United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
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. 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.
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.
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.
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.
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.
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.
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).
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.”
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 ...