2018 WL 6249715

United States District Court, E.D. Pennsylvania.
ANDREW BRACKEN
v.
DOLGENCORP, LLC, et al.
CIVIL ACTION NO. 18-4703
|
Filed 11/29/2018

MEMORANDUM
KEARNEY, J.
*1 A Philadelphia tractor trailer operator sued companies from outside Pennsylvania in the Philadelphia state court for permanent personal injuries, including spinal damage, suffered when a trailer lift gate malfunctioned. He served his state court complaint in late August 2018. While defendants in state court actions may remove to federal court a case seeking more than $75,000 between completely diverse parties, they must do so within thirty days of when they can reasonably and intelligently conclude the case involves more than $75,000. Congress does not allow parties to sit on their rights and remove a state court case to this Court long after knowing the case is within our subject matter jurisdiction. We today review a defendant’s removal filed more than thirty days after service of the complaint upon it. The issue is whether the complaint served in late August 2018 allowed defendants to reasonably and intelligently conclude the tractor trailer operator seeks more than $75,000. If so, removal in November 2018 is untimely. The complaint allowed the defendants to reasonably and intelligently conclude the tractor trailer operator suffered damages more than $75,000 based on permanent spinal and nervous system injuries, ongoing medical care, lost wages and lost earning capacity. He alleged these injuries and losses which defendants knew upon service even though he did not specify the dollar amount until weeks ago. After careful review, we remand this case to the Philadelphia Court of Common Pleas.

I. Background
Philadelphian Andrew Bracken sued out-of-state Dolgencorp, LLC d/b/a Dollar General (“Dolgencorp”), Dollar General Corporate Headquarters, Dollar General Distribution Center, Werner Enterprises, and Pennsylvania citizen Stephen Kujovsky in the Philadelphia County Court of Common Pleas on August 8, 2018.1

Mr. Bracken plead personal injury suffered while unloading goods into a trailer at a Dollar General store in Elmira, New York. He swears to suffering “severe and permanent injuries to his body which include but are not limited to, herniations to the lumbar spine and corresponding radiculopathy … internal injuries of an unknown nature … severe aches, pains, mental anxiety and anguish and a severe shock to his entire nervous system and other injuries the full extent of which is not yet known … [and] aggravation and/or exacerbation of injuries both known and unknown.”2 He alleges he “has in the past and will in the future undergo severe pain and is unable to attend to his usual duties and occupation, all to his great financial detriment and loss.”3 He “has been compelled to effectuate a cure for [his] injuries, to expend large sums of money for medicine and medical attention and may be required to expend additional sums for the same purpose in the future”; “has been prevented from attending to his usual daily activities and duties, and may be so prevented for an indefinite period of time in the future …”; “has suffered physical pain and mental anguish and humiliation and may continue to suffer same for an indefinite period of time in the future”; and “has suffered loss of wages and earning capacity.”4 He brings negligence claims against Dolgencorp, Mr. Kujovsky, and Werner Enterprises each for damages in excess of $50,000.5

*2 Mr. Bracken served Dolgencorp and Dollar General Corporate Headquarters on August 20, 2018;6 Mr. Kujovsky on August 22, 2018;7 and Dollar General Distribution Center on August 29, 2018.8 We have no evidence of service on Defendant Werner Enterprises. On August 29, 2018, counsel for Dolgencorp and Mr. Kujovsky entered his appearance in the state court action.9

On November 1, 2018, seventy-two days after service on Dolgencorp and seventy days after service on Mr. Kujovsky, Dolgencorp filed a Notice of Removal in this Court.10 Dolgencorp invoked our diversity jurisdiction alleging the amount in controversy exceeds $75,000 and all parties are diverse. Dolgencorp argued his removal is timely because Mr. Bracken’s complaint did not provide a “good faith basis to determine an amount in controversy.”11 Dolgencorp removed on November 1, 2018 swearing it first received notice of the amount of controversy on October 29, 2018, when Dolgencorp’s “counsel sought a settlement demand from Plaintiff’s counsel and was advised for the first time that a demand could not be made as the Plaintiff was still in treatment and there was potential for surgical intervention.”12

On November 9, 2018, Dolgencorp filed an Amended Notice of Removal.13 The Amended Notice now claimed Mr. Bracken filed a November 2, 2018 Case Management Conference Memorandum with the Pennsylvania Court of Common Pleas representing medical bills of $20,304.67; past lost wages of $90,371.58; a workers’ compensation lien of $110,676.25; and a total demand of $650,000.14 Dolgencorp argued the Memorandum constituted “further evidence that the requisite amount in controversy is satisfied.”15

II. Analysis
Mr. Bracken moves to remand arguing Dolgencorp’s removal is untimely because it should have “reasonably and intelligently concluded” the amount in controversy exceeded $75,000 when it received service of the complaint on August 20, 2018.16 Dolgencorp argues its notice of removal is timely because Mr. Bracken’s complaint contains general conclusory boilerplate allegations of injury insufficient to have allowed it to make a reasonable and intelligent conclusion regarding the amount in controversy.17 Dolgencorp contends the complaint did not “provide a good faith basis to determine an amount in controversy.”18 It contends it did not know damages exceeded $75,000 until it sought a settlement demand from Mr. Bracken on October 29, 2018, when Dolgencorp “was advised for the first time that a demand could not be made as the Plaintiff was still in treatment and there was potential for surgical intervention.”19

The Defendants may remove “any action brought in a State court of which the district courts of the United States have original jurisdiction … to the district court of the United States for the district and division embracing the place where such action is pending.”20 A defendant may remove a civil action where the amount in controversy exceeds $75,000 and is between citizens of different states.21 Removal statutes “are to be strictly construed against removal and all doubts should be resolved in favor of remand.”22 “[T]he party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court.”23

*3 A defendant must file a notice of removal “within 30 days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.”24 The initial thirty-day period for removal “is only triggered when ‘the four comers of the pleading … inform[ ] the reader, to a substantial degree of specificity, [that] all the elements of federal jurisdiction are present.’ ”25 If removability of an action is not apparent from the face of the initial pleading, “a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”26 “[C]ourts typically require that an ‘other paper’ … consist of a written document,” not oral communications.27

The thirty-day period begins to run when a defendant can “reasonably and intelligently conclude that the amount in controversy exceeds the jurisdictional minimum.”28 The burden of proof is on the party attempting removal “to assess and ascertain the amount in controversy within the 30-day time limit for removal provided in Section 1446(b).”29 A pleading need not “allege a specific dollar amount to give notice to the defendant of the existence of Federal jurisdiction.”30 “[I]n the context of a personal injury lawsuit between diverse parties, ‘severe injuries along with pain and suffering will alert [the] defendant that an amount in excess of [the jurisdictional amount] is at issue and trigger the running of the thirty-day removal period.’ ”31

The allegations in Mr. Bracken’s complaint mirror the allegations in other cases in which courts have found defendants had notice of a removable amount in controversy. In Russo v. Wal-Mart Stores East, for instance, the plaintiff alleged he suffered “severe and painful injuries[,] will continue to suffer great pain and agony in the future, has already expend[ed] various sums of money for medical care and attention, and will continue to spend various sums of money for medical care and attention.”32 Although the Russo plaintiff only alleged an amount in excess of $40,000 in his complaint, Judge Munley remanded the case based on the plaintiff’s allegations of “severe and painful injuries” he alleged will continue to suffer in the future, and for which he alleged “expend[ed] various sums of money for medical care and attention,” continuing in the future.33 Likewise, in Peters v. Stop & Shop, the court remanded a case in which the plaintiff claimed no specific amount but alleged she “suffered severe, permanent disabling injuries, serious disfigurement, has undergone and will undergo great pain and suffering, [and] has been and will be forced to undergo extensive medical treatment for her injuries.”34 Russo and Peters comport with similar cases.35

*4 Like the Russo and Peters plaintiffs, Mr. Bracken alleged more than necessary for any defendant to reasonably and intelligently conclude the amount in controversy exceeded $75,000. Mr. Bracken alleged he suffered “severe and permanent injuries,”36 which included herniations and radiculopathy. He alleged “great financial detriment and loss,”37 “loss of wages and earning capacity,”38 and often noted his injuries and financial damages could worsen in the future. Similarly, Mr. Bracken claimed he could not perform the usual activities of his daily life and may not be able to for an “indefinite”39 period in the future. He alleged these damages after setting a $50,000 floor by explicitly alleging a sum in excess of $50,000 plus other costs. While boilerplate allegations will not suffice but Mr. Bracken had no obligation to plead the particular amount in controversy; rather, Dolgencorp shouldered the burden to “assess and ascertain the amount in controversy.”40 Resolving all doubts in favor of remand,41 we find these allegations sufficed to put more than $75,000 in controversy.

We acknowledge other courts have denied remand where the complaints included similar allegations.42 But this analysis is fact-centered in each case – we cannot assume the same buzzwords have the same monetary impact compared to the static $75,001 threshold. And we are not persuaded by these cases in light of Dolgencorp’s reasoning for its late removal (an oral representation of necessary surgery and later dollar amounts), the pleaded severity and permanence of the spinal injuries and the nature of medical costs in 2018 as opposed to medical care ten years ago. For example, in Young, the court found the state court complaint seeking damages for a slip and fall injury at a Wal-Mart store did not provide information concerning employment and financial status. Dolgencorp’s other cited authorities are based on the alleged costs of medical care approximately ten years ago and none involve the reason Dolgencorp claims it only found out in November: an oral representation of continuing medical care or a case management memorandum filed in state court after the notice of removal consistent with the injuries alleged in the complaint. These removal grounds do not excuse the late removal given a fair reading of the complaint served in late August 2018.

*5 The oral representations of ongoing medical care are not notice. Dolgencorp argues it first received notice of the amount of controversy on October 29, 2018, when Dolgencorp “sought a settlement demand from Plaintiff’s counsel and was advised for the first time that a demand could not be made as the Plaintiff was still in treatment and there was potential for surgical intervention.”43 This oral representation is not a ground for removal. These facts are fairly read from the complaint.

In an amended notice of removal, Dolgencorp based its notice of the amount of controversy upon receipt of some “other paper” making the case removable, which in this case is Mr. Bracken’s November 2, 2018 Case Management Conference Memorandum.44 This memorandum is filed after the removal to this Court. The November 2, 2018 Memorandum reports medical bills of $20,304,67; past lost wages of $90,371.58; a workers’ compensation lien of $110,676.25;45 and a total demand of $650,000. Had Dolgencorp “look[ed] at the entire complaint and beyond the narrow confines of its ad damnum clause,”46 it would have realized the possibility of such costs earlier. Mr. Bracken alleged he spent large sums on medical care and “may be required to expend additional sums for the same purpose in the future.”47 He so alleged after noting he suffered herniations to the lumbar spine, radiculopathy, and other severe injuries, the “full extent of which is not yet known.” Likewise, Mr. Bracken pleaded he could not attend his usual activities and duties for an indefinite period of time. Because it is Dolgencorp’s burden to assess the amount in controversy, it cannot argue ignorance of future costs when Mr. Bracken pleaded those possibilities. His November 2, 2018 writing only confirms the nature of the injuries.

Dolgencorp also argues Mr. Bracken failed to plead a specific damage figure other than pleading an amount in “excess of” $50,000. But under the Pennsylvania Rules of Civil Procedure, Mr. Bracken could only plead whether the amount in controversy exceeded “the jurisdictional amount requiring arbitration referral by local rule,” which, in Philadelphia, is $50,000.48 Indeed, Pennsylvania’s rules “prohibited [plaintiff] from being any more specific” than he plead.49

III. Conclusion
Dolgencorp should have removed this action in September 2018 within thirty days of service of the Complaint because it could have reasonably and intelligently concluded the amount in controversy exceeded $75,000. Because Dolgencorp failed to timely remove, we remand this case to state court in the accompanying Order.

All Citations
Slip Copy, 2018 WL 6249715

Footnotes

1
ECF Doc. No. 6-1 (Ex. A). Mr. Bracken now concedes Pennsylvania citizen Mr. Kujovsky may be dismissed and should not be considered for our diversity analysis. ECF Doc. No. 7 at 10. We would have subject matter diversity jurisdiction if Mr. Bracken initially chose this Court.

2
ECF Doc. No. 6-1 at ¶ 15.

3
Id.

4
Id. at ¶¶ 16–19.

5
Under Pennsylvania Rule of Civil Procedure 1021, Mr. Bracken’s demand “shall not claim any specific sum.” A claim for damages in excess of $50,000 makes an action ineligible for compulsory arbitration in the Philadelphia County Court of Common Pleas. See Phila. Court of Common Pleas Civil Rule *1301.

6
ECF Doc. No. 6-1 (Ex. B).

7
Id. (Ex. C).

8
Id. (Ex. E).

9
Id. (Ex. F). The entry of appearance indicates Dolgencorp is “incorrectly identified as Dollar General Distribution Center and Dollar General Corporate Headquarters.” We refer to Dolgencorp, LLC d/b/a Dollar General, Dollar General Corporate Headquarters, and Dollar General Distribution Center collectively as “Dolgencorp.”

10
ECF Doc. No. 1. Defendant Werner Enterprises consented to the removal. Id. at ¶ 23.

11
Id. at ¶ 5.

12
Id. at ¶ 16.

13
ECF Doc. No. 5.

14
Id. at Ex. B.

15
Id. at ¶ 8.

16
ECF Doc. No. 6 at ¶ 11.

17
ECF Doc. No. 8 at ¶ 11.

18
ECF Doc. No. 1 at ¶ 5.

19
Id. at ¶ 6.

20
28 U.S.C. § 1441(a).

21
See 28 U.S.C. § 1332(a)(1).

22
A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 208 (3d Cir. 2014) (quoting Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992)).

23
Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007) (citing Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004)).

24
28 U.S.C. § 1446(b)(1).

25
In re Asbestos Products Liab. Litig., 770 F.Supp. 2d 736, 739–40 (E.D. Pa. 2011) (quoting Foster v. Mut. Fire Marine & Inland Ins. Co., 986 F.2d 48, 53 (3d Cir. 1993), rev’d on other grounds by Murphy Bros, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)).

26
28 U.S.C. § 1446(b)(3).

27
Boggs v. Harris, 226 F. Supp. 3d 475, 491–92 (W.D. Pa. 2016) (quoting Cabibbo v. Einstein/Noah Bagel Partners, L.P., 181 F.Supp. 2d 428, 431 (E.D. Pa. 2002) (collecting cases finding oral statements do not trigger the thirty-day removal period).

28
Coralluzzo v. Darden Rests., Inc., No. 13-6882, 2015 WL 4713275, at *2 (E.D. Pa. Aug. 6, 2015) (quoting Johnson v. Tesla Motors, Inc., No. 13-5106, 2013 WL 5834442, at *2 (E.D. Pa. Oct. 30, 2013)); Huberman v. Interval Leisure Grp., Inc., No. 15-1560, 2015 WL 2365585, at *2 (E.D. Pa. May 18, 2015) (quoting Sims v. PerkinElmer Instruments, LLC, No. 04-3773, 2005 WL 746884, at *2 (E.D. Pa. Mar. 31, 2005)); Davis v. Donnelly, No. 14-6163, 2015 WL 765988, at *3 (E.D. Pa. Feb. 24, 2015) (citing Sims, 2005 WL 746884, at *2); Ricketts v. Wal-Mart Stores East, LP, No. 13-7585, 2014 WL 2514615, at *2 (E.D. Pa. June 3, 2014) (citing Johnson, 2013 WL 5834442, at *2); Judge v. Phila. Premium Outlets, No. 10-1553, 2010 WL 2376122, at *3 (E.D. Pa. June 8, 2010) (citing Sims, 2005 WL 746884, at *2).

29
Russo v. Wal-Mart Stores East, L.P., No. 17-454, 2017 WL 1832341, at *2 (M.D. Pa. May 8, 2017) (citing Carroll v. United Airlines, Inc., 7 F. Supp. 2d 516, 521 (D.N.J. 1998)).

30
McMillan v. Wilkie Trucking, Inc., No. 13-7104, 2014 WL 695583, at *2 (E.D. Pa. Feb. 21, 2014) (quoting Sims, 2005 WL 746884, at *2).

31
Russo, 2017 WL 1832341, at *2 (alterations in original) (quoting Carroll, 7 F. Supp. 2d at 521–22).

32
Id. (alterations in original) (internal quotations omitted).

33
Id.

34
No. 13-6085, 2013 WL 5781199, at *3 (D.N.J. Oct. 25, 2013).

35
See Lewis v. FCA U.S. LLC, No. 15-2811, 2015 WL 3767521, at *2 (E.D. Pa. June 17, 2015) (remanding where plaintiff alleged various medical issues, “agonizing aches, pains and mental anguish; and she has been disabled from performing her usual duties, occupations and avocations”); Sims, 2005 WL 746884, at *3 (remanding where plaintiff alleged “severe and disabling injuries to the bones, muscles, blood vessels, tissues, nerves and tendons of her right lower leg, including but not limited to an injury to her Achilles tendon of her right heel”); Carroll, 7 F. Supp. 2d at 522 (remanding where the plaintiff alleged “disability, impairment, loss of enjoyment of life, pain and suffering, and he will suffer in the future”).

36
ECF Doc. No. 6-1 (Ex. A at ¶ 15).

37
Id.

38
Id. (Ex. A at ¶ 19).

39
Id. (Ex. A at ¶ 17).

40
Carroll, 7 F. Supp. 2d at 521.

41
Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (internal quotations omitted).

42
See Young v. Wal-Mart Stores E., LP, No. 14-06692, 2015 WL 1137089, at *4 (E.D. Pa. Mar. 12, 2015) (denying remand where plaintiff failed to allege “concrete numbers or related facts from which defendant could reasonably calculate the amount in controversy,” and collecting cases holding the same); Davis, 2015 WL 765988 at*4 (in motor vehicle injury, denying remand where plaintiff’s allegations of injury to head, body and limbs, nerves and nervous system, and loss of earnings are boilerplate and fail to denote magnitude of physical and financial injuries sufficient for defendant to calculate the amount in controversy); Alston v. Wal-Mart Stores East, L.P., No. 12-3491, 2012 WL 4321973, at * 2 (E.D. Pa. Sept. 20, 2012) (denying remand in a slip and fall case where plaintiff’s general allegations of injury, including a fractured ankle, sufficient to put defendant on notice the amount in controversy exceeds jurisdiction threshold); Innaganti v. Columbia Props. Harrisburg, LLC, No. 10-1651, 2010 WL 2136597, at *3 (E.D. Pa. May 25, 2010) (denying remand in slip and fall case where plaintiff’s alleged injuries, including to her back, failed to identify a precise injury or medical condition or financial injury sufficient to give defendants adequate notice of the amount in controversy); Bishop v. Sam’s East, Inc., No. 08-4550, 2009 WL 1795316, at *3-*4 (E.D. Pa. June 23, 2009) (denying remand in a slip and fall case finding plaintiff’s alleged injuries to knee, nerves and nervous system, “various other ills and injuries,” future medical costs, and wage loss are boilerplate failing to indicate magnitude of reduced earnings and other damages sufficient to allow defendant to make determination); Brown v. Modell’s PA II, Inc., No. 08-1528, 2008 WL 2600253, at *2, n.4 (E.D. Pa. July 1, 2008) (ten-year-old case denying remand in trip and fall case where plaintiff aggravated a lumbar-sacral condition requiring two surgeries and sustained injuries to hand and wrist, bruises and contusions to hand, exacerbated prior and pre-existing injuries resulting in injuries to hand and nervous system sufficient for defendant to make determination); Marchiori v. Vanguard Car Rental USA, Inc., No. 05-5685, 2006 WL 724445, at *2 (E.D. Pa. Mar. 17, 2006) (denying remand where plaintiff’s allegations of head fracture, injuries to foot and wrist insufficient to put defendants on notice claimed damages exceed jurisdictional threshold); Miranda v. Southland Corp., No. 91-3267, 1991 WL 142648, at * 2 (E.D. Pa. July 22, 1991) (denying remand in slip and fall case where plaintiff alleged injuries to knee sufficient to allow defendant to determine damages exceeded jurisdictional threshold).

43
ECF Doc. No. 5 at ¶ 6.

44
28 U.S.C. § 1446(b)(3).

45
Before he sued, Mr. Bracken sent a demand package which included a workers’ compensation lien totaling $112,653.30 to Dollar General’s insurance adjuster. ECF Doc. No. 6-1 (Ex. H). We will not consider the demand package as evidence of notice to Dolgencorp. First, we have no proof Dolgencorp saw the demand package. It appears for the first time in Mr. Bracken’s Motion to Remand. See Davis, 2015 WL 765988, at *5, n. 5. Second, to constitute an “other paper” which would trigger the thirty-day removal period, courts have held the defendant must receive the paper after the plaintiff files the complaint. Rosenfield v. Forest City Enterprises, L.P., 300 F. Supp. 3d 674, 680 (E.D. Pa. 2018).

46
Russo, 2017 WL 1832341, at *2 (alterations in original) (quoting Carroll, 7 F. Supp. 2d at 521–22).

47
ECF Doc. No. 6-1 (Ex. A at ¶ 16).

48
Pa.R.C.P. No. 1021(c).

49
Lewis, 2015 WL 3767521, at *2 (citing 42 Pa. Cons. Stat. § 7361(b)).

2018 WL 6273666

United States District Court, D. Maryland.
Lee BEAUDOIN
v.
ACCELERATED LOGISTICS, LLC, et al.
Civil No. CCB-17-2569
|
Signed 11/30/2018
Attorneys and Law Firms
Michael Brook, Duane Morris LLP, Baltimore, MD, Ugo Colella, Duane Morris LLP, Washington, DC, for Lee Beaudoin.
Matthew T. Angotti, Ariana K. DeJan-Lenoir, Anderson Coe and King LLP, Baltimore, MD, for Accelerated Logistics, LLC, Accelerated Services LLC.

MEMORANDUM
Catherine C. Blake, United States District Judge
*1 Lee Beaudoin (“Beaudoin”) has sued Accelerated Logistics, LLC and Accelerated Services, LLC (“Accelerated”), alleging negligence, assault, and battery. Currently pending before the court are three motions. First, Beaudoin has filed a motion to amend the complaint. Second, Beaudoin has filed a motion for sanctions for the spoliation of evidence. Third, Accelerated has filed a motion for summary judgment as to the counts of assault and battery and the plea for punitive damages. For the reasons stated below, Beaudoin’s motion to amend the complaint and her motion for sanctions for spoliation of evidence will be denied, and Accelerated’s motion for summary judgment will be granted.

BACKGROUND
This case arises out of an accident that occurred on February 9, 2017, in the Royal Farms parking lot at 1200 Ponca Street in Baltimore, Maryland. (Compl. ¶ 7, ECF No. 2). Leonard Moore (“Moore”), driving a tractor trailer owned by Accelerated, and carrying nine vehicles, attempted to make a left turn into traffic to leave the Royal Farms parking lot. (Beaudoin Dep. 38:2–14, 40:8–22). Beaudoin was stopped behind the tractor trailer when the trailer began backing up towards her car. (Id. 40:3–5; 41:23, 42:15–16). Beaudoin honked her horn and attempted to get the tractor trailer driver’s attention. (Beaudoin Aff. ¶ 2)., Despite Beaudoin’s efforts to attract Moore’s attention, the tractor trailer struck Beaudoin’s car, crushing the front of the vehicle. (Id.). Subsequently, the tractor trailer left the parking lot. (Beaudoin Dep. 47:14). Beaudoin brought suit against Accelerated alleging negligence, assault, and battery. (Compl. ¶¶ 17–52). Beaudoin seeks monetary relief, including punitive damages. (Id. ¶¶ 26, 41, 52).

ANALYSIS

I. Motion to Amend the Complaint
Beaudoin moved to amend the complaint to add Leonard Moore as a defendant, and to add causes for negligent hiring and retention, negligent supervision and training, and negligent entrustment.1 Because the deadline to amend the pleadings set by the court’s scheduling order has expired, the court must conduct a two-step inquiry to determine if amendment is appropriate: (1) has Beaudoin satisfied the good cause standard set by Rule 16(b)?; and (2) if Rule 16(b)’s strictures are satisfied, is amendment of the complaint proper under Rule 15(a)? See Nourison Rug Corp. v. Parvizicm, 535 F.3d 295, 298–99 (4th Cir. 2008); Wonasue v. Univ. of Maryland Alumni Ass’n, 295 F.R.D. 104, 106–07 (D. Md. 2013).

*2 Rule 16(b)’s good cause standard “requires the party seeking relief [to] show that the deadlines cannot reasonably be met despite the party’s diligence.” McMillan v. Cumberland Cty. Bd. of Educ., 734 F. App’x 836, 845 (4th Cir. 2018) (quoting Cook v. Howard, 484 Fed. App’x. 805, 815 (4th Cir. 2012) ).2 “[T]he 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.” McMillan, 734 F. App’x at 845 (quoting Cook, 484 Fed. App’x. at 815). The facts the court should consider, include whether the non-moving party could be prejudiced by the delay, the length of the delay, and whether the movant acted in good faith. Tawwaab v. Va. Linen Serv., Inc., 729 F.Supp.2d 757, 768–69 (D. Md. 2010).

Rule 15(a)(2) holds that a court should “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “[D]enial of leave to amend is appropriate when (1) the amendment would be prejudicial to the opposing party; (2) there has been bad faith on the part of the moving party; or (3) the amendment would have been futile.” Drager v. PLIVA USA, Inc., 74.1 F.3d 470, 474 (4th Cir. 2014).

Beaudoin has not established good cause to amend the complaint. Even though the court set a February 12, 2018, deadline for joinder of additional parties and amendment of the pleadings, (Scheduling Order, ECF No. 11), Beaudoin did not move to amend the complaint until May 3, 2018, (Pl.’s Mot. to Amend Compl., ECF No. 15). Beaudoin explained this delay by noting that though she received a copy of Moore’s employment application, including his background check, Motor Vehicle Record, and Pre-Employment Screening Program Report (“PSP Report”) on January 31, 2018, it was not readable, and a clearer version was not produced by Accelerated until April 30, 2018. (PL’s Reply, Mot. to Amend Compl. at 3, ECF No. 23). Further, Beaudoin did not receive a copy of Accelerated’s hiring guidelines and procedures until May 4, 2018. (Id. at 1–2). And Beaudoin alleged that facts relevant to her proposed additional causes of action did not come to light until Moore’s deposition on April 17, 2018. (Id. at 4). Beaudoin’s arguments are not convincing.

The PSP Report, produced on January 31, 2018, clearly denotes Moore’s previous driving infractions, including speeding, driving beyond the federal 14-hour duty period, and driving a Commercial Motor Vehicle while disqualified. (PSP Report, Ex. 9 at 2–3, EGF No. 18-9). Therefore, even if Beaudoin did not receive a readable-copy of Moore’s employment application until April 30, 2018, she was on notice by January 31, 2018 that Moore’s driving record was far from pristine. Cf. Wcmasue, 295 F.RD. at 108 (finding the plaintiff did not act in good faith when she claimed to have learned facts for the first time in a deposition, but had previously received a personnel file which included the relevant facts). Beaudoin’s notice of these facts prionto the deadline set by the court’s scheduling order distinguishes this case from cases where leave to amend has been granted because entirely new evidence came to light after the scheduling order deadline. See Tawwaab, 729 F.Supp.2d at 770 (good cause to amend found because documents and depositions containing the relevant evidence were not produced or conducted, respectively, until several months after the scheduling order deadline).

*3 Beaudoin alleges that several new facts—beyond the blemishes on Moore’s driving record—came to light during Moore’s deposition. Specifically, that: Accelerated never questioned Moore about discrepancies between his job application and the violations listed in the PSP report; Accelerated never questioned Moore about the suspension of his license; Accelerated never interviewed Moore before hiring him; and Accelerated did not train Moore upon hiring him.3 And Beaudoin emphasizes that she did not receive Accelerated’s hiring guidelines and procedures until after the deadline set by the scheduling order. But a “party need not wait on evidentiary ‘confirmation’ before pleading a claim for which it has a reasonable, good-faith basis.” United States v. Hartford Accident and Indemnity Co., No. JKB-14-2148, 2016 WL 386218, at *6 (D. Md. Feb. 2, 2016). The PSP Report provided the requisite factual predicates for the claims of negligent hiring and retention, negligent supervision and training, and negligent entrustment that Beaudoin now seeks to add. The additional facts that came to light during Moore’s deposition may have colored these claims, but they are by no means necessary prerequisites. And if Beaudoin believed she could not assert these claims without first reviewing Accelerated’s hiring guidelines and practices she could have moved to extend the deadline for amendment of pleadings. See Hartford Accident, 2016 WL 386218, at *6. Because Beaudoin received information about Moore’s history of driving infractions before the deadline set to amend the pleadings, the court finds Beaudoin did not act diligently in complying with the scheduling order.

And even if the Rule 16(b)’s good cause standard was satisfied; amendment would be denied under Rule 15(a) because it would unduly prejudice the defendants. “Whether an amendment is prejudicial will often be determined by the nature of the amendment and its timing.” Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006). “[T]he further the case progressed before judgment was entered, the more likely it is that the amendment will prejudice the defendant.” Id.; see also May field v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012) (quoting Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009) ). Beaudoin did not file her motion to amend until six days before the close of discovery. (Scheduling Order at 2, ECF No. 11). And Accelerated has agreed to stipulate to liability—admitting that Moore, driving within the scope of his employment, negligently. operated a tractor trailer and struck Beaudoin’s car. (Correspondence at 2, ECF No. 18-7; Defs.’ Proposed Am. Answer at ¶¶ 18–19, ECF No. 18-8).4 Thus, the additional discovery that would be required if the amendment were permitted is an unnecessary waste of resources.5

II. Motion for Sanctions for the Spoliation of Evidence
*4 Sanctions for the spoliation of evidence are appropriate if a party had a duty to preserve material evidence, and thereafter willfully engaged in conduct resulting in the loss or destruction of that evidence, at a time when the party knew the evidence was relevant to some issue in the litigation. See Turner v. United States, 736 F.3d 274, 282 (4th Cir. 2013).

As to the first element, the duty to preserve evidence arises “not only during litigation but also extends to that period before litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Turner, 736 F.3d at 282 (quoting Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) ). The receipt of an evidence preservation letter triggers the duty to preserve evidence. Sampson v. City of Cambridge, Md. 251 F.R.D. 172, 181 (D. Md. 2008). And “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Thompson v. U.S. Dept. of Housing and Urban Dev., 219 F.R.D. 93, 100 (D. Md. 2003) (quoting Zubulake v. UBS Warburg LL, No. 02 Civ. 1243(SAS), 2003 WL 22410619, at *4 (S.D.N.Y. Oct. 22, 2003) ).

Beaudoin’s counsel sent Accelerated an evidence preservation letter on February 27, 2017. (PL’s Mot. Sanctions for Spoliation of Evidence [“Mot. for Sanctions”] at 2–3, ECF No. 17-1). Accelerated claims they did not receive this letter even though it was faxed to Accelerated’s main fax line. (Reply, Mot. for Sanctions at 7–8, ECF No. 25). But Accelerated’s receipt of the letter is evidenced by Nationwide’s, Accelerated’s insurer, March 13, 2017, acknowledgment of receipt of the letter. (Id.). Because Beaudoin only sent the letter to Accelerated, and no other party, Nationwide could only have received the letter from Accelerated. (Id.). Accelerated therefore had a duty to preserve relevant evidence and implement a litigation hold.

As to the second element, the. spoliator’s conduct must be intentional, though it need not rise to the level of bad faith. Turner, 736 F.3d at 282. Beaudoin claims that Accelerated “acted willfully in their destruction of the driver logs.” (Mot. for Sanctions at 9, ECF No. 17-1). But Beaudoin has offered no evidence that Accelerated willfully destroyed the logbooks. The only evidence Beaudoin points to is Accelerated’s failure to preserve the logbooks after they received the evidence preservation letter. (Id.). But the existence of a duty to preserve evidence and the failure to comply with that duty, without more, does not support a finding of intentional conduct. See Sampson, 251 F.R.D. at 181–82 (holding that sanctions for spoliation of evidence could not be imposed because plaintiff did not present any evidence to establish that documents were intentionally destroyed, even though defendants had a duty to preserve evidence and failed to implement a litigation hold).6

*5 And even if the court were to find that Accelerated acted intentionally in deleting the logbook, Beaudoin must still establish that the logbook is relevant. Evidence is relevant “to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.” Thompson, 219 F.R.D. at 101. And the court’s inquiry into relevance must also include a finding that the spoliation of evidence prejudiced the party moving for sanctions. Victor Stanley, 269 F.R.D. at 531–32. Prejudice is generally presumed when the spoliator acted intentionally. Id. But courts have broad discretion to impose sanctions for spoliation and sanctions “should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.” Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) ). The court cannot assess prejudice without acknowledging Accelerated’s admission of liability for Moore’s negligence. Because Accelerated has stipulated to this liability, Beaudoin does not need the logbooks to substantiate a claim of negligence at trial.

Because the court does not find that Accelerated acted intentionally in destroying the logbooks and because any prejudice to Beaudoin resulting from the logbooks’ destruction is de minimis, the court will not impose sanctions.

III. Motion for Summary Judgment as to Assault, Battery, and Punitive Damages
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphases added). “A dispute is genuine if ‘a reasonable jury could return a verdict for the nonmoving party.’ ” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulcmey v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012) ). “A fact is material if it ‘might affect the outcome of the suit under the governing law.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ). Accordingly, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]” Anderson, 477 U.S. at 247–48. The court must view the evidence in the light most favorable to the nonmoving party, Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam), and draw all reasonable inferences in that party’s favor, Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted); see also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568–69 (4th Cir. 2015). At the same time, the court must “prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993) ).

Accelerated’s motion for summary judgment as to assault, battery, and punitive damages will be granted. Beaudoin has failed to raise a genuine dispute as to intent; no reasonable jury could conclude that Moore intended to hit Beaudoin’s car, or that Moore acted with actual malice. Under Maryland law, intent is an element of both battery and assault. See Nelson v. Carroll, 735 A.2d 1096, 1102 (Md. 1999) (“The rule is widely recognized that when one commits an assault, and in the course of committing the assault that person comes into contact with the person assaulted, the intent element of battery may be supplied by the intent element of the assault.”). Mere accidental or inadvertent conduct that results in harmful contact with another does not rise to the level of assault or battery. Id. at 1101. And in non-intentional tort cases Maryland courts award punitive damages only if the “plaintiff has demonstrated by clear and convincing evidence that the defendant acted with ‘actual malice.’ ” Darcars Motors of Silver Spring, Inc. v. Borzym, 841 A.2d 828, 837 (Md. 2004) (quoting Ownens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 652 (Md. 1992) ). Actual malice is “conduct of the defendant characterized by evil motive, intent to injure, ill will, or fraud.” Darcars; 841 A.2d at 837 (quoting Zenobia, 601 A.2d at 652); see also Villalta, 2008 WL 11366412, at *4.

*6 No reasonable jury could conclude that Moore intended to hit Beaudoin’s car. The only evidence of intent that Beaudoin presents is her statement at the time of the accident that she could see Moore’s right-side mirror and that she “know[s] he could see me,”7 the fact that Beaudoin “was furiously waving at Mr. Moore to get his attention,” and honking her horn and that other motorists were also attempting to get Moore’s attention and that Moore keeps his window cracked. (Response, Opp’n Mot. Summ. J. at 2, ECF No. 26; Beaudoin Aff. ¶ 2). A nonmovant cannot create a genuine dispute of material fact “through mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 141 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) ). Beaudoin has presented no evidence of intent beyond mere speculation that Moore could see her at the time of the accident nor any reason to explain why he would intentionally hit her car. Because no reasonable jury could find Moore committed assault or battery, or is liable for punitive damages without a finding of intentional conduct, the court will grant Accelerated’s motion for summary judgment as to these counts.

CONCLUSION
For the reasons stated above, Beaudoin’s motion to amend the complaint and her motion for sanctions for the spoliation of evidence will be denied. Accelerated’s motion for summary judgment as to assault, battery, and punitive damages will be granted. A separate order follows.

All Citations
Slip Copy, 2018 WL 6273666

Footnotes

1
Based on Accelerated’s pledge to call Moore as a witness if this case proceeds to trial, Beaudoin has withdrawn her request to add Moore as a defendant (Pl.’s Reply, Mot. to Amend Compl. at 1, ECF No. 23). And should Beaudoin reinstate her request to amend the complaint and add Moore as a defendant, the court would likely find good cause lacking. Beaudoin’s counsel expressed a desire to add Moore as a defendant on November 9, 2017, and learned Moore’s name on November 15, 2017, but waited until May 2018, several months after the February 2018, deadline set by the court’s scheduling order, to move to amend the pleadings. (PL’s Reply, Mot. to Amend Compl., Ex. C at 1, ECF No. 23-3; Pl.’s Mot. to Amend Compl., ECF No. 15).

2
Unpublished opinions are cited to for the soundness of their reasoning, not for any precedential value.

3
Beaudoin also alleges that Moore’s failure to take responsibility for crushing Beaudoin’s car and Accelerated’s destruction of Moore’s logbooks support their motion to amend. (Reply, Pl.’s Mot. to Amend Complaint at 4, ECF No. 23). But this evidence does not substantiate the negligent hiring and retention, negligent supervision and training, or negligent entrastment that Beaudoin seeks to add to the complaint. Instead, it speaks to Beaudoin’s motion for sanctions for the spoliation of evidence.

4
The Amended Answer will be approved for filing.

5
What is more, “[u]nder Maryland law, a plaintiff seeking only compensatory damages cannot bring a negligent entrustment claim against an owner of a vehicle, where the owner has admitted that the driver of the vehicle was his agent or employee.” Villalta v. B.K. Trucking & Warehousing, L.L.C., No. DKC-2007-1184, 2008 WL 11366412, at *5 (D. Md. Aug. 4, 2008) (quoting Houlihan v. McCall, 197 Md. 130 (Md. 1951) ). Once vicarious liability has been admitted, “the negligent entrustment claim not only bec[omes] superfluous, but create[s] a pathway for the potential introduction of unfairly prejudicial evidence against the driver in deciding the issue of his negligence.” Day v. Stevens, No. 17-02638-JMC, 2018 WL 2064735, at *4 (D. Md. May 3, 2018). Beaudoin has stated a claim for punitive damages, but as detailed below, the court will grant Accelerated’s motion for summary judgment as to this claim. The addition of a negligent entrustment claim is therefore inappropriate under Maryland law. See also Rispoli v. Jackson, 51 Md. App. 606, 611 (1982) (claims of negligence and negligent entrustment are not “separate and distinct” and therefore a plaintiff that accepts rewards from a negligence count cannot simultaneously appeal a claim of negligent entrustment).

6
At least one court has found that a failure to preserve documents after the duty to preserve evidence was triggered sufficed to support the imposition of sanctions for spoliation. See Broccoli v. Echostar Communications Corp., 229 F.R.D. 506 (D. Md. 2005). But the Broccoli court also found “bad faith” and that the evidence “of a regular policy … of ‘deep-sixing’ nettlesome documents and records (and of the management’s efforts to avoid their creation in the first instance) is overwhelming.” Id. at 511, 512. Beaudoin has not presented analogous evidence of widespread destruction of pertinent evidence. At most, Beaudoin alleges that the timing of the destruction of the logbooks should raise suspicion, as it occurred in close proximity to the filing of the complaint (Mot. for Sanctions at 12). Cf. Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 531 (D. Md. 2010) (“the volume and timing” of spoliation may provide insight into the spoliator’s culpability). But Accelerated routinely destroyed logbooks six months after then receipt. (Aff. Schoenenbergerat 2, ECF No. 22-2). Beaudoin alleges that Moore did not submit his logbook from the Feb. 9th, 2007 accident until early March. (Reply, Mot. for Sanctions at 3). But Beaudoin did not provide the court with the part of Moore’s deposition in which he makes this statement, and Moore also testified under oath that he submits his logbooks to Accelerated on a weekly basis. (Moore Dep. at 55:15, ECF No. 22-1). If Accelerated received the logbook in question by February 15, 2007, the August 15, 2007 destruction of the logbook is consistent with Accelerated’s standard protocol for destruction of logbooks.

7
Witness Russel Bittner (“Bittner”) corroborated this during his deposition, but his recollection was hazy. Bittner testified that Beaudoin told him Moore was “looking right at me in the mirror … something like that.” (Dep. Bittner 21:10–12). Bittner corroborates the fact that Beaudoin believed Moore could see her but does not supply any additional information to support the veracity of this belief. Without direct evidence to demonstrate that Moore could see Beaudoin at the time of the accident or to supply an explanation for why he would intentionally hit her car, this alone is insufficient to create a genuine dispute as to a material fact.