United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
case concerns a traffic stop of Rodney Hubbard and his mother
Samantha Hubbard, the Plaintiffs. They allege Andrew Holmes,
one of the Defendants, stopped their car and engaged in an
extended search because they are African-American. Defendants
moved to dismiss the case, and Plaintiffs responded by filing
their first amended complaint. (Dkt. 15). Defendants then
filed a second motion to dismiss. Judge Conrad granted the
motion in part on November 17, 2016, dismissing the first
four counts as insufficiently pled, but allowing the fifth
count to survive. (Dkt. 23). The surviving count alleges a
denial of equal protection, based on Defendants' alleged
racially selective enforcement of the law.
months later, Plaintiffs moved to amend their complaint again
to remedy some of the problems been identified by Judge
Conrad. (Dkt. 32). That motion is now before the Court.
Defendants oppose the motion, arguing the new allegations
still do not state a claim and reintroduction of these claims
would prejudice Defendants. The Court finds the amendment
would prejudice Defendants and would require changes to the
scheduling framework established by Judge Conrad, and so the
motion will be denied.
party's freedom to amend their pleadings evolves over the
lifecycle of a case. At the beginning, parties may amend
“as a matter of course.” Fed.R.Civ.P. 15(a)(1).
And even after the time frame anticipated by Rule 15(a)(1)
has passed, leave to amend a pleading should be freely given
“when justice so requires.” Id. at
15(a)(2); Foman v. Davis, 371 U.S. 178, 182 (1962)
(“[T]his mandate is to be heeded.”). The Fourth
Circuit has interpreted this to mean “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.” Balas v. Huntington Ingalls
Indus., Inc., 711 F.3d 401, 409 (4th Cir. 2013)
(emphasis in original, internal quotations omitted). But the
longer parties delay, the more likely the proposed amendment
will prejudice the nonmovant. See Equal Rights Ctr. v.
Niles Bolton Assocs., 602 F.3d 597, 604 (4th Cir. 2010)
(“We find compelling the court's analysis that the
amendment-coming so belatedly-would change the nature of the
litigation and, would therefore, prejudice Niles
Bolton.”). And so “[b]elated claims which change
the character of litigation are not favored.” Deasy
v. Hill, 833 F.2d 38, 42 (4th Cir. 1987).
when a belated amendment would require a court to modify the
existing scheduling order, the court's evaluation of the
proposed amendment changes in kind. This is because
“Rule 16(b) provides that ‘a schedule shall not
be modified except upon a showing of good cause and by leave
of the district judge.'” Nourison Rug Corp. v.
Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (discussing
the tension between Rule 15 and Rule 16). “[A]fter the
deadlines provided by a scheduling order have passed, the
good cause standard must be satisfied to justify leave to
amend the pleadings.” Id.
motion to amend was filed before the deadline established by
Judge Conrad, (dkt. 29 at ¶ 12), and so this analysis
begins with Rule 15(a)(2). Under that rule, the three primary
questions for this Court are whether Plaintiffs acted with
bad faith, amendment would be futile, or Defendants would be
prejudiced. Balas, 711 F.3d at 409. There is no
evidence of bad faith before the Court, and so that potential
bar to amendment is summarily dispensed. The Court moves on
to the second two questions, before independently addressing
concerns arising under Rule 16(b)(4).
first argue the proposed counts would be futile. However, in
so arguing, Defendants primarily attempt to rebut the
allegations with evidence adduced through discovery. (Dkt. 34
at 3-5). But the futility inquiry concerns whether the
allegations themselves would state a claim, not whether they
may eventually prove unfounded or whether Defendants may
possess valid defenses. See Balas, 711 F.3d at 410.
Accordingly, the Court assumes the amendments would not be
futile, and instead focuses on whether Defendants would be
prejudiced by amendment.
Court finds amendment at this stage would prejudice
Defendants. “Whether an amendment is prejudicial will
often be determined by the nature of the amendment and
its timing.” Laber, 438 F.3d at 427
(emphasis added). “A common example of a prejudicial
amendment is one that raises a new legal theory that would
require the gathering and analysis of facts not already
considered by the defendant, and is offered shortly before or
during trial.” Id. (internal alterations,
citations, and quotation marks omitted). This is the
situation now before the Court. See also Equal Rights
Ctr., 602 F.3d at 603-04 (4th Cir. 2010) (“[T]he
district court held that the addition of a contribution claim
after the close of a three-year long discovery process and on
the eve of the deadline for dispositive motions would have
required it to reopen discovery and thereby prejudice Niles
Bolton. . . . We hold that the district court did not abuse
its discretion in finding the proposed amendment would be
unduly prejudicial to Niles Bolton.”).
problematically here, Defendants have not had an opportunity
to interrogate Plaintiffs' new allegations through
discovery and would not be able to seek summary judgment on
those claims without an amendment of the Court's
scheduling order. In the proposed amended complaint,
Plaintiffs allege Defendant Holmes told them he pulled them
over because he found it suspicious that Plaintiffs had
slowed when they passed him. (Dkt. 32-1 at ¶ 6).
Plaintiffs deny they were speeding. (Id. at ¶
7). Plaintiffs also allege Defendant Holmes asserted he
smelled marijuana in the vehicle. (Id. at ¶ 8).
Plaintiffs deny there was any smell of marijuana in the
vehicle. (Id. at ¶ 9). Plaintiffs allege
Defendant Holmes put handcuffs on Plaintiff Rodney Hubbard,
although Plaintiff had no bulges on his person suggesting
possession of a weapon. (Id. at ¶ 11). Each of
these facts would be relevant to the new claims. Each of
these facts would also have been available to Plaintiffs both
when they filed the first amended complaint and during the
fifteen months that passed after Judge Conrad's motion to
dismiss opinion, but Plaintiffs made no allegations about
whether they were in fact speeding or whether their car
smelled liked marijuana in the original complaint.
reasonable litigant in Defendants' position would have
sought to delve more deeply into the newly-alleged facts. For
example, the complaint alleges “Plaintiff had not
exceeded the speed limit.” (Dkt. 32-1 at ¶ 7). But
Defendants represent they “did not pursue discovery
related to whether Officer Holmes' stop of Plaintiffs was
constitutional under the Fourth Amendment because Fourth
Amendment claims did not exist at the time of
discovery.” (Dkt. 34 at 8). While Defendant Holmes did
already provide deposition testimony about when and where he
believed Plaintiffs were speeding, it is certainly true that
evidence about if and when Plaintiffs were speeding becomes
more important with the proposed Fourth Amendment claim. The
basis for new Plaintiffs' new denial of any speeding
would be central to any determination of whether Defendant
Holmes had probable cause.
Defendants state they would hire an expert to defend these
new claims. While expert testimony may be unnecessary for
some parts of Defendants' case, this Court has previously
admitted experts to testify about whether law enforcement
practices conformed to best practices in excessive force
claims. See, e.g., Wyatt v. Owens, 317 F.R.D. 535,
543 (W.D. Va. 2016) (allowing expert testimony on excessive
force claims), reconsideration denied, No.
7:14-CV-00492, 2016 WL 6651410 (W.D. Va. Nov. 10, 2016).
Similar testimony may be admissible here.
respond by arguing the stop remains at the center of all the
claims, and so there are “no ‘new' facts to
explore.” (Dkt. 33 at 2). But even if the same events
are at the center of both claims, the new claims make
different aspects of those events more relevant. The primary
problem here is Plaintiffs' belated motion to amend
removes Defendants' ability to investigate their case as
they see fit. ...