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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

SAMUEL J. CORNETT v. C.W. OVER & SONS, INC.

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CIVIL NO. Y-98-1746

David E. Tibbetts, Esquire, Annapolis, Maryland, and Roger W. Malik, Esquire, counsel for Plaintiff. Joseph F. Snee, Jr., Bel Air, Maryland, and Carolyn W. Evans, Bel Air, Maryland, counsel for Defendant. YOUNG, Joseph H., Senior United States District Judge Date: January ___, 2000 MEMORANDUM OPINION I. On June 1, 1998, the Plaintiff, Samuel J. Cornett ["Cornett"] filed a complaint against the Defendant, C.W. Over & Sons, Inc. ["C.W. Over"], alleging violations of the Fair Labor Standards Act. Cornett contends that he was a "non-exempt"

employee and, therefore, is entitled to time-and-a-half overtime pay for any week when he worked more than 40 hours. On November 5, 1999, the Court held a telephone conference with counsel for both parties, at Cornett's request. During that

conference, the Court denied Cornett's Motion for Leave to Amend 1

Complaint.

When the trial began on November 8, 1999, Cornett The Court denied the motion At 4:54 p.m. that day, Cornett

again moved to amend his complaint. in open court without discussion.

filed a Motion for Leave to File Amended Complaint ["the Motion"] with the Clerk's office. The Court received a copy of the Motion

when the trial resumed the next day, and declared a mistrial. The parties requested a hearing on the Motion, which was held December 28, 1999. Cornett seeks to amend his complaint to request a higher damage award. He claims that his earlier estimate of damages was

too low because C.W. Over prevented him from obtaining certain time sheets during discovery. several grounds. C.W. Over opposes the Motion on

It claims that Cornett failed to request the

time sheets in a proper and timely manner during discovery and that Cornett had access to the time sheets and could have copied them at an earlier date. Moreover, C.W. Over argues that this

dispute is nothing more than a discovery dispute that should have been resolved prior to trial, but Cornett failed to raise the issue until three days before trial. Finally, C.W. Over alleges

that Cornett acted in bad faith by not accepting the Court's earlier denials of his Motion and possibly seeking to delay the trial. The resulting delay, argues C.W. Over, caused it "severe

prejudice and substantial hardship."

II.

Discussion 2

Under Federal Rule of Civil Procedure 15(a), the disposition of a motion to amend is within the sound discretion of the district court. 1987). See Deasy v. Hill, 833 F.2d 38, 40 (4th Cir.

Leave to amend should be "freely given," provided that

the movant has not exhibited undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by previouslyallowed amendments, and the non-movant will not be unduly prejudiced by the amendment. See Foman v. Davis, 371 U.S. 178, Delay alone is not a sufficient

182, 83 S. Ct. 227, 230 (1962).

reason to justify denial of leave to amend, see Deasy, 833 F.2d at 41, but undue delay is an appropriate ground for denial when accompanied by bad faith on the part of the movant, prejudice to the non-movant, or dilatory motive, see Nat'l Bank of Washington v. Pearson, 863 F.2d 322, 328 (4th Cir. 1988). In the present case, there is no question that Cornett's actions delayed the trial, caused the Court to declare a mistrial, and stalled the case for several months. Although this

delay, standing alone, would be insufficient to justify denying Cornett's Motion, the Court also finds that Cornett has abused the trial process. A plain examination of the record reveals that Cornett's decision to file a Motion to Amend at 4:54 p.m. on first day of trial was an abuse of the process. Cornett had raised the same

Motion on two prior occasions -- once during a November 5, 1999, telephone conference and again on November 8 in open court -- and 3

the Court denied it both times.

Clearly, no new evidence was

made available to Cornett between his in-court Motion made orally on the morning of November 8 and his written Motion submitted at 4:54 p.m. that same day. Nor was it necessary for Cornett to

file a new Motion and argue it for the record, as he contends. All that he needed to preserve the issue for appeal was to have the Court deny the Motion on the record, which it did. R. Civ. P. 46; Liberty Corp. v. NCNB Nat'l Bank of South Carolina, 984 F.2d 1383, 1389-90 (4th Cir. 1993). It follows that Cornett had no valid reason to file another Motion on the first day of trial. Whether the purpose was to See Fed.

delay the trial, harass the defendant, or simply obtain more time to prepare the case, there was no justification for filing a third Motion, the Court having rejected the same Motion twice within the previous four days. By doing so, Cornett abused the

trial process, stalled the present action, and prejudiced C.W. Over by the delay. These circumstances are sufficient to

convince the Court that justice does not require granting leave to amend in this case. See Fed. R. Civ. P. 15(a); Hare v. Family

Publications Serv., Inc., 342 F. Supp. 678 (D. Md. 1972).

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III.

Conclusion

Based on the foregoing analysis, the Court will deny Cornett's Motion for Leave to Amend Complaint. The Court also

denies C.W. Over's request for costs related to this Motion. ___________________________________ Joseph H. Young Senior United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

SAMUEL J. CORNETT v. C.W. OVER & SONS, INC.

* * * * * * *

CIVIL NO. Y-98-1746

ORDER In accordance with the attached Memorandum, it is this ___ day of January 2000, by the United States District Court for the District of Maryland, ORDERED: 1. That Plaintiff's Motion for Leave to Amend

Complaint BE, and the same IS, hereby DENIED; and 2. That copies of this Memorandum and Order be mailed

to counsel for the parties. ___________________________________ Senior United States District Judge

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