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Abitu v. GBG, Inc.

United States District Court, D. Maryland, Southern Division

May 1, 2018

LYDIA ABITU, Plaintiff,
GBG, INC., Defendant.


          Paul W. Grimm United States District Judge.

         On July 16, 2015, Plaintiff Lydia Abitu was using a lateral pulldown machine (the “Machine”) at Gold's Gym in Gaithersburg Maryland, a gym that Defendant GBG, Inc. (“GBG”) operates, when the cord in the machine broke and Abitu fell and sustained injuries. Am. Compl. ¶¶ 2-5, ECF No. 24.[1] She filed suit against GBG in the Circuit Court for Montgomery County, alleging negligence, ECF No. 2, and GBG removed to this Court, ECF No. 1. The parties completed the bulk of discovery by the September 5, 2017 deadline, at which point they submitted their Joint Status Report, ECF No. 27, and GBG sought leave to file a motion for summary judgment, asserting that the waiver of liability that Abitu signed barred her negligence claim, Def.'s Pre-Mot. Ltr., ECF No. 27-1.

         GBG filed its Motion for Summary Judgment, ECF No. 31, which the parties fully briefed, ECF Nos. 31-1, 33, 35. In her Opposition, Abitu did not challenge the applicability of the waiver that she signed to a claim for ordinary negligence, but rather she asserted for the first time that GBG was grossly negligent and therefore not entitled to judgment as a matter of law. And, Abitu filed a pre-motion letter, seeking leave to file a motion for leave to amend her Complaint to allege gross negligence. ECF No. 32. I directed the parties to brief the motion to amend informally, ECF No. 37, which they did, ECF Nos. 39, 42, 43. A hearing is not necessary. See Loc. R. 105.6. Because Abitu has not shown good cause for amending to allege gross negligence at this late juncture, I will deny her Motion to Amend and grant GBG's Motion for Summary Judgment.


         Abitu alleges in her one-count Amended Complaint for negligence that the Machine she was using when she was injured “had been recently inspected by maintenance, so the gym was on notice of the damaged cord, ” but GBG “fail[ed] to properly maintain the lateral pulldown machine.” Am. Compl. ¶¶ 6, 9. I issued a Scheduling Order, setting a May 6, 2017 deadline for amending the pleadings and a discovery deadline of September 5, 2017. ECF No. 17. On June 21, 2017, Abitu received GBG's discovery responses, which included photographs of the Machine and interrogatory answers identifying Jamel Wilmore as the manager of the Gold's Gym in Gaithersburg at the time of the incident. Pl.'s Mot. to Am. 2. The photographs showed a notice sticker on the Machine that, although blurry, can be read to the extent that it indicated that certain categories of “COMMERCIAL MAINTENANCE, ” including “Clean[ing] Upholstery” and “Inspect[ing] Cables or Belts” and other parts of the machine, should be performed daily. Pl.'s Mot. Ex. D, ECF No. 39-5.

         In response to Interrogatory No. 2, asking when the Machine was examined, repaired, maintained or cleaned, GBG stated that its “[e]mployees . . . regularly examine, maintain and/or clean the equipment in the facility, ” but “[t]here are no records maintained which indicate the date and/or time that this specific piece of equipment was examined, maintained and/or cleaned.” Def.'s Ex. 2, ECF No. 42-2. In response to Interrogatory No. 11, asking for any affirmative defenses that GBG intended to raise, GBG stated: “Plaintiff signed a Membership Agreement which contains a Waiver of Liability.” Id. Thus, as of June 21, 2017, Abitu was on notice that GBG intended to raise waiver as a defense to her negligence claim. She also was aware that the Machine required daily maintenance and that the discovery responses she had received stated that the Machine was “regularly” maintained, without providing more specificity.

         Abitu, through her attorney's colleague Aleksandr Shubin, Esq., deposed Wilmore on August 22, 2017. Wilmore Tr., Pl.'s Mot. Ex. F, ECF No. 39-7. The deposition lasted all of thirteen minutes and generated a twenty-four page transcript. See Id. Wilmore testified that one person, Matt Schrider, was “involved in maintaining the equipment, ” and it was his “job . . . to inspect the equipment.” Id. at 10:15-11:9. He stated that Schriber came to the gym “[o]nce a week.” Id. at 19:16-21.

         At the close of discovery two weeks later, GBG announced its intent to move for summary judgment based on the waiver of liability that Abitu signed. Def.'s Pre-Mot. Ltr. I held a conference call on September 13, 2017, at which I discussed a briefing schedule with the parties and set deadlines to which the parties agreed. ECF No. 37. Despite notice that Abitu believed that waiver would bar an ordinary negligence claim, and the possibility that the manager's deposition testimony could support a claim of gross negligence, Plaintiff's counsel neither mentioned the possibility of amendment to allege gross negligence nor informed the Court that he needed additional time to review Wilmore's deposition transcript to see if it supported such an amendment. GBG filed its Motion for Summary Judgment on September 28, 2017. Abitu filed a pre-motion letter regarding her interest in amending her Amended Complaint two weeks later, on October 12, 2017, two business days before her Opposition was due.

         Motion to Amend

         Standard of Review

         Whether to grant a motion for leave to amend is within this Court's discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). Rule 15(a)(2) typically provides the standard for whether to grant a motion for leave to amend that a plaintiff files more than twenty-one days after defendants file a responsive pleading or motion to dismiss. See id.; Fed.R.Civ.P. 15(a)(2). When, as here, the plaintiff moves to amend after the deadline established in the scheduling order for doing so, however, Rule 16(b)(4) becomes the starting point in the Court's analysis. CBX Techs., Inc. v. GCC Techs., LLC, No. JKB-10-2112, 2012 WL 3038639, at *3 (D. Md. July 24, 2012). Thus, “once the scheduling order's deadline for amendment of the pleadings has passed, a moving party first must satisfy the good cause standard of Rule 16(b); if the moving party satisfies Rule 16(b), the movant then must pass the tests for amendment under [Rule] 15(a).” Id. (quoting Odyssey Travel Ctr., Inc. v. RO Cruises, Inc., 262 F.Supp.2d 618, 631 (D. Md. 2003)); see Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008).

         “‘“[G]ood cause” means that scheduling deadlines cannot be met despite a party's diligent efforts.' . . . Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” CBX Techs., Inc., 2012 WL 3038639, at *4 (quoting Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375 (D. Md. 1999) (citation omitted)). The Court focuses “less . . . on the substance of the proposed amendment and more . . . [on] the timeliness of the motion to amend ‘and the reasons for its tardy submission.'” Id. (quoting Rassoull v. Maximus, Inc., 209 F.R.D. 372, 373-74 (D. Md. 2002)). This is because “[a] court's scheduling order ‘is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.'” Id. (quoting Potomac Elec. Power Co., 190 F.R.D. at 376 (citation and quotation marks omitted)). Specifically, the Court considers 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. Tawwaab v. Va. Linen Serv., Inc., 729 F.Supp.2d 757, 768-69 (D. Md. 2010). When “at least some of the evidence needed for a plaintiff to prove his or her claim did not come to light until after the amendment deadline, ” a plaintiff has “good cause” for moving to amend at a later date. Id. at 768. If the Court concludes that the plaintiff had good cause for moving to amend after the deadline has passed, then, pursuant to Rule 15(a)(2), “[t]he court should freely give leave [to amend] when justice so requires.”


         Abitu did not learn of the evidence that could support a claim for gross negligence-that is, Wilmore's testimony that GBG only performed necessary maintenance on the Machine weekly, when the sticker on the Machine required daily inspections-until August 22, 2017, only two weeks before the close of discovery, and well after the May 2017 amendment deadline. That delay certainly would justify a request to amend made promptly after the August 22, 2017 deposition. See Tawwaab, 729 F.Supp.2d at 768. But Abitu waited more than seven weeks, during which time discovery closed; GBG filed a pre-motion letter regarding its summary judgment motion based on waiver; I ...

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