IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



PATRICIA SCHRADER-COOKE,



CIVIL CASE NO.: SX-16-CV-655

v.



)

)

} ACTION FOR DAMAGES

THE GOVERNMENT OF THE VIRGIN )

ISLANDS, BOARD OF EDUCATION, MARY )

MOORHEAD, JUDY GOMEZ, WINONA )

HENDRICKS, LA VERNE SLACK and ARAH_)

LOCKHART, individually and in their capacity

)



as Board members



2019 VI Super (U)116



Defendants.



MEMORANDUM OPINION and ORDER



q1 Before the Court is Plaintiff's Motion for Leave to File Second Amended Complaint

(“Motion”), filed March 21, 2019. Defendants Government of the Virgin Islands, Board of

Education, Judy Gomez, Winona Hendricks, La Vernon Slack and Arah Lockhart (collectively

“Government Defendants”) filed their Opposition to Motion for Leave to File Second Amended

Complaint on May 13, 2019. By Order entered June 4, 2019, Plaintiff was granted 14 days within

which to reply to Government Defendants’ Opposition, and Defendant Moorhead was granted 14

days within which to file an opposition to Plaintiffs Motion, following which Plaintiff was

permitted to reply. Defendant Moorhead filed her Opposition on June 6, 2019. Plaintiff filed no

reply to either Opposition, but rather on June 18, 2019 filed her Motion for Leave to File Third

Amended Complaint (“Substitute Motion”), substituting a new proposed Third Amended

Complaint for the Second Amended Complaint originally submitted with her Motion.

BACKGROUND



q2 ‘Plaintiff filed her original Complaint on November 4, 2016 and her First Amended

Complaint on February 28, 2017. First Amended Scheduling Order was entered October 11, 2018,

pursuant to joint motion of all parties, setting the final pretrial conference for May 23, 2019 and

trial for June 10, 2019. By Order entered November 28, 2018, all dates were extended for 60 days,

except that the final pretrial conference and trial dates remained as scheduled for May 23, 2019

and June 10, 2019, respectively. By further Order entered March 1, 2019, all written discovery



was to be completed by service of final responses within 14 days, and Plaintiff was to be made

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available for deposition no later than April 15, 2019. Dates for mediation and dispositive motions

were extended to May 1, 2019 and May 7, 2019, respectively. Plaintiff was to coordinate filing of

the Joint Final Pretrial Order pursuant to V.I. R. Civ. P 16-1 no later than May 17, 2019. By Order

entered April 17, 2019, the Final Pretrial Conference was rescheduled from May 23 to May 24,

2019. On April 30, 2019, Plaintiff filed her Notice to Court and Motion to Compel and for

Extension of Deadlines seeking “a wholesale extension of case deadlines, an extension of

Plaintiff's case deadlines and a continuance of the May 24, 2019 hearing,” citing counsel’s travel

to the U.S. mainland for medical treatment, among other reasons. By Order entered May 14, 2019,

Plaintiffs Motion and all other pending motions were scheduled to be addressed at the May 24,

2019 Final Pretrial Conference. On May 23, 2019, Plaintiff filed her Emergency Motion to

Reconsider May [14], 2019 Order, citing late receipt of the May 14, 2019 Order and “counsel’s

non-availability to appear in person due to a prior commitment outside the Virgin Islands.” In

response to Plaintiff's Emergency Motion, Order entered May 24, 2019 cancelling the Final

Pretrial Conference and the June 10, 2019 trial without new dates and scheduling a telephonic

scheduling conference for May 29, 2019. By Scheduling Order entered herewith, the trial of this

action has been rescheduled for October 15, 2019, with Final Pretrial Conference set for September

26, 2019.



{3 ‘Plaintiff filed the instant Motion to further amend her First Amended Complaint following

the close of written discovery, because “Plaintiff recognized that the First Amended Complaint

needed streamlining and revision, based on the same original operative facts, to update and more

clearly articulate the specific causes of action pled, the proper Defendants in each, and to modify

the relief sought...”._ The First Amended Complaint, substantially substantively amended from

the original Complaint, consists of 119 paragraphs and sets forth various claims for relief in eight

separate counts. The presently proposed Third Amended Complaint presents 157 paragraphs and

ten separate counts. Plaintiff's present claims and those proposed (with alleged Defendant(s) as to



each count) are noted as follows:



First Amended Complaint Third Amended Complaint (proposed)

Count I Violation of Due Process Count I Violation of 3 VIC § 530



(Alt Defendants) (All Defendants)

Count Il Breach of Contract Count II Violation of Substantive Due Process



(All — in official capacities) (All)

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Memorandum Opinion and Order 2019 VI Super (U) 116

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Count II Breach of Good Faith & Fair Dealing Count III Violation of Procedural Due Process

(AH) (All)

Count IV Int’l Interference Contractual Relations Count IV Breach of Contract

(Moorhead) (All)

Count V Int'l Interference Contractual Relations Count V Int’! Interference Contractual Relations

(Gomez) (All = individual capacities)

Count VI Defamation and Slander Count VI Defamation

(Moorhead) (Moorhead)

Count Vil Int’! Infliction Emotional Distress Count VII _Int’l Infliction Emotional Distress

(All — individually and officially) (Moorhead)

Count VIII Negl. Per se 24 VIC § 451(a) — Retaliation Count VIII —_-Retaliatory Discharge 24 VIC § 45la

(All) (All)

Count IX Viol. Whistleblower Prot. Act 10 VIC § 121

(All)

Count X Negligent Supervision and Retention

(Government)

DISCUSSION



44 “Rule 15(a)(2) of the Virgin Islands Rules of Civil Procedure states that in cases not

described in V.I. R. Civ. P. 15(a)(1) ‘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.’

Amendments are within the sound discretion of the Superior Court and, as a result, the Superior

Court may deny a request to amend so long as it articulates a sound justification. Appropriate

justifications include, but are not limited to, ‘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, [and] futility of the

amendment[.]’” Basic Servs., Inc. v. Gov't of the V.I., 2019 VI 21, at J 26 (V.I. 2019) (citing

Reynolds v. Rohn, 2019 VI 8, at § 25 (V.I. 2019); Foman v. Davis, 371 U.S. 178, 182 (1962);

Anthony v. Indep. Ins. Advisors, Inc., 56 V.1. 516, 534 (V.I. 2012).



{5 Plaintiff seeks leave to file her Third Amended Complaint by her Motion and Substitute

Motion, filed after the close of discovery and with trial date pending, two and a half years from

the date of her initial Complaint, and a year and a half from her First Amended Complaint. “The

question of undue delay, as well as the question of bad faith, requires that we focus on the

plaintiff[’s] motives for not amending [her] complaint to assert this claim earlier; the issue of

prejudice requires that we focus on the effect on the defendant[].” Hartzog v. United Corp., 2011

V.I. LEXIS 95, at *3 (V.I. Super. 2011) (citing Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir.



1984). “‘[P]rejudice to the non-moving party is the touchstone for the denial of an amendment.’”

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Id. citing Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (quoting Cornell & Co. v.

Occupational Safety & Health Rev. Comm’n, 573 F.2d 820, 823 (3d Cir. 1978)).



{8 Plaintiff's Motion is untimely and would subject Defendants to delay. Nonetheless,

“[D]elay alone is an insufficient ground to deny leave to amend.” Jd. at *6 (citing Cureton y. Nat'l

Coll. Athl. Ass’n, 252 F.3d 267, 273 (3d Cir. 2001)). “The passage of time, without more, does not

require that a motion to amend a complaint be denied; however, at some point, the delay will

become ‘undue,’ placing an unwarranted burden on the court, or will become ‘prejudicial,’ placing

an unfair burden on the opposing party.” Jd. (citing Adams, 739 F.2d at 868). “Thus, while bearing

in mind the liberal pleading philosophy of the federal rules, the question of undue delay requires

that we focus on the movant’s reasons for not amending sooner.” Jd. at *6-7, (citing Cureton, 252

F.3d at 273). “Delay may become undue when a movant has had previous opportunities to amend

a complaint.” Jd. at *7. “When a party fails to take advantage of previous opportunities to amend,

without adequate explanation, leave to amend is properly denied.” Jd. (citing Arthur v. Maersk,

Inc., 434 F.3d 196, 204 (3d Cir. 2006)).



{9 Here, Plaintiff had two and a half years within which to seek leave to amend her First

Amended Complaint. Her rationale of the need for amendment arose when she “recognized that

the First Amended Complaint needed streamlining and revision, based on the same original

operative facts, to update and more clearly articulate the specific causes of action pled, the proper

Defendants in each, and to modify the relief sought...” Yet, Plaintiff has failed to articulate why

she waited until discovery was closed and trial pending to come to that recognition. Her delay here

is deemed undue and requires the review of prejudice, “the touchstone for the denial of leave to

amend.” Halliday v. Foot Locker Specialty, Inc., 2014 V.I. LEXIS 92, at *7 (V.I. Super. 2014),



and cases cited therein.



410 Plaintiff submits that her proposed Second (and Third) Amended Complaint are “based on

the same original operative facts.” While this may be accurate, the allegations of liability presented

vary substantially, such that Defendants’ discovery was geared to claims that Plaintiff seeks to

significantly revise. “The issue of prejudice requires that we focus on the hardship to the

defendants if the amendment were permitted. [W]hether allowing an amendment would result in



additional discovery, cost, and preparation to defend against new facts or new theories” are all

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factors the Court must consider. Hartzog v. United Corp., at *22 (citing Cureton, 252 F.3d at 273

(citation omitted)). Since discovery was closed prior to Plaintiffs Motion and Substitute Motion,

all Defendants’ discovery was based upon their defense to the allegations of the First Amended



Complaint. To permit amendment in this setting would clearly prejudice Defendants.



{11  “[Whhen late tendered amendments involve new theories of recovery and impose additional

discovery requirements, courts are less likely to find [on appeal] an abuse of discretion due to the

prejudice involved.” Beil y. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998) See Dover

Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 448 (8th Cir. 1995) (finding no abuse of

discretion where trial was less than a month away, the discovery deadline was within a week of

the motion to amend, and the amendment, adding a new theory of recovery, would leave the

opposing party inadequate time to prepare); Vitale v. Aetna Cas. & Sur. Co., 814 F.2d 1242, 1252

(8th Cir. 1987) (finding no abuse where the denied motion was made less than two months before

trial, no reason was given for the delay, and the amendment may have required additional



discovery on the new factual allegations).



{12 Here, the proposed Third Amended Complaint would “involve new theories of recovery

and impose additional discovery requirements.” Bell v. Allstate, 160 F.3d at 454. Plaintiff's

untimely amendment, presented without explanation of the timing of her request, if permitted,

would prejudice Defendants by denying them discovery on new claims of liability and leaving



them inadequate time to prepare for trial.



{13 The Government Defendants focus their Opposition to the Motion on the purported futility

of the proposed amendments. “Futility refers to the complaint, even after amendment, failing to

state a claim upon which relief could be granted.” Hartzog, 2011 V.I. LEXIS 95, at *9 (citing Jn

re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)). Among other claims,

Plaintiff seeks to add a claim under Title 10 V.I.C. § 122, the Whistleblower Protection Act. This

claim is futile because it is outside the statute of limitations. By 10 V.1.C. § 123(a), “a person who

alleges a violation of this chapter may bring a civil action for appropriate injunctive relief, or actual

damages or both, within ninety days after the occurrence of the alleged violation of the provisions

of this chapter.” Plaintiff's alleged improper termination from employment occurred April 1, 2015,



such that her civil action under that statute had to be filed within 90 days, by July 1, 2015, some

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16 months prior to the date Plaintiff filed here Complaint. As such that proposed new statutory



claim is futile as out of time, such that no relief could be granted.



{14 There is no need for analysis of Defendants’ other various claims of futility which largely

attack the merits of Plaintiff's claims and are more properly considered in a dispositive motion



rather than at the pleading stage.



715 As noted, the Court finds that the factors of undue delay and prejudice to Defendants

require the denial of Plaintiff's Motion and Substitute Motion. The Court does not find question

the motives behind the timing of the proposed amendments and accepts Plaintiff's assertion that

following review in preparing for trial she saw a need to make changes. Yet, “all of the facts were

available to plaintiff before she amended her complaint (and most were known before she filed her

original complaint), and she had numerous opportunities to correct any deficiencies.” Hartzog,

2011 V.I. LEXIS 95, at *23 (citing USX Corp. v. Barnhart, 395 F.3d 161, 169 (3d Cir. 2004))

(citing Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993)).



{16 For the reasons set forth herein, Plaintiff's Motion for Leave to File Second Amended

Complaint and Motion for Leave to File Third Amended Complaint will be denied. As such, it is



hereby



ORDERED that Plaintiff's Motion for Leave to File Second Amended Complaint and

Motion for Leave to File Third Amended Complaint are DENIED.



DATED: August Z 6 2019. ONT4 eae



DOUGLAS A. BRADY, e



Clerk Supervisor t / Y