United States District Court, W.D. Virginia, Lynchburg Division
K. MOON UNITED STATES DISTRICT JUDGE
case is before the Court on Plaintiff's motion for leave
to amend her complaint to add a defamation claim. Previously,
the Court dismissed that claim with prejudice because the
Complaint failed to identify the allegedly defamatory
statements. In support of the motion, Plaintiff now attaches
the allegedly defamatory “Confidential Professional
Reference Report” (Report), statements in which about
Plaintiff are arguably attributable to one of the City's
employees, Lynchburg Fire Department Captain Darrel Hamlett.
Viewed in Plaintiff's favor, the Report is a record of
statements made by Captain Hamlett to someone denominated by
the proposed amendment as a consultant. Yet the motion fails
because the proposed amendment is futile. The claim is barred
by sovereign immunity; the Report contains statements of
opinion rather than fact; and performance reviews are
protected by a qualified privilege.
STANDARD OF REVIEW
to amend a pleading should be freely given “when
justice so requires.” Fed.R.Civ.P. 15(a). The Supreme
Court has declared that “this mandate is to be
heeded.” Foman v. Davis, 371 U.S. 178, 182
(1962). “[L]eave 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.”
Balas v. Huntington Ingalls Indus., Inc., 711 F.3d
401, 409 (4th Cir. 2013) (emphasis in original, internal
DELAY EVINCING BAD FAITH
City-which is the only remaining defendant in the case (dkt.
33 at 5-6)-contends that the motion should be denied due to
bad faith. This argument is based on the fact that, by the
motion's own admission, Plaintiff possessed the Report by
at least June 2017, if not earlier. (Dkt. 41 at ECF 2; dkt.
42 at 7-8). Yet she waited several weeks, until September 7,
2017, to move for leave to amend. (Dkt. 41).
dilatory as Plaintiff's actions may have been, delay is
not tantamount to bad faith as a matter of law. See
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509-10 (4th
Cir. 1986). “Delay alone is an insufficient reason to
deny leave to amend.” Int'l Paper Co. v.
Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d
411, 420 (4th Cir. 2000). “Rather, the delay must be
accompanied by prejudice, bad faith, or futility.”
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th
Cir. 1999). Because the City does not posit any indicators of
bad faith apart from delay, the Court proceeds to its
arguments on futility.
Sovereign Immunity Bars the Claim.
municipality in Virginia “is immune from liability for
intentional torts committed by an employee during the
performance of a governmental function.” Niese v.
City of Alexandria, 264 Va. 230, 239 (Va. 2002). State
and federal courts in Virginia have applied this principle to
dismiss defamation claims against localities, a result which
seems apt here. See Conley v. Town of Elkton, No.
CIV.A. 5:04CV00030, 2005 WL 415897, at *10 (W.D. Va. Feb. 22,
2005) (applying sovereign immunity to statements by police
chief about former officer's conspiratorial plans to
disrupt department); Lohdi v. Fairfax Cty./Bd. of
Sup'rs, No. 1:12-CV-1108 JCC/JFA, 2012 WL 6691539,
at *3-4 (E.D. Va. Dec. 21, 2012); Shumate v. City of
Martinsville, 90 Va. Cir. 122, at *1 (Martinsville Cir.
Ct. 2015), aff'd, No. 151285, 2016 WL 5327477
(Va. Sept. 22, 2016); Shumate v. City of
Martinsville, No. 151285, 2016 WL 5327477, at *4 (Va.
Sept. 22, 2016) (Mims, J., concurring in relevant part).
only issue is whether Captain Hamlett's statements were
made in the performance of a governmental function.
A function is governmental if it is directly tied to the
health, safety, and welfare of the citizens. Stated another
way, a governmental function involves the exercise of an
entity's political, discretionary, or legislative
Niese, 264 Va. at 239 (internal quotations and
citations omitted). Niese reveals that governmental
functions are broadly defined. It held that “the
maintenance of a police force is a governmental
function” and that human resource matters are “an
integral part of the governmental function of maintain a
police force, ” id. at 240, conclusions which
equally hold for a fire department.
facts alleged in the proposed amendment are scant. But they,
like the Report, refer to Hamlett specifically in an official
capacity, as “Captain” of the “Lynchburg
Fire Department.” (Dkt. 41-1 ¶ 79; see
Id. ¶ 80). The Report likewise is concerned with
Plaintiff's performance during her employment with the
Fire Department. The Court holds that, where a supervisor is
contacted in his official capacity to provide a performance
review of a former employee, the ...