United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING IN PART MOTION TO ALTER
OR AMEND JUDGMENT)
E. HUDSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Sade Garrett's
("Plaintiff) Motion to Alter or Amend Judgment, filed on
June 5, 2017. (ECF No. 25.) On May 8, 2017, the Court entered
a Memorandum Opinion and Order Granting Defendant Remedi
Seniorcare of Virginia, LLC's ("Defendant")
Motion to Dismiss without prejudice. (ECF Nos. 23, 24.) In
the instant Motion, Plaintiff seeks the Court's leave to
amend her Complaint or, in the alternative, an alteration of
the Court's prior Order, changing the dismissal to one
with prejudice. (Pl.'s Mem. Supp. Mot. Amend or Alter 3,
4, ECF No. 26.)
Complaint alleges that a co-worker, Aaron Try, while acting
within the scope of his employment, made false and defamatory
statements about Plaintiff to other employees. (Pl.'s
First Am. Compl. ¶¶ 19-21, ECF No. 12.) The
allegedly defamatory statements were (1) "Sade was
having surgery on her vagina because she got [a sexually
transmitted disease ("STD")] cause that's the
only reason a female gets surgery on her vagina;" and
(2) "Sade was having a biopsy of her vagina."
(Id. ¶¶ 9-10.) Plaintiff conceded that the
portion of the statements concerning surgery and a biopsy
were not defamatory. (Pl.'s Mem. Opp'n Mot. Dismiss
8, ECF No. 17.) As such, on Defendant's Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), the
Court only considered whether the portion of the statement
regarding Plaintiff having an STD was actionable.
Court held that the statement that Plaintiff had an STD was
merely Try's opinion when considered in context. (Mem.
Op. 5, ECF No. 23.) The only basis for Try's assertion
was his faulty reasoning that STDs are "the only reason
a female gets surgery on her vagina." (Id.)
Therefore, no reasonable person would take his statement to
be anything more than pure conjecture based on that
reasoning. (Id.) Accordingly, the Court granted
Defendant's Motion to Dismiss without prejudice. (ECF No.
now seeks relief pursuant to Federal Rule of Civil Procedure
59(e). (Pl.'s Mem. Supp. Mot. Alter or
Amend.) Rule 59(e) allows a party to move for an alteration
or amendment to a judgment within twenty-eight days of the
judgment. Typically, a Rule 59(e) motion is permissible in
the following situations: "(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice." Ingle
v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006).
case, Plaintiff is using Rule 59(e) as a vehicle to amend her
complaint. The Court may grant post-judgment leave to amend,
but only if "the court first vacates its judgment
pursuant to Fed. R. Civ. P 59(e) or 60(b)." Katyle
v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 470-71
(4th Cir. 2011). "To determine whether vacatur is
warranted, however, the court need not concern itself with
either of those rules' legal standards. The court need
only ask whether the amendment should be granted, just as it
would on a prejudgment motion to amend pursuant to
Fed.R.Civ.P. 15(a)." Id; see Laber v. Harvey,
438 F.3d 404, 429 (4th Cir. 2006) (finding that a plaintiffs
motion to amend should have been granted, despite being filed
post-judgment, because the motion complied with the liberal
standards of Rule 15(a)).
Rule of Civil Procedure 15(a) states, "[t]he court
should freely give leave when justice so requires."
Fed.R.Civ.P. 15(a)(2). The Fourth Circuit interprets this
provision to mean 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] futile."
Laber, 438 F.3d at 426 (quoting Johnson v.
Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986);
see Foman v. Davis, 371 U.S. 178, 182 (1962)
("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'").
present matter, Plaintiff has submitted a copy of her
proposed "Second Amended Complaint." (Proposed
Second Am. Compl., ECF No. 28-1.) Defendant appears to
concede that it would not be prejudiced by the Amendment, and
that the proposed Amendment was not made in bad faith.
(Opp'n. Pl.'s Mot. Alter or Amend, ECF No. 27.)
However, the Court finds that the Amendment would be futile.
Plaintiffs proposed Second Amended Complaint retains the same
deficiencies as the one previously dismissed.
alleged defamatory statement, as pleaded in the proposed
Second Amended Complaint, is identical to that of the First
Amended Complaint. (Proposed Second Am. Compl. ¶ 11
("Sade was having surgery on her vagina because she got
a STD cause that's the only reason a female gets surgery
on her vagina.").) The only changes made by Plaintiff
are additional facts relating to the setting or background of
the incident. For example, Plaintiff asserts Try worked a
nearby machine and found out about her upcoming surgery.
(Id. ¶¶ 8, 9.) She contends that upon
learning this information, Try badgered her about why she was
getting surgery-an inquiry she refused to answer.
(Id. ¶ 10.) She also vaguely alleges that Try
"surrounded his false factual statements about [her]
with false negative sexual innuendoes." (Id.
¶ 12.) Finally, she states that Try "openly
wondered how [Plaintiff] could have gotten an STD if she had
only had one sexual partner, " thereby implying that
Plaintiff had been "recklessly sleeping around and that
she had gotten an STD from such promiscuity."
these additional facts, the statement constituting the basis
of Plaintiff s claim is still based solely on Try's
faulty reasoning that vaginal surgery could only be the
result of an STD. Anyone hearing that statement would know
that it is pure conjecture, not fact. Thus, the proposed
Second Amended Complaint fails to correct the pleading's
fatal deficiency. As such, the proposed Amendment is futile
and does not satisfy the requirements of Rule 15(a). The
Motion will denied to the extent that it seeks leave to file
an Amended Complaint.
based on the Plaintiffs proposed Amendment, the Court
concludes that she is unable to plead any additional words or
context that make the Defendant's statements actionable.
For this reason, the Court will vacate its previous dismissal
order. The Court will grant in part Plaintiffs Motion and
dismiss the case with prejudice.
appropriate order will accompany this memorandum.