implicate the FMLA and
disability discrimination.

In the current motion, however, Plaintiff seeks to amend his Complaint to add a
new defendant and a new theory of his case. Specifically, Plaintiff alleges that in November 2016
he spoke with John Osborn, a Director of Human Resources at Lowe’s, about Defendant Scott
Horsfield, the store manager where Plaintiff worked. Proposed Am. Compl. at ¶¶ 4, 5, & 17. ECF
No. 65-4. During the conversation, Plaintiff alleges he reported to Mr. Osborn “that Defendant
Horsfield had discriminated and/or harassed female employees of Lowe’s.” Id. at ¶17. Plaintiff
asserts that Mr. Osborn “routinely protected Defendant Horsfield from various complaints that
were made against him,” and Mr. Osborn told Defendant Horsfield what Plaintiff said. Id. at ¶¶
64-65. Shortly after this conversation occurred, Plaintiff alleges Mr. Osborn told Defendant
Horsfield to fire him. Id. at 65. Plaintiff’s new theory is that his termination was in retaliation for
him reporting Defendant Horsfield’s conduct, and he seeks to add Mr. Osborn as a defendant. Id.
at ¶¶67-77.

Plaintiff’s counsel asserts that they did not know about this information until after
Plaintiff was deposed on October 23, 2017. At his deposition, Plaintiff was questioned about notes
from the meeting he had with Mr. Osburn, which were disclosed by Defendant on October 20,
2017. Tr. of Depo. of Sean Collins, at 91-95, ECF No. 71-1. 2 These notes apparently were taken

1

The Court permitted the Harless claim premised upon the FMLA to continue. Id.

2

Plaintiff stated he had not seen the notes prior to being presented a copy of them at his
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by another Lowe’s employee who was in the room with Plaintiff and Mr. Osburn. The notes appear
to be a detailed account of the conversation. In reading the notes, it is evident that the vast majority
of the conversation involved personality conflicts and work issues unrelated to any claim that
Defendant Horsfield had discriminated against and/or harassed female employees. At one point,
the notes provide that Plaintiff said: “There was some craziness here at the store around that time
where Scott [Horsfield] was accused of some things, 2 weeks later he fired those associates after
he was found not guilty.” Interview with Sean Collins, at 1, ECF No. 71-2.

In the current motion, counsel states that, “[f]ollowing his deposition, Plaintiff
shared with counsel that he was referring to two women in the report, one whom was transferred
and the other terminated, following the investigation involving alleged inappropriate relationships
with Defendant Horsfield.” Mot. for Leave to Am. Compl. and to Add Additional Def., at ¶6. After
learning this information for the first time, Plaintiff’s counsel represent that they began an
investigation. Id. at ¶7. On February 15, 2018, Plaintiff deposed Defendant Horsfield and
questioned him about the two female employees. Id. at ¶9. At the deposition, Defendant Horsfield
said that Lowe’s investigated him for allegedly having a sexual relationship with the two women,
and he denied the allegations. Tr. of Depo. of Scott Horsfield, at 109, 110, & 113, ECF No. 71-3.
Defendant Horsfield also stated that one of the women was fired sometime later for falsifying time
and the other woman transferred to another store to be closer to home. Id. at 111 & 114.

Thereafter, Plaintiff sought additional discovery from Defendants related to
Defendant Horsfield’s alleged affairs with the two women. On April 5, 2018, Defendants objected

deposition. Id. at 91.
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to the discovery and filed a Motion for a Protective Order, arguing it was not related to Plaintiff’s
FMLA or disability discrimination claims. 3 A week later, on April 12, 2018, Plaintiff filed the
current motion to amend. A week after filing that motion, Plaintiff responded to Defendants’
Motion for a Protective Order. In his Response, Plaintiff argued, inter alia, that the discovery issues
are now moot because he has sought to amend the Complaint to add a claim of retaliation and to
add Mr. Osburn as a defendant. Resp. on behalf of Sean Collins, at 1, ECF No. 67. In opposing
Plaintiff’s motion, Defendant argues Plaintiff cannot meet the standards for amendments under
either Rule 16(b) or 15(a) of the Federal Rules of Civil Procedure.

With respect to the proposed amendment, 4 the Court entered a Scheduling Order
on June 6, 2017, setting an August 10, 2017 deadline for amended pleadings. When, as here, a
plaintiff seeks to amend a complaint after the deadline has passed, the plaintiff must satisfy the
requirements of both Rule 16(b) and Rule 15(a). Pursuant to Rule 16(b)(4), “[a] schedule may be
modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). On the other
hand, Rule 15(a) provides that “[t]he court should freely give leave when justice so requires.” Fed.
R. Civ. P. 15(a), in part.

In applying these Rules, district courts have used a two-step analysis: “‘(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).’” Matheny v.

3

In their Motion for a Protective Order, Defendants also objected to Plaintiff’s request for
additional electronically stored information.
4

The Honorable Cheryl A. Eifert, Magistrate Judge, ruled upon the Motion for a Protective
Order. ECF No. 80.
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L.E. Myers Co., No. 2:16-CV-09304, 2018 WL 1095584, at *2 (S.D. W. Va. Feb. 26, 2018)
(quoting 3-16 Moore's Federal Practice—Civil § 16.13 (2015); other citation omitted). “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 Cty., 182 Fed. Appx. 156, 162 (4th Cir. 2006) (citation omitted). If a plaintiff
demonstrates “good cause,” the motion still may be denied under Rule 15(a) “where it would be
prejudicial, there has been bad faith, or the amendment would be futile.” Nourison Rug Corp. v.
Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citation omitted). Ultimately, whether to grant a
motion for leave to amend rests within this Court’s discretion. Foman v. Davis, 371 U.S. 178, 182
(1962).

In this case, the Court finds Plaintiff has failed to act diligently and has not
established a good cause reason for his delay. At the time he was terminated on December 2, 2016,
Plaintiff knew he had just recently complained to Mr. Osburn about Defendant Horsfield. Plaintiff
asserts he told Mr. Osburn about sexual misconduct. Despite having this knowledge, Plaintiff
apparently failed to mention the event to his counsel until after his deposition in October of 2017,
approximately seven months after he filed his Complaint. Once counsel learned of this
information, however, a motion to amend was not filed for another five months, which was nearly
two months after Defendant Horsfield was deposed. It was not until Defendants opposed discovery
on issues related to the alleged sexual misconduct as being beyond the scope of the original
Complaint that Plaintiff decided to seek amendment. At that point, it was thirteen months after the

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original complaint was filed and eight months after the deadline set forth in the Scheduling Order.
Additionally, it was filed just two months prior to the deadline for dispositive motions. 5

The Court finds the delay here is directly attributable to Plaintiff’s own lack of
diligence. Although Plaintiff’s counsel argue they were actively investigating Plaintiff’s new
potential claim after they learned of it, it does not excuse the fact that Plaintiff himself failed to
give them the information until after his deposition. Moreover, once counsel was informed, it was
still months before an amendment was sought. At the very latest, Plaintiff was aware at the time
of Defendant Horsfield’s deposition of the names of women allegedly involved in the affairs.
Additionally, Defendant Horsfield stated during his deposition that he denied the allegations when
he was questioned as a part of an internal investigation by Defendant Lowe’s, and Defendant
Horsfield gave an explanation of why the women were no longer working at his store. Despite this
knowledge, Plaintiff did not file his motion for another two months. Under these circumstances,
the Court finds Plaintiff’s motion falls far short of what is required under Rule 16(b)’s good cause
standard. Having found Plaintiff failed to act diligently and satisfy the requirements of Rule
16(b)(4), it is unnecessary for the Court to analyze his motion under Rule 15(a).

Accordingly, for the foregoing reasons, the Court DENIES Plaintiff’s Motion for
Leave to Amend Complaint and to Add Additional Defendant. ECF No. 65.

5

An Amended Scheduling Order entered on March 28, 2018, setting the deadline for
dispositive motions on June 15, 2018. ECF No. 60. Defendants filed a Motion for Summary
Judgment on that day. Trial is currently set for August 7, 2018.
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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
ENTER:

June 21, 2018

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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