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Parker v. Austin

United States District Court, W.D. Virginia, Harrisonburg Division

October 27, 2017

SUSAN VIRGINIA PARKER, et al., Plaintiffs,
MICHAEL AUSTIN, et al., Defendants.



         This matter is before the court on plaintiffs motion for leave to file an amended complaint adding Count Seven, alleging Intentional Infliction of Emotional Distress. ECF No. 111. Count Seven is not premised on new facts, and could have been included as a count more than three years ago when die original complaint was filed. Further, it was filed after the close of discovery and jurisdictional remand from the court of appeals. As such, it comes far too late. Moreover, the proposed amendment is futile as it fails to plausibly state a claim for relief. Accordingly, the motion for leave to amend will be DENIED.

         In this action, plaintiffs contend that two children were unconstitutionally removed from the home of their parents and placed in the Henry & William Evans Home for Children, Inc. ("Evans Home"), where they received "improper medical treatment and .. . physical and emotional abuse and neglect, " Compl, ECF No. 1, ¶ 1, during their stay there between July 26, 2012 and August 29, 2012. Id., ¶ 67.

         On April 28, 2015, the court granted defendants' motion to dismiss the first five counts of the Complaint, finding no violation of the Fourth or Fourteenth Amendments or any actionable false imprisonment claim. Mem. Op., ECF No. 54. That left only Count Six, alleging a state law tort claim concerning an injured ankle of one of the children.[1]

         A standard scheduling order was entered, and the case was set for trial on February 8-9, 2016. The scheduling order contained a deadline for completion of discovery 90 days prior to trial. On the eve of that deadline, November 6, 2015, plaintiff filed a motion to voluntarily dismiss the remaining state law claim, indicating that he had just attained his majority and taken over management of his case.

The Plaintiffs explanation for the need for voluntary dismissal is quite simple, yet compelling. Plaintiff reached his majority in July 2015 and is now taking over the management of his case from his mother and father. In the last month or so, Plaintiff has determined that if he is not able to settle with Defendants, he wishes to pursue whatever appeal rights he may have of the federal claims. He also wishes to have the ability to re-file the state law claims in state court if he decides to pursue them at another rime. He wishes to have the voluntary dismissal before incurring too many expenses in the current case, and also wishes to make sure that he is pursuing the claims that he thinks are in his best interest in this matter. He also wishes to avoid the need to request amendment of his pleadings at this stage of this case. This would have the potential for delay in this court of the trial date, as well as a delay in the adjudication of the appeal of his federal claims, now that he is managing his own case.

Mem. in Supp. of Mot. for Voluntary Dismissal, ECF No. at 3-4.

         Thereafter, the parties submitted an agreed order voluntarily dismissing Count Six, which the court entered on November 25, 2015. ECF No. 94. On December 21, 2015, plaintiffs appealed the order dismissing Counts One through Five. ECF No. 95. On June 6, 2017, the Fourth Circuit Court of Appeals dismissed the appeal for lack of jurisdiction and remanded the case for completion of the case as to Count Six. ECF Nos. 102, 103. After the mandate issued on June 28, 2017, ECF No. 107, the court held a telephonic conference with counsel and issued a scheduling order on June 29, 2017. ECF No. 110. On July 7, 2017, plaintiffs filed a motion to amend the complaint to add Count Seven, ECF No. 111, to which defendants have objected. ECF No. 113.


         Leave to amend a pleading pursuant to Rule 15(a) of the Federal Rules of Civil Procedure should be "freely granted." Franks v. Ross. 313 F.3d 184, 198 n.15 (4th Or. 2002). "Leave to amend should be given absent some stated reason, such as undue delay, bad faith, futility, or undue prejudice to the opposing party." Red Bird Egg Farms. Inc. v. Pennsylvania Mfrs. Indem. Co.. 15 Fed.Appx. 149, 154 (4th Cir. 2001). Further, a court may deny leave to amend where die proposed amendment is "clearly insufficient or frivolous on its face." Anand v. Ocwen Loan Servicing. LLC. 754 F.3d 195, 200 (4th Cir. 2014) (internal citation omitted). For example, an amendment is futile where the amended pleading could not survive a motion to dismiss. See Perkins v. United States. 55 F.3d 910, 917 (4th Cir. 1995); Miller v. Jack. No. L06-CV-64, 2007 WL 1169179, at *1 (N.D. W.Va. Apr. 19, 2007). In addition, some courts deny leave to amend where the amended pleading could not withstand a motion for summary judgment. See McKay Consulting v. Rockingham Mem'l Hosp.. No. 5:09-CV-00054, 2010 WL 3200061, at *9 (W.D. Va. Aug. 11, 2010); Smith v. EVB. No. 3:09-CV-554, 2010 WL 1253986, at *2 (E.D. Va. Mar. 23, 2010) (citing Steinburg v. Chesterfield Cnty. Planning Comm'n. 527 F.3d 377, 390-91 (4th Cir. 2008)).


         In his motion to amend, plaintiff seeks to add a claim for Intentional Infliction of Emotional Distress based on his stay at the Evans Home from July 26, 2012 to August 29, 2012.[2] Proposed Am. Compl, ECF No. 111-1, ¶¶ 67, 96-106. Three paragraphs of the Statement of Facts section of the original Complaint contain facts bearing on the new Intentional Infliction of Emotional Distress claim alleged in Count Seven of the proposed Amended Complaint.

80. While J and K were confined in the Evans Home, Regan, the Powers and the Rudolphs told J and K that they would not go home again and that they would not live with their parents again, that their parents had not done activities with them or cared about them, causing the children severe anguish and disturbance.
81. While J and K were confined in the Evans Home, the Powers and the Rudolphs, particularly Brent Rudolph, who was most insistent upon it, would require J and K to say ...

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