United States District Court, District of Columbia
Document No. 32
ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO
FILE A SECOND AMENDED COMPLAINT
RUDOLPH CONTRERAS United States District Judge
move to amend their complaint a second time to clarify the
factual circumstances surrounding their previous claims and
add a new claim for negligence against Individual Defendant
Diane Schulz. See Mot. Leave File Second Am. Compl.
(“Pls.' Mot. Amend.”). District
Defendants take no position on the motion. See
Pls.' Mot. Amend at 1. Individual Defendant Schulz
opposes the motion insofar as it seeks to add the new
negligence count, arguing that (1) Plaintiffs' counsel
brings this action in bad faith because the proposed
negligence count was added only after Plaintiffs' counsel
learned that Ms. Schulz's car and homeowner's
insurance policies do not cover intentional torts, and (2)
Plaintiffs' allegations of intentional torts and
negligence are contradictory. See Def. Schulz's
Opp'n Pls.' Mot. Leave File Second Am. Compl.
(“Def.'s Opp'n”) at 1-3, ECF No. 35. Ms.
Schulz also seems to suggest that (3) the new count does not
state a claim for negligence because it “references no
specific duty and simply references [Ms. Schulz]'s duty
to ‘act reasonably.'” Def.'s Opp'n
¶ 5. Because Ms. Schulz's first argument is
insufficient to justify denying leave to amend and her second
two arguments were largely rejected in the Court's
previous memorandum opinion, Plaintiff's motion to amend
will be granted.
Court rejects Ms. Schulz's argument that the claim was
added in bad faith. Under Rule 15(a)(2), leave to amend
should be freely given when justice so requires. “In
the absence of any apparent or declared 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, futility of amendment,
etc.-the leave sought should, as the rules require, be
‘freely given.'” Foman v. Davis, 371
U.S. 178, 182 (1962). Under some circumstances, motions to
amend that are intended to avoid summary judgment or
otherwise “muddy the waters” of a court's
resolution of the case may be denied as brought in bad faith.
See Hoffmann v. United States, 266 F.Supp.2d 27, 34
(D.D.C. 2003), aff'd, 96 F. App'x 717 (Fed.
Cir. 2004). However, parties may move to amend to
“clarify and amplify” the allegations in their
complaint in light of facts learned during discovery and
arguments made by the opposition. United States ex rel.
Westrick v. Second Chance Body Armor, Inc., 301 F.R.D.
5, 7 (D.D.C. 2013). Courts are more likely to hold that
motions to amend are brought in bad faith when the proposed
amendments are similar to already-rejected claims or
otherwise unlikely to succeed on their face. See
Hoffmann, 266 F.Supp.2d at 34. Preventing a party from
amending her complaint on the basis of bad faith generally
requires an affirmative showing by the nonmoving party.
Roller Bearing Co. of Am. v. Am. Software, Inc., 570
F.Supp.2d 376, 386 (D. Conn. 2008) (citing Monahan v. New
York City Dep't of Corr., 214 F.3d 275, 283-84 (2d
Cir.2000)). Such a showing often requires extrinsic evidence.
See Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir.
Schulz does not show that Plaintiffs move to amend their
complaint in bad faith. She has merely, in conclusory terms,
asserted that the Sherrods amended their complaint based on
the information they learned about Ms. Schulz's insurance
coverage. She cites to no authority supporting her assumption
that such a motivation constitutes “bad faith, ”
nor does Ms. Schulz argue that the amendment would make
discovery or litigation more complicated moving forward.
See generally Def.'s Opp'n. But even if
amending one's complaint based on the likelihood of
recovery could be considered questionable (as opposed to
strategic), Ms. Schulz has not factually supported her
argument with more than conclusory assertions, let alone
extrinsic evidence. See generally Def.'s
Opp'n. And, the proposed claim is not duplicative or
patently unlikely to succeed; as shown below, Plaintiffs
state a cognizable negligence claim. The Court thus rejects
Ms. Schulz's argument that the motion to amend the
complaint was brought in bad faith.
Schulz's second argument-that amending the complaint
would be futile because the negligence count contradicts the
intentional tort claim-fares no better than her first.
“A party may state as many separate claims or defenses
as it has, regardless of consistency.” Fed.R.Civ.P.
8(d)(3). As noted in the Court's previous memorandum
opinion, plaintiffs are generally entitled to allege both
intentional torts and negligence based on the same factual
transaction. Sherrod v. McHugh, No. 16-cv-0816, 2017
WL 627377, at *7 (D.D.C. Feb. 15, 2017). A “plaintiff
may continue to allege . . . inconsistent theories so long as
she does not recover damages on both claims.”
Dingle v. District of Columbia, 571 F.Supp.2d 87, 99
(D.D.C. 2008); see also Harvey v. Kasco, 109
F.Supp.3d 173, 179 (D.D.C. 2015). To add a negligence count
to a complaint alleging intentional torts, the negligence
cause of action must be “distinctly pled” and
“‘based upon at least one factual scenario that
presents an aspect of negligence' distinct from Case
1:16-cv-00816-RC Document 40 Filed 04/07/17 Page 4 of 5 the
[intentional tort] itself.” Id. at *7 (quoting
Dormu v. District of Columbia, 795 F.Supp.2d 7, 30
(D.D.C. 2011)). Plaintiffs' amended complaint distinctly
pleads the negligence count and the intentional torts counts.
See Proposed Am. Compl. ¶¶ 84-89; 118-23;
171-75. The counts are also based upon distinct factual
scenarios: the allegations of intentional torts allege that
Ms. Schulz intentionally filed false police reports while the
negligence count alleges that she owed a duty to the Sherrods
to prevent them from being unlawfully arrested and to
withdraw her false complaint. See Proposed Am. Comp.
¶¶ 171-75. Because Plaintiffs are entitled to
“state as many separate claims or defenses as it has,
regardless of consistency, ” their proposed amendment
would not be futile.
Schulz's final argument-that the negligence claim does
not specifically describe the duty Ms. Schulz owed to
Plaintiffs-also comes up short. “A uniform standard of
care applies in actions for negligence [in the District of
Columbia]: reasonable care under the circumstances.”
Sherrod, 2017 WL 627377 at *6 (quoting
O'Neil v. Bergan, 452 A.2d 337, 341 (D.C.
1982)). A plaintiff need not further describe the applicable
standard of care. See id.; see also Fed. R.
Civ. P. 8(a) (“[A] claim for relief must contain . . .
a short and plain statement of the claim showing that the
pleader is entitled to relief.”). The Court squarely
addressed this issue in its previous memorandum opinion.
See Sherrod, 2017 WL 627377 at *6. In fact, there
the Court found Plaintiffs' claims plausible even though
they did not explicitly state that the defendants owed
District Defendants a duty of reasonable care under the
circumstances. See id. There is no basis for Ms.
Schulz's cursory argument that Plaintiffs are required to
plead a more specific duty than the default “reasonable
care under the circumstances.” Accordingly, is hereby:
that Plaintiffs' Motion for Leave to File a Second
Amended Complaint (ECF No. 32) is GRANTED. It is
ORDERED that Plaintiff's Second Amended Complaint (ECF
No. 32-4) is DEEMED FILED.
 The Court provided a detailed factual
background in its previous memorandum opinion. See
Sherrod v. McHugh, No. 16-cv-0816, 2017 WL 627377, at
*1-*4 (D.D.C. Feb. 15, 2017). The Court assumes ...