UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2249
BOBBYDYNE MCMILLAN,
Plaintiff – Appellant,
v.
CUMBERLAND COUNTY BOARD OF EDUCATION; JOSEPH M.
LOCKLEAR,
Defendants – Appellees,
and
CUMBERLAND COUNTY SCHOOLS,
Defendant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, Chief District Judge. (5:14-cv-00344-D)
Argued: January 23, 2018 Decided: April 3, 2018
Amended: April 4, 2018
Before GREGORY, Chief Judge, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the majority opinion, in which
Chief Judge Gregory and Judge Floyd joined.
ARGUED: Daniel Wilbert Koenig, HOFFMAN KOENIG HERING PLLC, Greensboro,
North Carolina, for Appellant. James Scott Lewis, BUTLER SNOW LLP, Wilmington,
North Carolina, for Appellees. ON BRIEF: Pamela R. Lawrence, BUTLER SNOW
LLP, Wilmington, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
Appellant Bobbydyne McMillan was employed by the Cumberland County Board
of Education (“CCBE”) and resigned following an investigation into her conduct during
the course of her employment. She appeals the district court’s grant of summary
judgment in favor of the Defendants, CCBE, and Joseph M. Locklear, 1 Associate
Superintendent of Human Resources, on her 42 U.S.C. § 1983 Fourteenth Amendment
due process, negligence, negligent and fraudulent misrepresentation, and tortious
interference with contract claims arising from her resignation as a school employee. She
also appeals the district court’s denial of her motion for leave to file a third amended
complaint. For the reasons that follow, we affirm the district court’s judgment.
I.
We begin by outlining the events preceding McMillan’s resignation and then
provide the relevant procedural history. We review these facts in the light most favorable
to McMillan as the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587–88 (1986).
1
Locklear died during the course of this action. Pursuant to Federal Rule of Civil
Procedure 25(d), the district court automatically substituted his successor, Reuben A.
Reyes, as the defendant for the claims against him in his official capacity. For the claims
against Locklear in his individual capacity, references to “Locklear” herein include the
representative of Locklear’s estate pursuant to Federal Rule of Civil Procedure 25(a).
3
A.
CCBE employed McMillan from August 1994 to May 2012. At the time of the
events in question, McMillan had achieved “career status” which is commonly referred to
as tenure.
The incident that ultimately led to McMillan’s resignation occurred in the spring
of 2012, when McMillan was serving as in-school suspension coordinator at Reid-Ross
Classical Middle-High School. In April 2012, she invited Student A, an unnamed student
at Reid-Ross, to stay with her so that the student could avoid a “[b]ad situation at home.”
J.A. 157. On April 25, 2012, Student B, a different unnamed student, informed his
teacher, Samantha Brown, that Student A had hidden a bottle of drugs in the school
bathroom. Brown relayed this information to McMillan and the two teachers approached
Student B. Student B volunteered to go into the bathroom, retrieve the bottle, and bring it
to the teachers. McMillan and Brown agreed to this plan. Student B brought the bottle to
McMillan, she and Student B stepped out of the view of the security cameras, and
Student B handed McMillan the bottle. McMillan realized that the bottle was expired
nausea medication that belonged to her recently deceased child. McMillan maintains
that, immediately after the event, she went to speak to Assistant Principal Laquisha Leath
about the incident. The parties dispute whether she actually spoke to Leath.
The next morning, Student B’s mother came to school and complained about the
incident to Principal Thomas Hatch, prompting Hatch to investigate. That same day,
Hatch spoke with Student B and McMillan about the incident. McMillan stated in her
deposition that Hatch told her “that he had a parent who was upset at the fact that
4
[McMillan] had asked her son to retrieve medication, putting [her son] in jeopardy and
that [Hatch] needed to know exactly what was going on and that . . . [McMillan] was
jeopardizing [her] job and this incident could cost [her her] job.” J.A. 179–80. Hatch
then told McMillan to prepare a statement about what happened. McMillan typed a
statement and sent it to Hatch. Hatch also received statements from Leath, Student A,
Student B, and Brown.
Hatch provided Locklear with the information that he collected from his
investigation which Locklear then gave to Superintendent Dr. Frank Till. After
reviewing it, Till decided to suspend McMillan with pay and scheduled an administrative
conference with McMillan and Locklear to discuss the matter. On May 21, 2012, Till
sent McMillan a letter notifying her of the suspension and scheduling the administrative
conference for May 22, 2012. The letter stated that there was “certain information which
may affect [McMillan’s] employment as a teacher.” J.A. 261.
On May 22, 2012, McMillan, Till, and Locklear attended the administrative
conference which lasted for about an hour. McMillan understood that the purpose of the
conference was to “discuss whether or not the grounds existed for [her] termination” and
that there was a “possibility [that her] employment could be terminated.” J.A. 198.
During the meeting, Till asked McMillan to give her account of what occurred. Till then
summarized what he understood to be the sequence of events and asked McMillan if he
was correct. McMillan explained why she believed that Till’s understanding was
incorrect. McMillan understood that, after the meeting, Till would be deciding the
veracity of her account and whether or not grounds existed for her dismissal.
5
On May 25, 2012, Locklear called McMillan into a meeting in which he informed
her that Till had decided to dismiss her. He then told her that instead of being terminated
she could complete the pre-filled “Tender of Resignation” form. McMillan agreed and
resigned.
B.
On May 27, 2014, McMillan filed a complaint bringing a § 1983 claim alleging a
due process violation, as well as state law, negligence, negligent and fraudulent
misrepresentation claims against Cumberland County Schools (“CCS”) in the
Cumberland County Superior Court. CCS removed the action to the United States
District Court for the Eastern District of North Carolina. On June 20, 2014, CCS moved
to dismiss, claiming that CCS is not subject to suit, as it is not an entity authorized to
prosecute or defend lawsuits under North Carolina law. On July 11, 2014, McMillan
amended her complaint removing CCS, adding the CCBE and Locklear, and adding a
new claim for tortious interference. The district court entered a scheduling order on
September 26, 2014, setting the deadline for amending the pleadings for January 16,
2014. 2 The district court granted extensions for certain deadlines including amending the
pleadings. After the Defendants filed a Rule 12(c) motion, McMillan moved for leave to
file a second amended complaint, which the district court granted. McMillan then
2
This was a typographical error. The district court later found that January 16,
2015 was the only reasonable reading of the deadline.
6
amended her complaint. The parties conducted discovery, which ended on December 1,
2015.
On December 15, 2015, after the deadline for amending the pleadings had passed,
McMillan moved for leave to file a third amended complaint seeking to add a breach of
contract claim. In support of her motion, McMillan stated that during the course of
depositions, she was made aware of the fact that N.C. Gen. Stat. § 115C-325(h)(2), which
outlines the process required to fire a public school teacher, 3 was incorporated by
reference into her employment contract. 4 On December 31, 2015, the Defendants moved
for summary judgment.
3
N.C. Gen. Stat. Ann. § 115C-325 provides, in relevant part, the following
procedural safeguards for employees facing dismissal:
Before recommending to a board the dismissal or demotion of the career
employee pursuant to G.S. § 115C-325(e)(1), the superintendent shall give
written notice to the career employee by certified mail or personal delivery
of his or her intention to make such recommendation and shall set forth as
part of his or her recommendation the grounds upon which he or she
believes such dismissal or demotion is justified.
Id. § (e)(2)(b).
The superintendent also shall meet with the career employee and provide
written notice of the charges against the career employee, an explanation of
the basis for the charges, and an opportunity to respond if the career
employee has not done so under G.S. 115C-325(f)(1).
Id. § (h)(2).
4
The parties agree that the N.C. Gen. Stat. Ann. § 115C-325 was incorporated into
McMillan’s employment contract.
7
On September 29, 2016, the district court denied McMillan’s motion to file a third
amended complaint and granted the Defendants’ summary judgment motion. The district
court found that the pre-termination procedure employed by the Defendants was
sufficient process under the Fourteenth Amendment, that Locklear was entitled to public
official immunity on the negligence claims, that the negligent misrepresentation and
fraudulent misrepresentation claims fail in part because “no reasonable jury could find
reasonable reliance on Locklear’s alleged misstatement,” J.A. 1058, and that her claim
for tortious interference fails because “no rational jury could find that Locklear [as a
‘non-outsider’] acted with malice or for an illegitimate reason.” J.A. 1059-60. The
district court denied McMillan’s third motion to amend because it found that she had not
shown good cause as required by Federal Rule of Civil Procedure 16(b)(4).
II.
On appeal, McMillan argues that the district court erred in granting the Defendants
summary judgment on each of her claims. First, she argues that the district court erred in
granting summary judgment on her due process claim because she was not provided
sufficient notice of the charges against her. Second, she argues that the district court
erred by granting summary judgment to the Defendants on her negligent and fraudulent
misrepresentation claims because the fact that the Defendants did not inform her of her
rights as a career-status employee amounted to a negligent or fraudulent
misrepresentation on which she reasonably relied. Third, she further argues that she
“[f]orecasted [s]ufficient [e]vidence” that Locklear was an outsider to her employment
8
contract and was therefore not entitled to the qualified privilege on her tortious
interference claim. Appellant’s Br. at 40. Finally, she argues that Locklear was not
entitled to public official immunity on her negligence claim against him because he acted
with “legal malice and/or for an illegitimate reason.” Appellant’s Br. at 41. We review
de novo the district court’s grant of summary judgment. Higgins v. E.I. DuPont de
Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988). For the reasons that follow, we
must reject each of McMillan’s arguments.
A.
McMillan argues that the district court erred in granting summary judgment to the
Defendants on her due process claim because she argues that, prior to her resignation, she
was not told what she had done wrong, what evidence the CCBE had against her, her
rights as a career-status teacher, and that there was a “possibility she might lose her job.”
Appellant’s Br. at 18. Because McMillan had notice and an opportunity to be heard, we
disagree. See Mathews v. Eldridge, 424 U.S. 319, 348 (1976). 5
In order to show a due process violation “a plaintiff must first show that [s]he
ha[d] a constitutionally protected ‘liberty’ or ‘property’ interest, and that [s]he ha[d] been
5
An employee that resigns voluntarily relinquishes his or her property interest in
his or her employment even if the employer prompted the resignation. Stone v. Univ. of
Md. Med. Sys. Corp., 855 F.2d 167, 173 (1988). The district court determined that it
need not address whether McMillan voluntarily resigned because it determined that
viewing the evidence in the light most favorable to her, no reasonable jury could find that
the Defendants violated her due process rights. We do the same.
9
‘deprived’ of that protected interest by some form of ‘state action.’” Stone, 855 F.2d at
172 (internal citations omitted). As a tenured state employee, McMillan has a
constitutionally protected liberty interest in her employment and is entitled to the
minimum procedural standards required by due process in the event of her termination.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–39 (1985).
Accordingly, McMillan “is entitled to [1] oral or written notice of the charges
against [her], [2] an explanation of the employer’s evidence, and [3] an opportunity to
present [her] side of the story.” Riccio v. Cty. of Fairfax, Va., 907 F.2d 1459, 1463 (4th
Cir. 1990) (quoting Loudermill, 470 U.S. at 546). “To require more than this prior to
termination would intrude to an unwarranted extent on the government’s interest in
quickly removing an unsatisfactory employee.” Id. (quoting Loudermill, 470 U.S. at 545-
46 (1985)). “Due process does not mandate that all evidence on a charge or even the
documentary evidence be provided, only that such descriptive explanation be afforded as
to permit [the employee] to identify the conduct giving rise to the dismissal and thereby
to enable him to make a response.” Linton v. Frederick Cty. Bd. of Cty. Com’rs, 964 F.2d
1436, 1440 (4th Cir. 1992).
With respect to the first and second prongs of the Riccio test, the Defendants
provided McMillan with sufficient notice of the charges brought against her. McMillan
stated in her deposition that Hatch told her “that he had a parent who was upset at the fact
that [McMillan] had asked her son to retrieve medication, putting [her son] in jeopardy
and that [Hatch] needed to know exactly what was going on and that . . . [McMillan] was
jeopardizing [her] job and this incident could cost [her her] job.” J.A. 179–80. From this
10
statement, it is clear that she was aware of what actions had given rise to the concern,
who raised the concerns, and the possible consequences. Therefore, the first two prongs
of the Riccio test have been satisfied.
McMillan asserts that she was entitled to “specification of the charges against
her.” Appellant’s Br. at 24. Not so. Federal due process only requires that the
explanation of the charges be descriptive enough to “permit [the employee] to identify
the conduct giving rise to the dismissal and thereby to enable him to make a response.”
Linton, 964 F.2d at 1440. Moreover, although the North Carolina due process
requirements that McMillan urges us to consider may require more specificity, 6 they are
immaterial to the federal due process question presented here. “If state law grants more
procedural rights than the Constitution would otherwise require, a state’s failure to abide
by that law is not a federal due process issue.” Riccio, 907 F.2d at 1469; see also Gray v.
Laws, 51 F.3d 426, 438 (4th Cir. 1995) (“The Constitution’s due process requirements
are defined by the Constitution and do not vary from state to state on the happenstance of
a particular state’s procedural rules.”). To be sure, we were presented with a similar
question in Riccio, which required us to opine on the level of specificity required for
notice in such employment situations. There, the employee was not given written notice
of all of the specific charges against him, nevertheless we found that the employee, over
6
McMillan points out that the state due process laws were incorporated into her
employment contract to no avail on appeal. Breach of contract is not an issue before us
and she has not shown that the district court abused its discretion in denying her leave to
amend to add this claim. See infra section III.
11
the course of meetings with his employer in which his employer explained the
allegations, received effective notice of all of the charges. Riccio 907 F.2d at 1465.
Similarly, although McMillan’s letter did not detail the allegations against her, it is clear
from her deposition that, over the course of her meetings with CCBE officials, she
learned exactly what prompted the investigation and of what she was being accused.
Furthermore, McMillan had two opportunities to tell her side of the story as
required by the final prong of the Riccio test. First, Principal Hatch instructed her to
write out a statement about what happened. Second, Till and Locklear allowed her to
share her account at the administrative conference, and invited her to correct what she
believed to be Till’s incorrect summation of what happened.
At bottom, the Defendants afforded McMillan all of the process that she was due
and, as such, the district court did not err in granting the Defendants summary judgment.
B.
McMillan further argues that the district court erred by holding that Locklear was
entitled to public official immunity on her claim that he negligently induced her to resign.
We disagree.
In North Carolina, “[i]t is settled law . . . that a public official, engaged in the
performance of governmental duties involving the exercise of judgment and discretion,
may not be held personally liable for mere negligence in respect thereto . . . unless it be
alleged and proved that his act, or failure to act, was corrupt or malicious, or that he acted
outside of and beyond the scope of his duties.” See Smith v. Hefner, 68 S.E.2d 783, 787
12
(N.C. 1952). “A defendant acts with malice when he wantonly does that which a man of
reasonable intelligence would know to be contrary to his duty and which he intends to be
prejudicial or injurious to another.” Grad v. Kaasa, 321 S.E.2d 888, 890 (N.C. 1984).
“[A] conclusory allegation that a public official acted willfully and wantonly should not
be sufficient . . . [t]he facts alleged in the complaint must support such a conclusion.”
Meyer v. Walls, 489 S.E.2d 880, 890 (N.C. 1997).
“It is well settled that absent evidence to the contrary, it will always be presumed
that public officials will discharge their duties in good faith and exercise their powers in
accord with the spirit and purpose of the law.” Leete v. Cty. of Warren, 462 S.E.2d 476,
478 (N.C. 1995) (quotation omitted). “Every reasonable intendment will be made in
support of [this] presumption.” Styers v. Phillips, 178 S.E.2d 583, 591 (N.C. 1971)
(quotation omitted). One may only overcome the presumption of good faith by providing
“competent and substantial evidence” to the contrary. Leete, 462 S.E.2d at 478.
The parties do not dispute that Locklear was a public official; they only dispute
whether Locklear’s conduct was malicious, corrupt, or beyond the scope of his duties.
McMillan’s conclusory allegations against Locklear in her complaint include the
following:
Defendant Locklear’s false and deceptive statements to Plaintiff were
corrupt, malicious, made in bad faith, and/or made outside the scope of
Defendant Locklear’s authority, in that Defendant Locklear did not inform
Plaintiff of the charges against her; did not make Plaintiff aware of the
nature of the May 25, 2012 meeting; provided Plaintiff with less than two
(2) hours notice of the May 25, 2012 meeting; presented Plaintiff with a
pre-filled out resignation form.
13
J.A. 66–67. A party opposing summary judgment “may not rest upon the mere
allegation or denials of his pleading, but must set forth specific facts showing that there is
a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
McMillan’s allegations are conclusory. They set forth no underlying facts and describe
no actions taken by Locklear that were malicious, corrupt, or outside of the scope of his
duties as opposed to discretionary decisions entitled to the presumption of good faith.
Therefore, the district court did not err in finding that Locklear was entitled to public
official immunity.
C.
McMillan argues that the district court erred by granting summary judgment to the
Defendants on her fraudulent and negligent misrepresentation claims. Again, we
disagree. We first recite McMillan’s allegations and the relevant North Carolina law
before turning to the legal analysis.
1.
McMillan brings a fraud claim against Locklear and a negligent misrepresentation
claim against both Defendants for some of the statements, representations, and omissions
made during the pre-termination process.
With respect to her claim for fraudulent misrepresentations, McMillan alleged that
Locklear made the following statements during the meeting in which she tendered her
resignation: (1) Till had made the decision to fire her which was final, (2) that she should
14
resign if she did not want to be terminated, (3) and that if she resigned on the same day,
she may be able to continue to teach at another school but if she did not, she would no
longer be able to teach at all. She further alleges that Locklear concealed “material
facts,” including her right to due process, the extent to which the decision to dismiss her
was final, and the consequences of her resignation. J.A. 65.
As for her negligent misrepresentation claims, McMillan alleges that both
Defendants breached their duty to her during the May 25, 2012, meeting by providing her
with false and deceptive statements, failing to provide her with the opportunity to leave
the meeting and consult with counsel or an advisor, and failing to inform her of her due
process rights.
2.
Under North Carolina law, in order to state a fraud claim one must show that there
was a “(1) [f]alse representation or concealment of a material fact, (2) reasonably
calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5)
resulting in damage to the injured party,” where “any reliance on the allegedly false
representations [is] reasonable.” Forbis v. Neal, 649 S.E.2d 382, 387 (N.C. 2007)
(quoting Ragsdale v. Kennedy, 209 S.E.2d 494, 500 (N.C. 1974)) (emphasis added).
Similarly, the “[t]he tort of negligent misrepresentation occurs when a party justifiably
relies to his detriment on information prepared without reasonable care by one who owed
the relying party a duty of care.” Raritan River Steel Co. v. Cherry, Bekaert & Holland,
367 S.E.2d 609, 612 (N.C. 1988) (emphasis added).
15
Because, under North Carolina law the “question of justifiable reliance is
analogous to that of reasonable reliance in fraud actions,” Marcus Bros. Textiles, Inc., v.
Price Waterhouse, LLP, 513 S.E.2d 320, 327 (N.C. 1999) (quoting Stanford v. Owens,
265 S.E. 2d 617, 622 (1980)) we need not engage in two separate reliance inquiries, see,
e.g., Forbis, 649 S.E.2d at 387–88 (engaging in a discussion on the reasonableness of
reliance in a similar manner to how North Carolina courts consider justifiable reliance).
We therefore discuss whether McMillan justifiably relied on the alleged
misrepresentations.
“A party cannot establish justified reliance on an alleged misrepresentation if the
party fails to make reasonable inquiry regarding the alleged statement.” Dallaire v. Bank
of Am., N.A., 760 S.E.2d 263, 267 (N.C. 2014). “Whether a party’s reliance is justified is
generally a question for the jury, except in instances in which the facts are so clear as to
permit only one conclusion.” Id. (internal quotations omitted).
3.
The Defendants argue that the statements in question were, in fact, not false.
However, we need not decide that issue because no reasonable jury would find that
McMillan justifiably relied on what she alleges the fraudulent or negligent
misrepresentations to be. There is no dispute that McMillan failed to inquire about the
procedural protections to which she was entitled even though she was put on notice that
her actions may lead to her termination a month prior to the May 25, 2012 meeting at
which the allegedly false statements were made. McMillan acknowledged in her
16
deposition that she knew the purpose of the administrative conference was to discuss
whether she would be dismissed. Yet, she did not call the North Carolina Association of
Educators, contact an attorney, or refer to her employee handbook--all of which appear to
be reasonable inquiries--before or immediately after the May 22 administrative
conference. Furthermore, N.C. Gen. Stat. § 115C-325, which provides procedural
protections for state employees, was incorporated by reference into McMillan’s contract.
She could have referenced the contract for more information. This failure prevents her
reliance on the statements at issue from being reasonable. Accordingly, the district court
did not err in granting summary judgment in favor of the Defendants on these claims.
D.
McMillan argues that the district court erred in granting Locklear summary
judgment on her tortious interference claim. She argues that because Locklear acted with
wrongful or improper purpose he was not entitled to the presumption that his actions
were justified as a non-outsider. See Embree Constr. Grp. Inc. v. Rafcor, Inc., 411
S.E.2d 916, 924–926 (N.C. 1992). McMillan, however, has not presented evidence from
which a reasonable jury could find that Locklear acted with malice or for an illegitimate
purpose.
In North Carolina, the
tort of interference with contract has five elements: (1) a valid contract
between the plaintiff and a third person which confers upon the plaintiff a
contractual right against a third person; (2) the defendant knows of the
contract; (3) the defendant intentionally induces the third person not to
17
perform the contract; (4) and in doing so acts without justification; (5)
resulting in actual damage to plaintiff.
United Labs., Inc. v. Kuykendall, 370 S.E.2d 375, 387 (N.C. 1988). To that end, acting
without justification is a key element of the tort of tortious interference. If a party “ha[s]
a legitimate business interest . . . in the subject matter” of the contract, they are
considered a “non-outsider” to the contract. Smith v. Ford Motor Co., 221 S.E.2d 282,
292 (N.C. 1976). Non-outsiders, such as corporate officers, are entitled to a qualified
privilege and their actions are presumed justified. See Embree, 411 S.E.2d at 924–926
(N.C. 1992); Lenzer v. Flaherty, 418 S.E.2d 276, 286 (N.C. App. 1992) (“It is true that
so-called ‘non-outsiders’ often enjoy qualified immunity from liability for inducing their
corporation or other entity to breach its contract with an employee.”). However, a
plaintiff can overcome an inference of justification by showing that the defendant acted
with malice or for a reason “not reasonably related to the protection of a legitimate
business interest.” See Sellers v. Morton, 661 S.E.2d 915, 921 (N.C. App. 2008)
(quotation omitted). In order to successfully do so “the complaint must admit of no
motive for interference other than malice.” See Pinewood Homes, Inc. v. Harris, 646
S.E.2d 826, 832–833 (N.C. App. 2007).
As the Associate Superintendent for Human Resources, Locklear had a legitimate
business interest in McMillan’s employment contract and as such is entitled to a
presumption that his actions were justified. McMillan has failed to rebut this
presumption because the evidence supports inferences of a legitimate motive for
Locklear’s actions outside of malice. See id. (“[T]he complaint must admit of no motive
18
for interference other than malice.”). For example, offering the option to resign before
termination gave McMillan the option to avoid having the State Department of Public
Instruction notified of her termination. Locklear may have been acting to circumvent a
costly and time-consuming appeal process which appears to be in the interest of the
school system instead of an improper motive as McMillan alleges. McMillan has not
presented evidence of an improper motive. Therefore, because no reasonable jury could
conclude that Locklear acted with malice or for a purpose not reasonably related to a
legitimate school interest, the district court did not err in granting the Defendants
summary judgment on her tortious interference claim.
III.
McMillan argues the district court abused its discretion in denying her leave to file
a third amended complaint adding a breach of contract claim because she alleges that the
Defendants would not have been prejudiced. Below, McMillan did not initially argue to
amend her complaint on the good cause standard set forth by Rule 16(b)(4). She instead
argued under Rule 15(a)(2) for leave to amend which does not require a showing of good
cause. On appeal McMillan maintains that she nevertheless proved that good cause
existed in her memorandum in support of leave to amend pursuant to Rule 15(a)(2). We
are unconvinced.
We review the denial of leave to amend for abuse of discretion. Nourison Rug
Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008). Once a district court has entered a
scheduling order it may be modified only for good cause. Fed. R. Civ. P. 16(b)(4);
19
Parvizian, 535 F.3d at 298 (“Therefore, after the deadlines provided by a scheduling
order have passed, the good cause standard must be satisfied to justify leave to amend the
pleadings.”). “Good cause requires the party seeking relief [to] show that the deadlines
cannot reasonably be met despite the party’s diligence, and whatever other factors are
also considered, the 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.” Cook v. Howard, 484 F. App’x 805, 815 (4th Cir. 2012)
(unpublished opinion) (citations omitted).
McMillan did not show good cause to amend her complaint. Ordinary diligence
would have revealed the fact that she could have asserted a breach of contract claim
because the basis on which she would assert a breach of contract claim stems from the
same allegations on which she asserted her other claims. Breach of contract is the third
factor of a tortious interference claim, which she included in her first amended complaint.
Furthermore, McMillan’s argument that the Defendants would not be prejudiced is beside
the point. She must show good cause. Thus, the district court did not abuse its discretion
in denying her leave to amend her complaint.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
20