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Briggman v. Nexus Services Inc.

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

December 11, 2018

DAVID B. BRIGGMAN, et al, Plaintiffs,
NEXUS SERVICES INC., etal. Defendants.



         This matter comes before the court on plaintiffs David B. Briggman, Tarda Cortes, and Richard W. Nagel's (collectively, "Plaintiffs") Second Motion for Leave to Amend Complaint (the "Second Motion"), ECF No. 23. For the reasons discussed below, the Second Motion will be DENIED without prejudice insofar as Plaintiffs seek to add state malicious prosecution claims, DENIED with prejudice insofar as Plaintiffs seek to add state claims based on Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985), and GRANTED insofar as Plaintiffs seek to add federal claims under 18 U.S.C. §§ 2701 and 2707.

         I. Background

         Plaintiffs are former employees of Nexus Services, Inc. ("Nexus"). Plaintiffs originally brought suit against Nexus, Michael Paul Donovan, the CEO of Nexus, and Erik G. Schneider, the Chief Risk Management Officer of Nexus (collectively with Nexus and Donovan, "Defendants"), for violations of federal and state wiretapping statutes. Compl., ECF No. 1, ¶¶ 23-42.

         Subsequently, Plaintiffs filed a Motion for Leave to File an Amended Complaint (the "First Motion"), ECF No. 18. Over a month later, after Defendants opposed the First Motion, Plaintiffs filed a Motion to Withdraw First Motion for Leave to File Amended Complaint (the "Motion to Withdraw"), ECF No. 22. Simultaneously with the Motion to Withdraw, Plaintiffs filed the Second Motion.[1]

         Plaintiffs' proposed amended complaint (the "Amended Complaint" or "Am. Compl.") contains ten counts: (1) an existing claim for unlawful interception of oral and wire communications under 18 U.S.C. §§ 2511 and 2520; (2) an existing claim for unlawful interception, disclosure, or use of oral communications under Virginia Code §§ 19.2-62 and -69; (3) a new claim for unlawful access and procurement of stored communications under 18 U.S.C. §§ 2701 and 2707 (the "New Federal Claims"); (4) a new claim for wrongful termination/constructive discharge/hostile workplace (the "Bowman Claim"); and (5)- (10) new claims for common law malicious prosecution (the "Malicious Prosecution Claims").

         Defendants argue that they will be unfairly prejudiced if the court grants the Second Motion. Defendants also contend that the court should deny the Second Motion as the Bowman Claim and the Malicious Prosecution Claims are futile. Defendants do not, however, argue that the New Federal Claims are futile.

         II. Second Motion to Amend

         Plaintiffs do not satisfy the timing requirements of Federal Rule of Civil Procedure 15(a)(1), and therefore may only amended "with with opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). Nonetheless, "[t]he court should freely give leave when justice so requires." Id. The Fourth Circuit has "interpreted Rule 15(a) to provide 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 have been futile.'" Laber v. Harvey, 438 F.3d 404, 426 (4th Or. 2006) (en banc) (quoting Johnson v. Oroweat Foods Co, . 785 F.2d 503, 509 (4th Cir. 1986)).

         A. Prejudice

         In the amendment context, "prejudice" means "undue difficulty in prosecuting a lawsuit as a result of a change of tactics or theories on the part of the other party." Peters v. Bankof Am..N.A.. No. 3:14-cv-513, 2015 WL 269424, at *3 (E.D. Va. Jan. 21, 2015) (quoting Lundy v. Adamar of N.J.. Inc.. 34 F.3d 1173, 1189 n.8 (3d Cir. 1994)).

         Defendants' prejudice arguments take two forms. First, Defendants complain that "[o]f the proposed eleven (11) causes of action in the Amended Complaint, eight (8) are on behalf of Briggman alone and one (1) is brought by Briggman and Cortes (but not Nagel); only two (2) claims are pursued by all three Plaintiffs collectively." Defs.' Opp. Pls.' Mot. Withdraw Mot. Leave File Am. Compl. (the "Opposition" or "Opp."), ECF No. 24, at 7. Defendants never explain why the party structure amounts to prejudice sufficient to deny the Second Motion, however. Numerous complex cases have party structures at least as complicated; add in counterclaims, third-party claims, and interpleader, and the Proposed Amended Complaint looks simple in comparison.

         Defendants also complain that the Proposed Amended Complaint "transform[s] Plaintiffs' case from a straightforward wiretapping case consisting of four counts to an eleven-count complaint implicating numerous unrelated state and federal laws and factual circumstances." Id.

         That might be the case, and that might constitute prejudice if this case were deep in the throes of discovery. But Plaintiffs represent that discovery has yet to begin. Indeed, Plaintiffs' First Motion was filed less than a month after Defendants answered the Complaint. The court finds that adding additional claims this early in the case does not amount to prejudice.

         B. Malicious Prosecution

         The parties' briefs do not discuss a threshold question: whether the court has subject-matter jurisdiction to entertain the Malicious Prosecution Claims. If the court has concerns that subject-matter jurisdiction does not exist over claims, the court has a duty to raise jurisdiction sua sponte. See Brickwood Contractors, Inc. v. Datanet Eng'g. Inc., 369 F.3d 385, 390 (4th Cir. 2004) ("[Q]uestions of subject-matter jurisdiction may be raised at any point during the proceedings and may (or, more precisely, must) be raised sua sponte by the court.").

         Section 1367 allows the court to exercise supplemental jurisdiction over state-law "claims that are so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a). The test for determining if the state-law claims "form part of the same case or controversy" is the familiar test from United Mine Workers of America v. Gibbs, "The state and federal claims must derive from a common nucleus of operative fact." 383 U.S. 715, 725 (1966); see also Axel Johnson. Inc. v. Carroll Carolina Oil Co.. 145 F.3d 660, 662 (4th Cir. 1998) (applying Gibbs to Section 1367).

         The "common nucleus of operative fact" rubric requires more than "superficial factual overlap" between the federal and state claims. Shavitz v. Guilford Cty. Bd. of Educ, 100 Fed.Appx. 146, 150 (4th Cir. 2004) (per curiam). Instead, courts "must dig deeper and determine whether the state and federal claims have an essential element of proof in common." Schaller v. Gen. Dynamics Corp.. No. 1:13-cv-658, 2013 WL 5837666, at *3 (E.D. Va. Oct. 28, 2013). This requires that both the federal and the state claims "revolve around a central fact pattern." White v. County of Newberry. S.C.. 985 F.2d 168, 172 (4th Cir. 1993).

         The Malicious Prosecution Claims are state claims. See Thomas v. Lamanque,986 F.Supp. 336, 337-38 (W.D. Va. 1997). The parties are not diverse. See Am. Compl. ¶¶ 5-11. Since complete diversity does not exist between the parties, Plaintiffs rely on 28 U.S.C. § 1367, the supplemental jurisdiction statute, to establish ...

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