                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-1024


MISTY PETROSKY ELROD; JANE DOE #1, an infant then the age
of eleven years, by Shannon Middleton, her mother and next
friend; JANE DOE #2, an infant then the age of eleven
years, by Naissa Araujo, her mother and next friend,

                Plaintiffs - Appellants,

          v.

BUSCH ENTERTAINMENT CORPORATION,    d/b/a    Water   County   USA;
SANDEEP DEEPAK AGARWAL,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.     Rebecca Beach Smith,
Chief District Judge. (4:09-cv-00164-RBS-FBS)


Submitted:   June 19, 2012                   Decided:   June 27, 2012


Before WILKINSON and    THACKER,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Kevin P. Shea, Christina E. James, KEVIN P. SHEA & ASSOCIATES,
Hampton, Virginia, for Appellants. David C. Bowen, Aminah M.
Collick, WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Appellants Misty Petrosky Elrod, Jane Doe #1, and Jane

Doe #2 appeal the district court’s order sustaining objections

to the magistrate judge’s report and denying Appellants leave to

amend their complaint to include a claim of negligent retention.

The district court denied the amendment as futile, finding that

a claim of negligent retention does not support recovery for

emotional    harm     absent     a   showing   of     contemporaneous     physical

injury.       On    appeal,      Appellants     argue     that    their   proposed

amendment was not futile, as the tort of negligent retention

does not require a showing of physical injury.                   We affirm.

                A trial court is permitted to deny leave to amend a

complaint if the proposed amendment would be futile.                      Laber v.

Harvey,   438      F.3d   404,   426    (4th   Cir.     2006)    (en   banc).        An

amendment would be futile if the complaint, as amended, would

not withstand a motion to dismiss.              Katyle v. Penn Nat’l Gaming,

Inc., 637 F.3d 462, 471 (4th Cir. 2011), cert. denied, 132 S.

Ct. 115 (2011).       We review a district court’s denial of leave to

amend a complaint for abuse of discretion.                  Laber, 438 F.3d at

428;   see    L.J.    v.    Wilbon,     633    F.3d     297,     304   (4th     Cir.)

(discussing standard of review), cert. denied, 132 S. Ct. 757

(2011).

             Virginia      law   case   law    generally    recognizes        that    a

plaintiff may not recover for emotional injury resulting from

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the    defendant’s      negligence   without    proof    of    contemporaneous

physical injury.         See Myseros v. Sissler, 387 S.E.2d 463, 466

(Va. 1990); Hughes v. Moore, 197 S.E.2d 214, 219 (Va. 1973);

Bowles v. May, 166 S.E. 550, 555 (Va. 1932).                     The Virginia

Supreme Court has not specified whether this rule applies to

claims of negligent retention, and lower courts have reached

differing results on this issue.               Compare, e.g., Thompson v.

Town of Front Royal, 117 F. Supp. 2d 522, 531-32 (W.D. Va. 2000)

(finding claim not asserting physical injury sufficient), with

Investors Title Ins. Co. v. Lawson, 68 Va. Cir. 337, at *1-2

(2005) (finding Virginia Supreme Court would more likely hold

that physical harm is required for negligent retention).                     The

Virginia appellate courts have not clearly limited the Hughes

physical injury requirement to any particular class of negligent

conduct,    instead     construing   the   rule   in    broad    terms.       See

Hughes, 197 S.E.2d at 219; Bowles, 166 S.E. at 555.                    Thus, in

the absence of clear case law providing for extended recovery in

negligent retention claims, we conclude that the district court

did not abuse its discretion in finding the proposed amendment

to be futile.

            Accordingly, we affirm the district court’s judgment.

We    dispense   with    oral   argument   because     the    facts   and   legal




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED




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