United States District Court, D. South Carolina, Orangeburg Division
Sue B. Daniels and Lamar Daniels, Plaintiffs,
Food Lion, LLC, Defendant.
Bryan Harwell United States District Judge.
matter is before the Court on Plaintiffs' second motion
to amend the amended complaint and Defendant's motion for
summary judgment. See ECF Nos. 43 & 46. For the
reasons set forth below, the Court denies Plaintiffs'
second motion to amend and grants Defendant's motion for
premises liability case arises out of an alleged slip and
fall suffered by Plaintiff Sue B. Daniels
(“Daniels”) on or about March 2, 2015, while
shopping at a retail store owned by Defendant, Food Lion, LLC
(“Food Lion”), in Santee, South Carolina. Am.
Compl. at ¶¶ 5-6 [ECF No. 1-2]. While checking out,
Daniels alleges she slipped on a substance on the floor as
she reached to push her shopping cart through the checkout,
falling to the floor and landing on her side. Am. Compl. at
¶ 6. Roger Elmore (“Elmore”) was a store
manager on duty at the time of the alleged incident. Elmore
Dep. at 7:3-5 [ECF No. 47-3].
January 26, 2016, Daniels and Plaintiff Lamar Daniels filed a
complaint in the South Carolina Court of Common Pleas for
Orangeburg County, alleging negligence and gross negligence
by Defendant. Compl. at ¶¶ 9-13 [ECF No. 1-1].
Lamar Daniels brings a loss of consortium claim. Am. Compl.
at ¶¶ 12-14, 18-19. On February 16, 2016,
Plaintiffs filed an amended complaint as a matter of
course. On March 23, 2016, Defendant timely
removed the case to federal court under diversity
jurisdiction and contemporaneously filed an answer to the
amended complaint. [ECF Nos. 1 & 3].
April 20, 2016, Plaintiffs filed a motion to amend the
amended complaint, ECF No. 8, and a motion to remand, ECF No.
9, which the Honorable J. Michelle Childs denied on October
24, 2016. [ECF No. 26]. Both motions were premised on the
addition of Elmore as a defendant. The order denying
Plaintiffs' motion to amend held that: (1) the proposed
amendment to add Elmore-a nondiverse defendant with South
Carolina citizenship-was primarily to destroy diversity
jurisdiction because Plaintiffs sought the amendment almost
immediately after removal but before any additional discovery
had occurred; (2) Plaintiffs were dilatory in seeking the
amendment because the suit had been pending for several
months and the complaint had been previously amended for the
specific purpose of clarifying the allegedly liable party;
(3) the amendment was futile and unnecessary because Food
Lion would still be vicariously liable for any negligence of
its employees; and (4) the equities of the situation did not
warrant granting leave to amend because Plaintiffs failed to
explain why Elmore was a necessary party and, if so, why he
was not previously named as a defendant. Oct. 24, 2016 Order
at 2-4. Because the Court denied the motion to amend, the
Court likewise denied the motion to remand. Id. at
February 15, 2017, Judge Childs issued a second consent
amended scheduling order with a May 1, 2017 deadline to join
other parties and amend the pleadings. [ECF No. 32]. That
deadline was not altered by subsequent scheduling orders.
[See ECF Nos. 36, 41 & 42]. On April 20, 2017,
the case was reassigned from Judge Childs to this Court. [ECF
April 20, 2018, Plaintiffs filed the pending second motion to
amend the amended complaint. On May 4, 2018, Defendant filed
a response in opposition. [ECF No. 44]. Plaintiffs did not
file a reply. On June 7, 2018, Defendant filed the instant
motion for summary judgment. On June 21, 2018, Plaintiffs
filed a response in opposition, and on June 28, 2018,
Defendant filed a reply thereto. [ECF Nos. 47 & 48]. The
motions are now ripe for the Court's consideration.
Motion to Amend
15(a) of the Federal Rules of Civil Procedure governs
amendments before trial, providing in pertinent part that
“[a] party may amend its pleading once as a matter of
course within: (A) 21 days of serving it, or (B) if the
pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading[.]”
Fed.R.Civ.P. 15(a)(1). “In all other cases, a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). “The court should freely give leave when
justice so requires.” Id. The Fourth Circuit
Court of Appeals 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 Cir. 2006) (citation
“after deadlines provided for by a scheduling order
have passed, the good cause standard [of Rule 16] must be
satisfied to justify leave to amend the pleadings.”
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298
(4th Cir. 2008) (citations omitted). Rule 16 provides that a
scheduling order “may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). “[G]ood cause means that scheduling deadlines
cannot be met despite a party's diligent efforts.”
Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986
F.Supp. 959, 980 (D.S.C. 1997) (citation omitted).
“[w]hen a plaintiff seeks to join a nondiverse
defendant after the case has been removed, the district
court's analysis begins with 28 U.S.C. §
1447(e).” Mayes v. Rapoport, 198 F.3d 457, 461
(4th Cir. 1999). Section 1447(e) “provides the district
court with two options: ‘[i]f after removal the
plaintiff seeks to join additional defendants whose joinder
would destroy subject matter jurisdiction, the court may deny
joinder, or permit joinder and remand the action to the State
court.'” Id. at 461-62 (quoting 28 U.S.C.
§ 1447(e)). “These are the only two options for a
district court faced with a post-removal attempt to join a
nondiverse defendant; the statute does not allow a district
court to retain jurisdiction once it permits a nondiverse
defendant to be joined in the case.” Id. at
462. “[T]he actual decision on whether or not to permit
joinder of a defendant under these circumstances is committed
to the sound discretion of the district court[, ] [and] this
decision is not controlled by a Rule 19 analysis.”
Id. This discretion allows the Court to examine
“all relevant factors, including: the extent to which
the purpose of the amendment is to defeat federal
jurisdiction, whether the plaintiff has been dilatory in
asking for amendment, whether the plaintiff will be
significantly injured if the amendment is not allowed, and
any other factors bearing on the equities.”
Id. (citation omitted).