United States District Court, W.D. Virginia, Harrisonburg Division
DAVID B. BRIGGMAN, et al, Plaintiffs,
NEXUS SERVICES INC., etal. Defendants.
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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
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
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
Second Motion to Amend
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)).
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.
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
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."
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.
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
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).
"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).
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 ...