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Barker v. Walmart Stores East, L.P.

United States District Court, E.D. Kentucky, Southern Division, Pikeville

May 6, 2019

HEATHER BARKER, Plaintiff,
v.
WAL-MART STORES EAST, LP Defendant.

          ORDER AND OPINION

          KAREN K. CALDWELL, CHIEF JUDGE

         This matter is before the Court on Heather Barker's Motion to File an Amended Complaint under Federal Rule of Civil Procedure 15. (DE 33). For the reasons stated below, that Motion is DENIED.

         I. BACKGROUND

         The dispute in this case stems from a disagreement between two Wal-Mart employees over ownership of a cellphone. (DE 35 at 1.) During a shift, Margaret Penix Blair left her phone in a family bathroom located inside a Wal-Mart in Paintsville, Kentucky. (DE 35 at 1.) Department Manager, Julie Robinson, found a phone in the same bathroom shortly afterward. (DE 35 at 3.) She asked fellow employees if they had left a phone in the bathroom, and Heather Barker claimed the phone as her own. (DE 35 at 3.)

         Blair later realized that she lost her phone. (DE 35 at 3.) She was informed by Wal-Mart that no one had turned in a lost phone, and her phone service provider told her that the phone was disabled. (DE 35 at 3-4.) In speaking with a colleague, she was informed that Robinson had found a phone earlier that day. (DE 35 at 4.) Blair then asked Robinson- providing her with a description of the phone case and location-if she found the phone. (DE 35 at 4.) Robinson stated that she found a phone but explained that the phone was claimed by Barker. (DE 35 at 4.)

         Blair then reported the incident to the Assistant Store Manager, Becky Combs, and Co-Manager, Brian Kennard. (DE 35 at 4.) Kennard and Combs then asked Barker if she had any information regarding the missing phone. (DE 35 at 4.) Barker asserted that the phone was hers and pulled a phone out of her pocket to attempt to confirm. (DE 35 at 4.) Kennard explained that he did not know what the phone looked like and therefore could not identify it. (DE 35-4 and 35-5). Following this conversation, Kennard informed Blair that Barker claimed the phone was hers and that he could do nothing further. (DE 35 at 4-5 and DE 35-5.)

         At her deposition, Blair testified that she wanted to pursue the matter further. (DE 35-2 at 21.) She stated that she asked Wal-Mart to pull the video surveillance footage. (DE 35-2 at 13-14.) Wal-Mart management provided her with the footage but told her that they were not able to take any action. (DE 35-2 at 15.) Blair was informed that if she wanted to pursue the matter further, she would need to file a police report. (DE 35-2 at 21.)

         Blair testified that she asked Wal-Mart how to go about filing a report. (DE 35-2 at 21.) Wal-Mart Loss Prevention employee, Juanita Auxier, volunteered to set up a meeting with the Paintsville Police Department. (DE 35-2 at 21.) Blair and Officer Taylor met in the presence of Auxier, and following their meeting, Taylor determined that there was sufficient probable cause to file criminal theft charges against Barker. (DE 35-6 at 21-22.) He took this information to the grand jury, who indicted Barker. (DE 35-6 at 22.) Those charges were later dropped. (DE 35 at 6.)

         Barker brought suit against Wal-Mart alleging negligence, intentional infliction of emotional distress, and wrongful termination. (DE 1-2.) Barker now moves to amend her Complaint to state a claim under Restatement Second of Torts § 324A. (DE 33.) Barker asserts that Wal-Mart voluntarily assumed a duty to investigate an alleged crime and then failed to exercise ordinary care in carrying out that duty, thereby causing injury to Barker. (DE 33 at 1.) The Court, having reviewed the Motion, will not permit her to amend her Complaint at this late juncture.

         II. ANALYSIS

         In determining whether to grant a motion to amend, the Court should consider (1) undue delay in filing the motion; (2) lack of notice to adverse parties; (3) whether the movant is acting in bad faith, or with a dilatory motive; (4) failure to cure deficiencies by previous amendments; (5) the possibility of undue prejudice to adverse parties; and (6) whether the amendment is futile. Foman v. Davis, 371 U.S. 178, 182 (1962); Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 591 (6th Cir. 1990); see also Birchwood Conservancy v. Webb, 302 F.R.D. 422, 424 (E.D. Ky. 2014). The Court finds that there was undue delay in filing this motion, granting the motion would prejudice the defendants, and the amendment is futile. Accordingly, Barker's Motion to Amend is denied.

         A. Barker's Motion is untimely, and she has not shown good cause.

         Barker's Motion is undeniably untimely. The Court's Scheduling Order clearly states “[t]he parties shall have TO AND INCLUDING August 24, 2018 by which to file any motions to join additional parties or amend pleadings.” (DE 17 at 1.) The Court's Scheduling Order also states that the parties shall complete all discovery by March 20, 2019 and that all dispositive motions shall be filed by April 1, 2019. (DE 17 at 2.) At the parties' request, on February 12, 2019, the Court extended those deadlines until April 26, 2019 and May 17, 2019 respectively. (DE 31.)

         Barker filed this Motion to Amend on March 1, 2019, nearly six months after the Court's deadline to amend pleadings. (DE 33). Wal-Mart diligently responded to Barker's Motion, filing its response on March 8, 2019. (DE 35). Barker ...


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