United States District Court, D. Maryland
Lipton Hollander, United States District Judge.
Kantsevoy, M.D., a gastroenterologist, has sued LumenR LLC
(“LumenR”), a medical device company, for breach
of contract and related claims stemming from Kantsevoy's
work in product development for LumenR. ECF 1 (Complaint).
LumenR has asserted counterclaims for breach of contract,
tortious interference with business relations, and related
claims. ECF 12 (Answer and Counterclaims).
suit was filed in February 2017, the parties have engaged in
the proverbial scorched-earth style of litigation, requiring
resolution of numerous discovery disputes and the filing of
thousands of pages of vitriolic submissions. Ten motions and
cross-motions are pending. This Memorandum Opinion addresses
three of them. The first two are cross-motions for judgment
on the pleadings under Fed.R.Civ.P. 12(c). ECF 25; ECF 27.
LumenR filed its motion first, seeking to dismiss five of
Kantsevoy's six claims. ECF 25. The motion is supported
by a memorandum of law (ECF 25-1) (collectively, the
“LumenR Motion”), and one exhibit. Kantsevoy
opposes the LumenR Motion. ECF 26 (“Kantsevoy
Opposition”). LumenR replied (“LumenR
Kantsevoy filed his motion for judgment on the pleadings,
seeking to dismiss LumenR's counterclaim for deceit;
strike LumenR's affirmative defenses of deceit and
promissory estoppel; and strike from LumenR's pleadings
“all allegations regarding Dr. Kantsevoy's
financial disclosures to third parties.” ECF 27. The
motion is supported by a memorandum of law (ECF 27-1)
(collectively, the “Kantsevoy Motion”) and two
exhibits. LumenR opposes the Kantsevoy Motion. ECF 29
(“LumenR Opposition”). Kantsevoy replied. ECF 30
third motion addressed in this Memorandum Opinion is
LumenR's Motion for Leave to Amend Its Answer,
Affirmative Defenses and Counterclaims. ECF 120
(“Motion to Amend”). The Motion to Amend seeks to
add a fifth counterclaim, styled “Breach of Contract
-Third Party Beneficiary.” ECF 120-2 (proposed Amended
Answer and Counterclaims) at 20. Kantsevoy opposes the Motion
to Amend. ECF 144. LumenR replied. ECF 158.
hearing is necessary to resolve these three motions.
See Local Rule 105.6. For the reasons that follow, I
shall deny the Motion to Amend. And, I shall grant the LumenR
Motion and the Kantsevoy Motion in part and deny each in
the procedural posture of this case, I must assume the truth
of all factual allegations in the Complaint. See E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011). Because both parties have
filed motions for judgment on the pleadings under Rule 12(c),
I shall include the factual allegations in Kantsevoy's
Complaint as well as LumenR's Answer and Counterclaims,
noting where they conflict. Additionally, where relevant
facts are contained in exhibits incorporated into the
pleadings (discussed, infra), I shall refer to those
exhibits, as well.
2009, LumenR was founded by Gregory Piskun, M.D. ECF 1,
¶ 9. The company focused on developing a medical device
that would aid in surgery to remove cancerous lesions and
tumors from the colon, stomach, and esophagus. Id.
The device is called the LumenR Tissue Retractor System
(“Tissue Retractor”). Id. In May 2010,
Piskun approached Kantsevoy at a convention to discuss the
Tissue Retractor, and Kantsevoy said that the device could be
useful. Id. ¶¶ 10-11.
describes himself as “an internationally known
gastroenterologist, ” practicing at Mercy Hospital in
Baltimore. ECF 1, ¶ 4. He claims that on June 12, 2010,
Piskun “invited Dr. Kantsevoy to formally join the
development team.” Id. ¶ 12. Kantsevoy
alleges that Piskun made an “offer” that
“included a promise to pay Dr. Kantsevoy the lesser of
$500 per hour or $2500 per day for his consulting
services.” Id. Kantsevoy insists that the
“offer” “also included a promise to
‘create an equity ownership package'” for
Kantsevoy, by which “[t]he parties understood that
LumenR would provide Dr. Kantsevoy a reasonable equity
package [in LumenR], the precise amount of which would be
mutually and reasonably agreed upon later.”
Id. Kantsevoy alleges that he “accepted the
offer that day, ” and the next day “Dr. Piskun
acknowledged in writing that Dr. Kantsevoy accepted the offer
to work for LumenR.” Id.
alleges a somewhat different story. LumenR agrees that Piskun
and Kantsevoy met in May 2010, but alleges that in June,
Piskun “sent an email to Kantsevoy inquiring regarding
Kantsevoy's interest in consulting on the LumenR
project.” ECF 12, ¶ 9. The email, dated June 12,
2010, stated, ECF 25-2 at 2:
Sergey - Thank you, It is an honor to get you involved.
Let's start by introducing the technology to you?
If this is acceptable to you we would compensate your
consulting time with $500/hour and $2500/day if need to spend
a day on the company's business (meetings, labs, clinical
studies, etc.) If it happens that you really [sic] excited
about the technology and believe in its future, we can create
an equity ownership package which may be a very substantial
exit for you.
Please let me know your thoughts. If you prefer to talk on
the phone please don't hesitate to call me at [REDACTED].
replied, id: “Yes, I am interested. We can
discuss more details by e-mail or by phone - both way [sic]
are good for me. Sergey”. LumenR asserts that there
were “no further communications on the topic of
Kantsevoy's potential consulting arrangement until nearly
a year later.” ECF 12, ¶ 9.
claims that when Kantsevoy and Piskun met again in June 2011,
Kantsevoy expressed interest in the Tissue Retractor.
Id. ¶ 10. LumenR alleges that in September
2011, Piskun and Kantsevoy executed an agreement as to a
different project, concerning the “HET”
project (“HET Agreement”), not associated with
LumenR, but also supervised by Piskun. Id. ¶
11. The HET Agreement specified that Kantsevoy would receive
$500 for each product evaluation form he submitted, and a $2,
000 honorarium for any speaking engagement he attended on
behalf of the HET project. Id. The HET Agreement
also provided equity compensation to Kantsevoy of 50, 000
shares. Id. In addition, the HET Agreement contained
a confidentiality provision and a requirement that Kantsevoy
assign to HET any intellectual property rights obtained in
the course of the HET project.
to LumenR, Piskun's email forwarding the HET Agreement
stated that “‘we will create the identical
agreement for LumenR when ready to execute.'”
Id LumenR asserts that Kantsevoy
executed the HET Agreement, but then later asked to rescind
it. Id. Although the HET Agreement was rescinded on
an unspecified date, LumenR alleges that Kantsevoy still
wished to consult for LumenR on the Tissue Retractor, and
Kantsevoy suggested lowering his per diem rate to $2, 000.
Id. ¶ 12.
maintains that when LumenR's patent application for the
Tissue Retractor was filed, at an unspecified time, Kantsevoy
was named as a co-inventor, but he assigned all his rights in
the product to a corporation called “Macroplata, Inc.,
” and his rights were subsequently assigned to
LumenR. Id. ¶ 16. Kantsevoy states that he
signed away his intellectual property rights, “for a
symbolic fee of $1 and ‘other good and valuable
consideration, '” which Kantsevoy alleges was
understood to include an “‘equity ownership
package'” in LumenR. ECF 1, ¶ 18.
to LumenR, between February 2012 and November 2013, Kantsevoy
conducted several tests of the Tissue Retractor on animals,
and received seven payments from LumenR at his per diem rate.
ECF 12, ¶ 17. Further, LumenR maintains that Kantsevoy
“expressed interest in conducting human clinical
trials” with the Tissue Retractor, but that he
“insisted on not being compensated by LumenR as this
would allow him to publish peer reviewed articles, and
participate in seminars and speaking engagements while being
free of financial conflicts of interest.” Id.
alleges that it “agreed to have Kantsevoy self-sponsor
clinical work, ” and “support[ed] Kantsevoy's
efforts” with sample devices, technical support, and
selective reimbursements. Id. ¶ 19. In
“exchange” for this support, Kantsevoy was
expected to “provide copies of the completed clinical
trial data sheets to LumenR and to publish the results of his
work.” Id. LumenR alleges that Kantsevoy never
provided the clinical trial data sheets. Id.
Further, LumenR insists that throughout Kantsevoy's
clinical work, Kantsevoy continually “represented to
LumenR, to peer reviewed publications, to professional
organizations and . . . to the [Institutional Review Board]
of Mercy Hospital, that Kantsevoy had no relevant financial
disclosures and no financial conflicts.” Id.
¶ 20. LumenR asserts that it believed these
representations to be true. Id.
April of 2016, LumenR maintains, did Kantsevoy “beg[i]n
making unwarranted, unjustified and highly unethical demands
for substantial retroactive payment, including company
equity.” Id. ¶ 21. LumenR contends that
it attempted to negotiate a contract with Kantsevoy, but
Kantsevoy repeatedly “escalat[ed] his demands.”
Id. ¶ 22.
part, Kantsevoy asserts that he “invested time and
effort into marketing the Tissue Retractor, ” in
addition to publishing an academic paper describing his
animal testing and making 36 presentations about the
technology. ECF 1, ¶ 19. He contends that he
“would not have exerted such substantial efforts had he
not been promised ‘an equity ownership package' in
the Tissue Retractor.” Id.
addition, Kantsevoy alleges that he was not paid for his work
in accordance with the June 2010 “agreement, ”
but was instead underpaid. Id. ¶ 21. In
particular, he asserts that he was paid only for ten
workshops, and for only eight of 21 animal experiments he
conducted. Id. Plaintiff also alleges that when
LumenR paid him for the eight experiments, “it
underpaid Dr. Kantsevoy by $500 each time.”
Id. Further, plaintiff contends that he has not been
paid for other substantial contributions, and that he was not
fully reimbursed for travel costs. Id.
Kantsevoy asserts that during the working relationship,
Piskun “repeatedly assured him that LumenR would
adequately compensate Dr. Kantsevoy for his time and
efforts.” Id. ¶ 13. Kantsevoy cites two
occasions, in 2015 and 2016, on which Piskun “confirmed
that Dr. Kantsevoy would be provided an equity stake in
LumenR, ” but that “the exact value of that
interest would have to wait for the sale of the
technology.” Id. Since that time, however,
Kantsevoy alleges that Piskun and LumenR have
“disavowed” their “repeated offers of an
equity stake in the company and, instead, proposed to
compensate Dr. Kantsevoy in the form of vague promises that
[another company] would fund Dr. Kantsevoy's future
research or sponsor his scientific conferences.”
Id. ¶ 23.
contrast, LumenR asserts that Kantsevoy threatened to
“‘destroy' LumenR to his professional
colleagues” if his demands were not met, and further
threatened to destroy or compromise the data he had collected
during his clinical trials. ECF 12, ¶ 25. LumenR alleges
that Kantsevoy in fact carried out one of his threats by
removing the Tissue Retractor from a previously announced
showcase, thereby “casting the product in an
unjustified negative light.” Id. ¶ 26.
LumenR contends that from July 2016 to November 2016, after
Kantsevoy discovered that LumenR was in talks with a third
party about selling the rights to the Tissue Restractor,
Kantsevoy disparaged LumenR to one or more employees of that
third party, and claimed that he had an interest in the
company, so as to discourage the third party from completing
the purchase. Id. ¶ 27. Kantsevoy alleges that
the third party, Boston Scientific Corporation
(“BSC”), purchased the rights to the Tissue
Retractor for approximately $40 million. ECF 1, ¶ 25.
However, LumenR asserts that “Kantsevoy's
interference with such third party diminished the
value” of the ultimate sale. ECF 12, ¶ 28.
suit followed in February 2017. ECF 1. Additional facts are
included in the Discussion.
Motion to Amend
noted, suit was filed in February 2017. LumenR initially
answered Kantsevoy's Complaint and counterclaimed on
February 28, 2017. ECF 12. The Court issued a Scheduling
Order on March 23, 2017. ECF 23. It set a deadline of May 24,
2017, for joinder of additional parties and amendment of
pleadings. Id. at 1. A deadline of October 23, 2017,
was set for completion of discovery, and the dispositive
pretrial motions deadline was set for November 20, 2017.
Id. at 2.
18, 2017, at the parties' request (ECF 45), the Court
modified the Scheduling Order, extending various deadlines
for expert disclosures, and extending the discovery deadline
until November 15, 2017. ECF 47. At the eleventh hour, on the
last day of discovery, the parties moved to extend discovery
until December 1, 2017, and to extend the deadline for
dispositive pretrial motions from November 20, 2017, until
December 6, 2017. ECF 97. This request was also granted. ECF
98. Finally, on December 8, 2017, the parties moved to extend
retroactively the discovery deadline by one day, to allow for
the completion of their last deposition. ECF 118. The Court
granted this motion. ECF 119.
moved to amend its Answer and Counterclaims on December 12,
2017. ECF 120. That motion was filed ten days after the close
of the discovery period that had been extended three times,
six days after the deadline for dispositive motions, and
about six months beyond the deadline for amendment of
pleadings. In particular, LumenR seeks to add a counterclaim
for Breach of Contract - Third Party Beneficiary. ECF 120-2
proposed counterclaim alleges that Kantsevoy breached a
contract by refusing to release to LumenR the data he
collected in his human clinical trials. Id. The
“contract, ” however, is alleged to be an
informed consent form that Kantsevoy provided to the subjects
of his clinical trial. ECF 120-2, ¶ 42. The consent form
stated, inter alia, that “Mercy Medical Center
and/or its outside partners in this research will own these
data.” Id. ¶ 43. LumenR alleges that it
was the only “outside partner” involved in the
research and therefore, according to the consent form, it
owns the data. Id. ¶ 45. Although LumenR was
not a party to the consent form, it claims that it was a
third party beneficiary to the agreement, and therefore it
can enforce the clause of the consent form against Kantsevoy.
ECF 120-1 at 2.
Kantsevoy's opposition to the Motion to Amend (ECF 144),
he points out that LumenR did not move to amend its pleadings
until long after the deadline of May 24, 2017, that this
Court set for doing so (see ECF 23), and he argues
that LumenR's belated amendment fails Fed.R.Civ.P.
16's “good cause” standard for modifying a
scheduling order. ECF 144 at 18. Kantsevoy asserts that
“LumenR's counsel knew all the facts necessary to
bring [the new counterclaim] long before the deadline,
” but declined to do so until after the close of
discovery and the pretrial motions deadline. Id. at
19-20. Kantsevoy further contends that allowing the amendment
will prejudice him, as he would have no opportunity to
conduct further discovery regarding the new claim.
Id. at 20. In the alternative, Kantsevoy argues that
the Court should deny leave to amend under Fed.R.Civ.P. 15,
because the amendment is futile and would cause undue
prejudice to Kantsevoy. Id. at 22-30.
defense, LumenR asserts that “the relevant facts were
not fully known by LumenR until well after the deadline of
May 24, 2017 had passed.” ECF 120-1 at 1. In
particular, LumenR cites the deposition of a representative
of Mercy Medical Center, taken on July 19, 2017; the
deposition of Kantsevoy himself, taken on November 11, 2017;
and the deposition of Kantsevoy's expert, taken on
December 2, 2017, as confirming that “no other
‘outside partners' other than LumenR were involved
in the clinical trial of the LumenR device.”
Id. at 2. Thus, LumenR maintains that the
counterclaim “was not fully developed by LumenR until
nearly the close of discovery.” ECF 158 at 7.
complaint may be amended “once as a matter of
course” within twenty-one days of service of a
defendant's answer or Rule 12(b), (e), or (f) motion,
“whichever is earlier.” Fed.R.Civ.P. 15(a)(1)(b).
“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). However, the
court “should freely give leave when justice so
juncture, however, LumenR must do more than satisfy the
liberal standard for amendments set forth in Fed.R.Civ.P.
15(a). When, as here, a party seeks to amend a pleading after
the expiration of a deadline set forth in a scheduling order,
Rule 16(b)(4) is implicated. Rule 16(b)(4) states that a
scheduling order may be modified to amend a pleading
“only for good cause and with the judge's
must first meet the requirements of Fed.R.Civ.P. 16(b)(4).
“[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.” Nourison Rug
Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008);
see also Cook v. Howard, 484 F. App'x 805,
814-15 (4th Cir. 2012) (“[U]nder Rule 16(b)(4), a party
must first demonstrate ‘good cause' to modify the
scheduling order deadlines, before also satisfying the Rule
15(a)(2) standard for amendment.”); Humane
Soc'y of the United States v. Nat'l
Union Fire Ins. Co. of Pittsburgh, PA, DKC-13-1822, 2016
WL 3668028, at *2 (D. Md. July 11, 2016) (hereinafter,
“Humane Society”) (“Plaintiffs
must do more than satisfy the liberal standard of
Fed.R.Civ.P. 15(a); they must first meet the mandates of
Fed.R.Civ.P. 16(b)(4) . . . .”); Elat v.
Ngoubene, 993 F.Supp.2d 497, 519-20 (D. Md. 2014)
(applying a two-prong test under Rules 16(b)(4) and 15(a) in
analyzing an untimely motion for leave to amend).
“burden for demonstrating good cause rests on the
moving party.” United States v. Hartford Accident
& Indemnity Co., JKB-14-2148, 2016 WL 386218, at *5
(D. Md. Feb. 2, 2016). In order to demonstrate good cause,
the party seeking relief must “‘show that the
deadlines cannot reasonably be met despite the party's
diligence, ' and whatever other factors are also
considered, ‘the good-cause standard will not be
satisfied if the [district] court concludes that the party
seeking relief (or that party's attorney) has not acted
diligently in compliance with the schedule.'”
Cook, 484 F. App'x at 815 (alterations in
Cook) (quoting 6A Wright & Miller, Federal
Practice & Procedure § 1522.2 (3d ed.)).
determining whether the moving party has met its burden to
show good cause, a court may consider “whether the
moving party acted in good faith, the length of the delay and
its effects, and whether the delay will prejudice the
non-moving party.” Elat, 993 F.Supp.2d at 520
(citing Tawwaab v. Va. Linen Serv., Inc., 729
F.Supp.2d 757, 768-69 (D. Md. 2010)). If the movant
“‘was not diligent, the inquiry should
end.'” Rassoull v. Maximus, Inc., 209
F.R.D. 372, 374 (D. Md. 2002) (quoting Marcum v.
Zimmer, 163 F.R.D. 250, 254 (S.D. W.Va. 1995)) (emphasis
omitted); see, e.g., CBX Techs., Inc. v. GCC Techs.,
LLC, JKB-10-2112, 2012 WL 3038639, at *4 (D. Md. July
24, 2012) (denying motion to amend the complaint because the
plaintiffs “failure to anticipate” its needs was
“of its own doing and not the fault of any other
entity”), aff'd, 533 F. App'x 182 (4th
relevance here, when a movant fails to satisfy Rule 16(b),
the court need not consider Rule 15(a). In Nourison,
535 F.3d at 299, the Court said: “Because we sustain
the District Court's application of Rule 16(b), there is
no cause for us to address the Court's finding that
amendment would be futile, which is a Rule 15(a)
consideration.” See also Humane Society, 2016
WL 3668028, at *6 (“Because Plaintiffs lack good cause
for modifying the scheduling order under Rule 16(b), their
remaining arguments in support of leave to amend under Rule
15 need not be considered.”); Marcum, 163
F.R.D. at 254 (“[T]he focus of the inquiry is upon the
moving party's reasons for seeking modification. If that
party was not diligent, the inquiry should end.”).
movant shows good cause for modification of the scheduling
order, the inquiry shifts to Rule 15(a). Rule 15(a)(2)
states: “[A] party may amend its pleading only with the
opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.” See also Foman v. Davis, 371 U.S.
178, 182 (1962); Simmons v. United Mortg. & Loan
Inv., LLC, 634 F.3d 754, 769 (4th Cir. 2011). Under Rule
15(a), the district court has “broad discretion
concerning motions to amend pleadings.” Booth v.
Maryland, 337 F. App'x 301, 312 (4th Cir. 2009) (per
curiam); see also Foman, 371 U.S. at 182; Laber
v. Harvey, 438 F.3d 404, 426-29 (4th Cir. 2006) (en
banc). A district court may deny a motion to amend for
reasons “‘such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment or futility of the amendment.'”
Booth, 337 F. App'x at 312 (quoting
Foman, 371 U.S. at 182).
16(b)(4) may appear at odds with Rule 15(a)(2). In
Nourison, 535 F.3d at 298, the Fourth Circuit
There is tension within the Federal Rules of Civil Procedure
between Rule 15(a) and Rule 16(b) . . . . Rule 15(a) provides
that leave to amend “shall be freely given when justice
so requires.” A motion to amend should be denied only
where it would be prejudicial, there has been bad faith, or
the amendment would be futile. HCMF Corp. v. Allen,
238 F.3d 273, 276-77 (4th Cir. 2001). On the other hand, Rule
16(b) provides that “a schedule shall not be modified
except upon a showing of good cause and by leave of the
* * *
Given their heavy case loads, district courts require the
effective case management tools provided by Rule 16.
With this framework, I turn to analyze the rules as they
Motion to Amend, LumenR merely gestures at the “good
cause” standard of Rule 16(b). It states, ECF 120-1 at
3: “Here, there can be no real question that good cause
exists to move the Court to permit LumenR to amend its Answer
after the scheduling order deadline has passed because, as
stated above, the relevant facts were not fully developed
until late in 2017.” LumenR then moves on to discuss
the more liberal standard of Rule 15(a). Id.
responds, emphasizing that “Rule 16 does not allow
parties to sit back until their claims are fully proven;
rather, it requires them to take action as soon as they have
notice of the facts necessary to assert a claim.” ECF
144 at 21. According to Kantsevoy, LumenR “knew all the
facts necessary to assert it proposed contract claim by the
February 28, 2017 filing of its original counterclaims.
Id. at 19.
LumenR admits in its reply that it “had knowledge of
the language of the informed consent forms at this earlier
time.” ECF 158 at 7. Still, LumenR contends that
because the claim was not “fully developed” until
“nearly the close of discovery, ” good cause
exists to grant leave to amend. Id.
with Kantsevoy. By all accounts, LumenR was aware of the
“core operative facts” of its proposed
counterclaim before the deadline to amend the pleadings had
passed, and “the fact that [LumenR] may not have had
sufficient evidence to prove [its] claim before the
deadline for the amendment of pleadings had no bearing on his
ability to plead [its] claim in a timely
manner.” Crouch v. City of Hyattsville, Md,
DKC-09-2544, 2012 WL 718849, at *2-3 (D. Md. Mar. 5, 2012)
(emphasis added) (internal quotation marks omitted). This
suggests a lack of diligence on LumenR's part, and
diligence is the focus of the Rule 16(b) inquiry.
Marcum, 163 F.R.D. at 254.
discusses the “good cause” standard more
thoroughly in its reply (ECF 158), but it offers little in
the way of justification for its tardiness. It asserts that
“although LumenR had been aware of the informed consent
form at the time of the deadline to amend the pleadings, it
was not until its deposition of Mercy on July 19, 2017, when
Mercy disclaimed any ownership in the clinical trial data,
that LumenR first appreciated the potential
counterclaim.” Id. at 9.
statement works against LumenR's ultimate goal in two
ways. First, the fact that LumenR had not previously
“appreciated” its potential counterclaim, despite
having knowledge of the document that purportedly gave rise
to it, does not support its claim of diligence. “Courts
in the Fourth Circuit deny leave to amend a complaint past
the deadline established by a scheduling order where the
moving party has been careless in developing his claims or
where he has failed to satisfactorily account for his failure
to do so.” Tawwaab, 729 F.Supp.2d at 769.
and perhaps more important, July 19, 2017, was almost five
months prior to the filing of the Motion to Amend on December
12, 2017. If, following the deposition on July 19, 2017,
LumenR finally “appreciated” its potential
counterclaim, it has not adequately explained why it waited
five months before moving to amend. Rather, it contends that
its delay is justified by its eventual confirmation in
November 2017 that there were no other “outside
partners” involved in the research, and by information
obtained from Kantsevoy's expert, Dr. Paresh Shah, on
December 2, 2017. ECF 158 at 9. At that time, LumenR learned
that Dr. Shah “would not view Kantsevoy, an employee of
Mercy, as being an ‘outside partner' of
Mercy.” Id. LumenR does not explain why the
opinion of its opposing party's expert on this question
was the final element LumenR needed to plausibly plead its
is an important difference between modifying the Court's
Scheduling Order shortly after the deadline to amend the
pleadings has passed, and modifying it some six months later,
after the close of discovery and the deadline to submit
dispositive pretrial motions. See Crouch, 2012 WL
718849 at *2 n.4 (“Permitting Plaintiff to amend his
complaint at this point in the proceedings would require not
only that the deadline for the amendment of pleadings be
modified, but likely that other deadlines be modified as well
to accommodate additional discovery concerning any new
claims.”); see also Brown v. Target, Inc.,
ELH-14-0950, 2016 WL 4443872, at *7-8 (D. Md. Aug. 18, 2016)
(denying leave to amend where plaintiff should have known of
a new claim at least two months earlier, but only sought to
add the claim after the close of discovery).
conclude that LumenR has failed to show good cause under Rule
16(b) to modify the Scheduling Order. Therefore, I need not
consider the propriety of amendment under Rule 15(a).
Accordingly, I shall deny the Motion to Amend. ECF 120.
Motions for Judgment on the Pleadings
and Kantsevoy have moved for judgment on the pleadings
pursuant to Fed.R.Civ.P. 12(c). A Rule 12(c) motion
“for judgment on the pleadings” may be filed
“[a]fter the pleadings are closed, ” so long as
it is “early enough not to delay trial.”
Fed.R.Civ.P. 12(c). Under Rule 12(h)(2)(B), a party may
assert “failure to state a claim upon which relief can
be granted” in a Rule 12(c) motion. Such a motion is
“assessed under the same standard that applies to a
Rule 12(b)(6) motion.” Walker v. Kelly, 589
F.3d 127, 139 (4th Cir. 2009) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see
also McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir.
may test the legal sufficiency of a complaint or counterclaim
by way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd, 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom. McBurney v.
Young, 569 U.S. 221 (2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule
12(b)(6) motion constitutes an assertion by a defendant that,
even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim
upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for
‘all civil actions' ..... (citation omitted));
see also Willner v. Dimon, 849 F.3d 93, 112 (4th
Cir. 2017). But, a plaintiff need not include “detailed
factual allegations” in order to satisfy Rule 8(a)(2).
Twombly, 550 U.S. at 555. Moreover, federal pleading
rules “do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted.” Johnson v. City of Shelby, ___ U.S.
___, 135 S.Ct. 346, 346 (2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action,
“even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. Maryland Transit
Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v.
Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir.
2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th
Cir. 2011), cert. denied, 565 U.S. 943 (2011). But,
a court is not required to accept legal conclusions drawn
from the facts. See Papasan v. Allain, 478 U.S. 265,
286 (1986). “A court decides whether [the pleading]
standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).