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Long v. O'Reilly's Automotive Stores, Inc.

United States District Court, D. South Carolina, Greenville Division

June 23, 2014

Mark Long, Plaintiff,
O'Reilly's Automotive Stores, Inc., R.F. Jones Construction, LLC, Rubin F. Jones, individually, Jerry Trotter Construction, LLC, and Jerry Trotter, Individually, Defendants.


MARY G. LEWIS, District Judge.

This matter is before the court on Plaintiff Mark Long's ("Plaintiff") motion to reconsider and amend, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure and the court's December 12, 2013 order dismissing Plaintiff's negligence per se cause of action. For the reasons set forth below the court denies the motion. (ECF No. 80.)


On March 30, 2012, Plaintiff filed the underlying action against Defendants as well as former Defendants Anderson Engineering, Inc. and Neil S. Brady alleging state law causes of action for nuisance, negligence, negligence per se, trespass and common law diversion of water for damage to Plaintiff's home allegedly arising out of the construction of Defendant O'Reilly's Automotive Store in Clinton, South Carolina. (ECF No. 1.) On March 7, 2013, the court granted former Defendants Anderson Engineering, Inc. and Neil S. Brady's motion to dismiss. (ECF No. 42.) In its March 7, 2013 order, the court notified Plaintiff of deficiencies with his cause of action for negligence per se. Thereafter, Plaintiff filed an amended complaint on June 20, 2013, and a second amended complaint on June 24, 2013. (ECF Nos. 57 & 58.) However, Plaintiff made no effort to cure the deficiencies identified in his negligence per se claim.

On October 30, 2013, Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6) and 12© arguing inter alia that Plaintiff failed to plead facts sufficient to establish subject matter jurisdiction, specifically the amount in controversy, and that Plaintiff failed to state claims upon which relief could be granted. (ECF Nos. 69 & 71.) Plaintiff filed responses in opposition and, as alternative relief, requested leave to amend. (ECF Nos. 73 & 74.) The court dismissed Plaintiff's negligence per se cause of action on December 12, 2013, for "the same reasoning set forth in the court's Order of March 7, 2013".[1] (ECF No. 77.) In the court's March 7, 2013 order, it dismissed Plaintiff's negligence per se cause of action due to Plaintiff's failure to meet the pleading requirements of Fed.R.Civ.P. 8. The court noted that Plaintiff failed to allege any specific section of the South Carolina Stormwater Management and Sediment Reduction Act, S.C. Code Ann. §§ 48-14-10 et seq. and its accompanying Regulations §§ 72-300-316 (2012) ("the Stormwater Act") that was breached, how the breaches occurred or how the breaches proximately caused Plaintiff's damages. Plaintiff contends that the Stormwater Act provides the basis for his claims of negligence per se. The court granted Plaintiff leave to amend with regard to the amount-in-controversy. Plaintiff moved for reconsideration on January 9, 2014. (ECF No. 80.)


Motion to Reconsider

Pursuant to Fed.R.Civ.P. 54(b) the court retains the power to reconsider and modify its interlocutory judgments. Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th Cir.2003). This power of reconsideration is committed to the discretion of the district court. See Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (noting that "every order short of a final decree is subject to reopening at the discretion of the district judge").

Although the Fourth Circuit Court of Appeals has not specifically articulated the standard for evaluating a motion for reconsideration filed under Rule 54(b), the Court has held motions under Rule 54(b) are "not subject to the strict standards applicable to motions for reconsideration of a final judgment." Am. Canoe Ass'n, 326 F.3d at 514. District courts in the Fourth Circuit look to the standards of motions under Fed.R.Civ.P. 59 for guidance. R.E. Goodson Constr. Co., Inc. v. Int'l Paper Co., C/A No. 4:02-4184-RBH, 2006 WL 1677136, at *1 (D.S.C. June 14, 2006); Akeva L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d 559, 565-66 (M.D. N.C. 2005). As such, appropriate reasons for granting reconsideration under Rule 54 are: (1) to follow an intervening change in controlling law; (2) on account of new evidence; or (3) to correct a clear error of law or prevent manifest injustice. Beyond Sys., Inc. v. Kraft Foods, Inc., C/A No. PJM-08-409, 2010 WL 3059344, at *2 (D.Md. Aug.4, 2010) ("This three-part test shares the same three elements as the Fourth Circuit's test for amending an earlier judgment under Rule 59(e), but the elements are not applied with the same force when analyzing an interlocutory order.")

Motion to Amend

Generally, "the court should freely give leave [to amend] when justice so requires." Fed.R.Civ.P.15(a). However, when the request to amend pleadings is filed beyond the expiration of the pleading deadlines set forth in the court's scheduling order, the movant must first show "good cause" for the late filing pursuant to Federal Rules of Civil Procedure 16(b). Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.2008); see, e.g., Montgomery v. Anne Arundel County, 182 Fed.Appx. 156, 162, 2006 WL 1194308 (4th Cir. 2006). Rule 16(b) provides that the court's scheduling order "may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4).

To show good cause, the moving party must "show that the deadlines cannot reasonably be met despite the diligence of the party needing an extension." Vercon Const., Inc. v. Highland Mortg. Co., 187 Fed.Appx. 264, 265, 2006 WL 1747115 (4th Cir. 2006) ( citing 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure Civ.2d, § 1522.1). The court must focus on the reasons the movant "has given for his delay instead of the substance of the proposed amendment." Lurie v. Mid-Atlantic Permanente Medical Group, P.C., 589 F.Supp.2d 21, 2008 WL 5205909 (D.D.C. 2008); see also Nourison Rug Corp., 535 F.3d at 297 (discussing the lack of justification for the tardy filing of a motion to amend).

If the movant shows good cause under Rule 16, the court may then consider whether the requested amendment is proper under Rule 15(a). Under the latter rule, a "motion to amend should be denied only where it would be prejudicial, there has been bad faith, or the amendment would be futile." Nourison Rug Corp., 535 F.3d at 298, ...

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