Bever et al v. A. Duie Pyle et al, No. 5:2008cv00117 - Document 33 (N.D.W. Va. 2009)

Court Description: MEMORANDUM OPINION AND ORDER granting 29 Motion for Leave to File Amended Complaint. Clerk directed to file Amended Complaint. Plaintiffs are to serve the amended complaint on defendants. Party Donald Layman substituted for John and/or Jane Doe. Signed by Senior Judge Frederick P. Stamp, Jr on 12/3/09. (cc)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA THOMAS M. BEVER and DEBORAH BEVER, Plaintiffs, v. Civil Action No. 5:08CV117 (STAMP) A. DUIE PYLE, INC., a foreign corporation, a/k/a PYLE TRANSPORT SERVICES, a foreign corporation and JOHN and/or JANE DOE, Defendants. MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT I. Background The plaintiffs, Thomas M. Bever and Deborah Bever, filed a complaint alleging various physical resulting from an automobile accident. and emotional injuries The plaintiffs have now filed a motion for leave to file an amended complaint substituting Donald Layman for defendant John and/or Jane Doe to which defendant A. Duie Pyle, Inc. filed a response stating that it has no objection to the amendment. The plaintiffs did not reply. For the reasons set forth below, the plaintiffs motion for leave to amend complaint their complaint is granted. II. Federal Rule of Applicable Law Civil Procedure 15(a)(1)(A) states, in pertinent part, that [a] party may amend its pleading once as a matter of course . . . before being served with a responsive pleading. If a party seeks to amend its pleadings in all other cases, it may only do so with the opposing party s written consent or the court s leave. justice so requires. Rule 15(a) The court should freely give leave when Fed. R. Civ. P. 15(a)(2). grants the district court broad discretion concerning motions to amend pleadings, and leave should be granted absent some reason 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. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Ward Elec. Serv. v. First Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987); Gladhill v. Gen. Motors Corp., 743 F.2d 1049, 1052 (4th Cir. 1984). III. Discussion The plaintiffs seek to amend their complaint to change and/or substitute and/or add Donald Layman for defendant John and/or Jane Doe so as to assert a direct cause of action against Donald Layman. This amendment does not constitute an unfair surprise or prejudice to the defendants. Further, the amended complaint is not futile as it relates back to the original complaint. In response, defendant A. Duie Pyle, Inc. does not object to the plaintiffs request to file an amended complaint. After a review of the record, this Court concludes that the plaintiffs have not exhibited any undue delay, bad faith, or 2 dilatory motive. Moreover, the prejudice to the defendants is not significant as to prevent this Court from allowing the amendment, and this Court cannot conclude that the plaintiffs amendment would be futile, as it relates back to the original complaint. Accordingly, this Court grants the plaintiffs motion for leave to file an amended complaint to substitute Donald Layman for defendant John and/or Jane Doe. IV. Conclusion For the reasons set forth above, the plaintiffs motion for leave to amend complaint to substitute Donald Layman for defendant John and/or Jane Doe is hereby GRANTED. The Clerk is DIRECTED to file the amended complaint, which was attached as Exhibit A to the plaintiffs motion for leave to file an amended complaint, Docket No. 29. The plaintiffs are DIRECTED to serve the amended complaint on the defendants. The parties served with the amended complaint shall make any defenses pursuant to Federal Rule of Civil Procedure 12 and any counterclaims or cross-claims pursuant to Federal Rule of Civil Procedure 13. IT IS SO ORDERED. The Clerk is directed to transmit a copy of this memorandum opinion and order to counsel of record herein. DATED: December 3, 2009 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 3

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