United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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
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
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.
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)).
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. 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
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 ...