2020 WL 3791894

United States District Court, E.D. Louisiana.
Sean O. WATSON
v.
Reginald JONES, et al.
CIVIL ACTION NUMBER: 19-2219
|
Signed 07/06/2020
|
Filed 07/07/2020
Attorneys and Law Firms
Leo J. Palazzo, Jason J. Markey, Mario A. Arteaga, Palazzo Law Firm, Gretna, LA, for Sean O. Watson.
Guy D. Perrier, Nathan M. Gaudet, Perrier & Lacoste, LLC, New Orleans, LA, for National Interstate Insurance Company, Evergreen Transport, LLC, Reginald S. Jones.

SECTION: “B”(3)

OPINION
IVAN L.R. LEMELLE , SENIOR UNITED STATES DISTRICT JUDGE
*1 Before the Court are: (1) Defendants National Interstate Insurance Company (“National”), Evergreen Transport, LLC (“Evergreen”), and Reginald S. Jones’ (“Mr. Jones”) (collectively “defendants”) motion for partial summary judgment (Rec. Doc. 12); (2) plaintiff Sean O. Watson’s response in opposition (Rec. Doc. 14); and (3) defendants’ reply in support of their motion for summary judgment (Rec. Doc. 18).

I. FACTS AND PROCEDURAL HISTORY
The facts of this case arise from an automobile accident, involving plaintiff Sean O. Watson and defendant Mr. Jones. Rec. Doc. 1-4 at 1. Plaintiff is a resident of Jefferson Parish. Id. Mr. Jones is a resident of Mobile County, Alabama. Id. Defendant Evergreen is a foreign corporation authorized to do business in the Parish of Orleans. Id. Defendant National is a foreign insurance corporation authorized to do business in the Parish of Orleans, incorporated and with its principal place of business in Ohio. Id.

On February 14, 2018, plaintiff was traveling eastbound in the left lane of Interstate 610 in Orleans Parish, Louisiana. Id. A 2012 Kenworth Construction truck, owned by defendant Evergreen, operated by defendant Mr. Jones, allegedly entered plaintiff’s lane and crashed into plaintiff’s vehicle. Id. at 2. On February 4, 2019, plaintiff filed suit in the Civil District Court for the parish of Orleans. Id. at 1. In his state court complaint, plaintiff asserted two causes of action against defendant Mr. Jones as follows: (1) liability for acts causing damage pursuant to Louisiana Civil Code Article 2315; and (2) negligence pursuant to Louisiana Civil Code Article 2316. Id. Plaintiff also asserted a cause of action against defendant Evergreen, claiming they negligently entrusted their vehicle to a negligent driver, i.e. negligent supervision, hiring, and training. Id. at 3. Plaintiff further asserted that defendant Evergreen is liable for the acts of their employee, Mr. Jones, under a theory of respondeat superior, i.e. vicarious liability.1 Id.

Defendants thereafter removed the case to federal court based on diversity jurisdiction on March 8, 2019. See Rec. Doc. 1. Defendants have filed the instant motion for partial summary judgment, alleging that because defendant Evergreen has stipulated that Mr. Jones was in the course and scope of his employment at the time of the accident, plaintiff, as a matter of law, cannot simultaneously maintain independent causes of action in tort against both Mr. Jones and Evergreen for the same incident. Rec. Doc. 12-3 at 2. Plaintiff has opposed the motion for partial summary judgment. Rec. Doc. 14.

II. LAW AND ANALYSIS

a. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248. The court should view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are insufficient to defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

*2 The movant must point to “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Lindsey v. Sears Religious Organization Exemptionbuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). “This court will not assume in the absence of any proof that the nonmoving party could or would prove the necessary facts, and will grant summary judgment in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the [non-movant].” McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).

Additionally, “[a] partial summary judgment order is not a final judgment but is merely a pre-trial adjudication that certain issues are established for trial of the case.” Streber v. Hunter, 221 F.3d 701, 737 (5th Cir. 2000). Partial summary judgment serves the purpose of rooting out, narrowing, and focusing the issues for trial. See Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1415 (5th Cir. 1993).

b. A Plaintiff May Not Pursue Simultaneous Causes of Action Against Defendants Mr. Jones and Evergreen.
In diversity cases such as these, federal courts must apply state substantive law. In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007)(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)); Ashland Chem. Inc. v. Barco Inc., 123 F.3d 261, 265 (5th Cir. 1997). To determine Louisiana law, a federal district court looks to the final decisions of the Louisiana Supreme Court. Am. Int’l Specialty Lines ins. Co. v. Canal Indemn. Co., 352 F.3d 254, 260 (5th Cir. 2003). In the absence of a final decision of the Louisiana Supreme Court regarding the disputed issue, the court must make an “Erie Guess” to determine how the Louisiana Supreme Court would resolve the issue if presented with the same case. Id.; see also Jones v. Nat’l Liab. & Fire Ins. Co., No. CV 19-4353, 2020 WL 1332944, at *2 (E.D. La. Mar. 23, 2020)(citing Thomas v. Chambers, No. CV 18-4373, 2019 WL 1670745, at *6 (E.D. La. Apr. 17, 2019)).

There are currently no Louisiana Supreme Court decisions that address the current issue. Jones, 2020 WL 1332944, at *2 (citing Wright v. Nat’l Interstate Ins. Co., No. CV 16-16214, 2017 WL 5157537, at *2 (E.D. La. Nov. 7, 2017)). Several courts, including federal courts in this district, have made Erie guesses regarding this exact issue, and have ruled in favor of defendants’ argument. Id. (citing Wright, 2017 WL 5157537, at *2; Dennis v. Collins, No. CV 15-2410, 2016 WL 6637973, at *8 (W.D. La. Nov. 9, 2016); Coffey v. Knight Refrigerated, LLC, No. CV 19-3981, 2019 WL 5684258, at *3 (E.D. La. Nov. 1, 2019); Franco v. Mabe Trucking Co., Inc., No. 17-871, 2018 WL 6072016, at *4 (W.D. La. Nov. 20, 2018); Vaughn v. Taylor, No. 18-1447, 2019 WL 171697, at *3 (W.D. La. Jan. 10, 2019); Wilcox v. Harco Int’l Ins., No. CV 16-187-SDD-EWD, 2017 WL 2772088, at *3 (M.D. La. June 26, 2017)).

In Dennis v. Collins, the federal court for the Western District of Louisiana dealt with the identical issue. Dennis v. Collins, No. CV 15-2410, 2016 WL 6637973, at *7 (W.D. La. Nov. 9, 2016). In Dennis, plaintiff was injured when a Greyhound bus allegedly collided with a vehicle in which she was a passenger. Id. at *1. Plaintiff asserted a claim against defendant Greyhound Lines Inc. for negligent supervision, hiring, and training, and against defendant driver, Collins, for negligent operation of the bus. Id. Defendant Greyhound stipulated that Collins was in the course and scope of his employment at the time of the alleged incident. Id.

*3 The Western District held that plaintiff was unable to maintain simultaneous claims for negligence against both defendant Greyhound and defendant Collins. Id. at *7. In their holding, the court synthesized a rule that states in pertinent part:
A plaintiff may not simultaneously maintain independent causes of action in tort against both an employee and an employer for the same incident when the plaintiff alleges both (a) negligence by the employee and (b) negligent hiring, training, and/or supervision by the employer; and (c) the employer stipulates that the employee acted in the course and scope of employment.
Id. (emphasis in original). As such, defendant’s motion for partial summary judgment on the claim against them for the negligent supervision, hiring, and training of Collins was granted, and the claim was dismissed. Id. at *8.

Similarly, in Wright v. National Interstate Ins. Co., the Federal District Court for the Eastern District of Louisiana held that the rule articulated in Dennis, though not binding on the court, was persuasive. Wright v. Nat’l Interstate Ins. Co., No. CV 16-16214, 2017 WL 5157537, at *3 (E.D. La. Nov. 7, 2017). In Wright, the plaintiff brought suit against defendant driver when he allegedly struck plaintiff’s vehicle in Tangipahoa Parish. Id. at *1. Plaintiff also brought a claim against defendant trucking company for negligently allowing defendant driver to operate the vehicle, for failing to train him, and for failing to maintain his vehicle. Id. at *1. The court held that the rule articulated in Dennis was persuasive, and dismissed the negligent supervision, hiring, and training claim against defendant trucking company. Id. at *3.

Like the defendants in Wright and Dennis, Evergreen has stipulated that Mr. Jones was in the course and scope of his employment when the alleged accident took place. Rec. Doc. 12-3 at 3. Plaintiff has not disputed that fact, and instead relies on the fact that there is no binding case law saying that a cause of action for vicarious liability and direct negligence of an employer may not be maintained. This argument is unpersuasive.

The synthesized rule promulgated by the Western District comports with and in fact was derived in part from a case from the Louisiana Third Circuit Court of Appeal, which came to the same decision in a factually analogous matter. Liberstat v. J&K Trucking, Inc., 00-192, p. 10 (La. App. 3 Cir. 10/11/00); 772 So. 2d 173, 179. In Liberstat, the plaintiffs alleged negligence on the part of the defendant driver and negligence in hiring and supervision on the part of the defendant employer. See generally id. Plaintiff asserted that the trial court erred when it failed to instruct the jury on defendant employer’s negligent hiring, training, and supervision of the defendant driver, and also asserted that the trial court erred when it equated respondeat superior to all possible theories of recovery. Id. at p. 10; 179.

The Louisiana Third Circuit Court of Appeal held that the trial court did not err in failing to instruct on the defendant employer’s negligent hiring and training of the defendant driver. Id. In its reasoning, the court explained:
After a review of the record, this Court finds that the trial court’s instructions regarding Patterson’s possible liability are an accurate reflection of the law. Patterson, as Mr. Mitchell’s employer, would be liable for his actions under the theory of respondeat superior. If Mr. Mitchell breached a duty to the Appellants, then Patterson is liable under the theory of respondeat superior. If Mitchell did not breach a duty to the Appellants then no degree of negligence on the part of Patterson in hiring Mitchell would make Patterson liable to the Appellants.
*4 Id. The court further noted that the failure to give the instruction was not error in this case, as any instruction as to the negligent supervision, hiring, or training by defendant employer “was not appropriate” and sufficiently covered under the theory of respondeat superior. See id.

Accordingly, in-step with both Louisiana and Federal jurisprudence interpreting Louisiana law, plaintiff may not maintain both a negligence claim against Mr. Jones and a separate claim for negligent supervision, hiring, and training against Evergreen, when Evergreen has stipulated that Mr. Jones was acting within the course and scope of his employment at the time of the collision. As there is no issue of material fact and defendant movants are entitled to a judgment as a matter of law, plaintiff’s claim against defendant Evergreen for negligent supervision, hiring, and training is dismissed.

III. CONCLUSION
For the reasons stated above,

IT IS ORDERED that defendants’ motion for partial summary judgment is GRANTED, dismissing claims against defendants for negligent supervision, hiring, and training.

All Citations
Slip Copy, 2020 WL 3791894

Footnotes

1
Plaintiff notes in his complaint that “[u]pon information and belief, [Mr. Jones] was in the course and scope of his employment with [Evergreen] at the time of the subject crash … [Evergreen] is liable for the acts of its employee under the theory of respondeat superior.” Rec. Doc. 1-4. at 3 (emphasis added).

2020 WL 3619079

United States District Court, M.D. Pennsylvania.
Carmen CIOTOLA, Plaintiff
v.
STAR TRANSPORTATION & TRUCKING, LLC, and, Quarterback Transportation, USA Inc., and, Ball Metal Beverage Container Corp., Defendants,
and
Oldcastle, Inc. Liberity Mutual Corporation, Defendant/Intervenors
CIVIL ACTION NO. 3:19-753
|
Signed 07/02/2020
Attorneys and Law Firms
Edward J. Ciarimboli, Harry P. McGrath, Jr., Molly Clark, Fellerman & Ciarimboli Law, P.C., Kingston, PA, for Plaintiff.
Allen R. Bunker, Henry J. Noye, Bunker & Ray, Philadelphia, PA, Marc S. Blubaugh, Benesch, friedlander, Coplan & Aronoff, LLP, Columbus, OH, for Defendant Quaterback Transportation Inc.
Nicholas R. Jimenez, Paige F. MacDonald-Matthes, Obermayer Rebmann Maxwell & Hippel LLP, Harrisburg, PA, Richard P. Limburg, Obermayer Rebmann Maxwell & Hippel LLP, Philadelphia, PA, for Defendant Ball Metal Beverage Container Corp.
Kevin L. Connors, Pro Hac Vice, ConnorsO’Dell, LLP, Exton, PA, for Defendant/Intervenor Old Castle, Inc.

MEMORANDUM
MALACHY E. MANNION, United States District Judge
*1 Pending before the court is defendant Ball Metal Beverage Container Corp.’s (“Ball Metal”) motion for leave of court, (Doc. 89), to amend its answer to the plaintiff’s second amended complaint (“SAC”), (Doc. 25), to assert the cross-claims for contribution and indemnity against co-defendants Star Transportation & Trucking LLC (“Star”) and Quarterback Transportation, Inc. (“Quarterback”) that were contained in its answer to plaintiff’s first amended complaint. Quarterback concurred in the motion. Star did not concur in the motion and filed a brief in opposition to Ball Metal’s motion. Although plaintiff did not concur in the motion, he did not file a brief in opposition to it and, thus is deemed as not opposing it under Local Rule 7.6, M.D.Pa.

For the reasons that follow, the court will DENY Ball Metal’s motion, (Doc. 89), and not allow it to amend its answer to plaintiff’s SAC to include its cross-claims against its co-defendants.

I. PROCEDURAL BACKGROUND1
On May 2, 2019, plaintiff, Carmen Ciotola, initiated this action by filing a complaint against Ball Metal, Quarterback, and Star for personal injuries sustained from a motor vehicle accident that occurred on November 12, 2018. (Doc. 1). Plaintiff filed an amended complaint against Star, Quarterback, and Ball Metal on July 12, 2019, (Doc. 8), seeking damages caused by the accident. Ball Metal filed its answer on August 2, 2019, (Doc. 11), and included cross-claims against its co-defendants, Star and Quarterback for contribution and indemnity. In its cross-claim against Quarterback, Ball Metal reserved the right to seek contractual defense and indemnity from Quarterback pursuant to the terms of the Shipper/Broker Transportation Agreement between Ball Metal and Quarterback Transportation.

Plaintiff then filed SAC against Ball Metal and Quarterback on September 27, 2019. (Doc. 25). Plaintiff originally named Star as a defendant in this case, however, plaintiff settled his claims against Star and dismissed all of his claims against it on September 25, 2019, pursuant to a Joint Tortfeasor Release Agreement. As such, plaintiff did not name Star as a defendant in his SAC. On October 7, 2019, Quarterback filed a Third Party Complaint against Star based on its liability for the November 12, 2018 accident. (Doc. 28).

Ball Metal filed its answer to plaintiff’s SAC on October 22, 2019. (Doc. 39). However, Ball Metal did not include its cross-claims for contribution and indemnity against Quarterback and Star that it raised in its answer to plaintiff’s first amended complaint.

*2 On May 21, 2020, Ball Metal filed its motion to amend its answer to plaintiff’s SAC to include its cross-claims for contribution and indemnity against co-defendants Star and Quarterback that were contained in its answer to plaintiff’s first amended complaint, (Doc. 89). Star filed its brief in opposition to Ball Metal’s motion on June 3, 2020, with attached Exhibits. (Doc. 90). Ball Metal filed its brief in support of its motion with Exhibits on June 4, 2020. (Doc. 91).

II. FACTUAL BACKGROUND
On November 12, 2018, Ronald Hataway was driving a 2009 Volvo commercial tractor trailer on Interstate 81 in Luzerne County, PA, within the scope of his contractor relationship with Star. Hataway was provided the tractor trailer he drove by Star, and Star had leased it. Star was hired as a motor carrier by Quarterback. While Hataway was driving in the southbound lane, he collided into the rear end of a 2004 Ford Ranger pick-up driven by plaintiff causing him injuries. When the accident occurred, Hataway was transporting a load of aluminum cans used for beverages from the shipper, Ball Metal. The load Hataway was transporting was brokered by Quarterback pursuant to Agreements it had with Ball Metal and Star. In addition to suing Star and Ball Metal for the injuries he sustained in the accident, plaintiff sued Quarterback, which had arranged for the transportation of the load of aluminum cans from Ball Metal’s plant in Wallkill, New York, to Missouri.

The police report indicated that Hataway took his eyes off the road and crashed into plaintiff’s pick-up truck at a high rate of speed, which then caused his pick-up to crash into the vehicle in front of it. The police cited Hataway with three violations regarding the collision.

On September 24, 2018, Hataway plead guilty to “Possession of Alcohol Beverage in a [commercial motor vehicle]” regarding the accident with plaintiff. Hataway is not a named defendant in this case.

III. DISCUSSION
Ball Metal contends that its proposed cross-claims against Quarterback and Star “will not prejudice either plaintiff or Star, because the right to contribution or indemnity exists independent of cross-claims, but the inclusion of cross-claims makes the resolution of such claims more efficient for all concerned.”

In its opposition brief, Star points out that Ball Metal did not amend its answer within the time period set by the court in its November 5, 2019 Scheduling Order, (Doc. 43), which adopted the parties’ October 18, 2019 Joint Case Management Plan (“JCMP”), (Doc. 35). Rather, star indicates that Ball Metal waited five months after the deadline to amend pleadings (December 20, 2019) despite the fact that Ball Metal was well aware of its cross-claims before plaintiff filed his SAC. Star contends that it will now be prejudiced if Ball Metal is allowed to amend its answer since the discovery deadline has passed as well as all of the other case management deadlines and, thus it will now be prevented from developing a defense to Ball Metal’s cross-claims. Star also states that it was not able to file a motion for summary judgment with respect to Ball Metal’s proposed cross-claims.

As the court stated in Veneziale v. Quest Diagnostics, 2013 WL 4551178, *1 (E.D. Pa. Aug. 28, 2013), under Fed.R.Civ.P. 15(a):
A party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a). The Rule clearly states that “[t]he court should freely give leave when justice so requires.” Id. Nonetheless, the policy favoring liberal amendments is not “unbounded.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990). The decision whether to grant or to deny a motion for leave to amend rests within the sound discretion of the district court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Waterfront Renaissance Assoc. v. Phila., 701 F.Supp.2d 633, 639 (E.D. Pa. 2010). A district court may deny leave to amend a complaint where “it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000) (citing Foman, 371 U.S. at 182).

*3 Initially, there is no doubt that Ball Metal did not timely seek to amend its answer to plaintiff’s SAC and waited five months after the deadline passed to file its motion. Star contends that this delay has greatly prejudiced it since there was no reason for Ball Metal to have waited so long because it knew of its proposed cross-claims well before it filed its instant motion and because “Ball chose to wait until the expiration of all case management deadlines, after all parties had filed motions for summary judgment and served their expert reports, to seek leave to file its crossclaim.” Star also contends that “[b]y failing to amend prior to the agreed upon and Court imposed deadline, Ball lulled Star into believing it had abandoned its crossclaim and denied Star the opportunity to conduct discovery on Ball’s crossclaim and prevented Star from filing a motion for summary judgment with respect to such claim”, and that “[t]his denial is clearly prejudicial to Star, who had no opportunity to conduct discovery on Ball’s crossclaim, present expert opinion on Ball’s crossclaim, or seek summary judgment against Ball’s crossclaim….”

Additionally, Star argues that Ball Metal’s proposed amendment would be futile since its cross-claims are premature and that no right of indemnification has arisen yet since “Ball has not paid any damages to Plaintiff.” Star also argues that Ball Metal’s claim for contribution is premature since “Ball has not yet been determined to be a joint tortfeasor with Star and, [ ], has not paid any judgment.”

Ball Metal explains that it did not include its cross-claims in its answer to plaintiff’s SAC since its “counsel believed the cross-claims, once stated, would survive”, but “now understands that [its] cross-claims may have been superseded by [its] filing of [its] answer to [plaintiff’s SAC].” As such, it states that it had no intent to prejudice Star or put it at a disadvantage. Ball Metal also points out that Star is still a party in this case since it was not dismissed by leave of court or by consent of the parties when plaintiff filed his SAC, and that it is a third-party defendant in Quarterback’s third-party complaint. In fact, Ball Metal states that Star’s owner, Almir Muharemovic, “admitted in his deposition that he was aware there were still claims pending against Star Transportation and Star Transportation could still be found negligent.” (citing to Ex. A, Doc. 91-1).

Ball Metal also explains that “[u]nder Pennsylvania’s Fair Share Act, 42 Pa.C.S.A. § 7102, a tortfeasor is liable only for his allocated share of liability, unless his share of liability is 60% or more of the total”, and “[s]ince it was Star Transportation’s driver that caused the accident, if Star is found less than 60% liable, then it is probable that no defendant’s liability will exceed 60% and there will be no joint and several liability, and therefore no right of contribution.”

Finally, Ball Metal contends that “[t]he right to contribution or indemnity exists independent of the cross-claims, but the inclusion of the cross-claims in this matter would make the resolution of such claims more efficient for all concerned.”

Ball Metal did not seek to amend its answer to plaintiff’s SAC in a timely manner, but “[i]n the Third Circuit, delay alone does not justify denying a motion to amend.” Veneziale, 2013 WL 4551178, *2 (citations omitted). “Rather, it is only where delay becomes ‘undue,’ placing an unwarranted burden on the court, or … ‘prejudicial,’ placing an unfair burden on the opposing party that denial of a motion to amend is appropriate.” Id. (citations omitted).

In Veneziale, 2013 WL 4551178, *2, the court then stated:
As such, the question of undue delay requires the court to focus on the movant’s reasons for not amending sooner, while “bearing in mind the liberal pleading philosophy of the federal rules.” Cureton, 252 F.3d at 273; see also Lindquist v. Buckingham Twp., 106 F. App’x 768, 775 (3d Cir. 2004) (noting that the question of undue delay, as well as the question of bad faith, requires that the court focus on the plaintiff’s motives for not amending their complaint to assert this claim earlier). “Tactical decisions and dilatory motives may lead to a finding of undue delay.” Leary v. Nwosu, No. Civ.A.05–5769, 2007 WL 2892641, at *4 (E.D. Pa. Oct. 2, 2007); see also Cureton, 252 F.3d at 271–74 (finding undue delay where plaintiffs made a tactical decision not to seek leave to amend until after they lost first argument on summary judgment). Notably, “[t]here is no presumptive period in which a motion for leave to amend is deemed ‘timely’ or in which delay becomes ‘undue.’ ” Arthur v. Maersk, Inc., 434 F.3d 196, 205 (3d Cir. 2006). Rather, “[w]hether delay is undue depends on the facts and circumstances of the case.” Nat’l Recovery Agency, Inc. v. AIG Domestic Claims, Inc., No. Civ.A.05–0033, 2006 WL 1289545, at *4 (M.D. Pa. May 9, 2006). Ultimately, “the obligation of the district court in its disposition of the motion is to articulate the imposition or prejudice caused by the delay, and to balance those concerns against the movant’s reasons for delay.” Coventry v. U.S. Steel Corp., 856 F.2d 514, 520 (3d Cir. 1988).

*4 In balancing the reasons why Ball Metal delayed in the filing of its motion to amend its answer with the prejudice caused by the delay, the court finds that the reasons for the delay are outweighed by the prejudice to Star. The time to file dispositive motions has passed almost three months ago and several motions were filed as noted above. Thus, Star did not have the opportunity to conduct any discovery or file any motion regarding Ball Metal’s cross-claims against it. This court will not re-open the discovery period and the time to file dispositive motions in this case originally filed over 13 months ago.

Additionally, as Ball Metal points out, it can still seek contribution and indemnity against Star and Quarterback regardless of its proposed cross-claims, under Pennsylvania law, if appropriate at the proper time. In fact, in the JCMP provided that “Ball Metal reserves the right to join Star Transportation on a claim for contribution or indemnity.” (Doc. 35 at 4). Thus, any prejudice to Ball Metal is minimal.

“While parties should freely be given leave to amend when justice so requires, that freedom is not limitless”, Veneziale, 2013 WL 4551178, *5, and since Ball Metal filed its motion for leave to amend in an untimely fashion, and if granted, will prejudice Star’s ability to defend against the proposed cross-claims, its motion will be denied.

IV. CONCLUSION
For the forgoing reasons, the court will DENY Ball Metal’s motion for leave of court to amend its answer to plaintiff’s SAC to include its cross-claims against Quarterback and Star, (Doc. 89). An appropriate order shall issue.

All Citations
Slip Copy, 2020 WL 3619079

Footnotes

1
Also pending are the cross-motions for summary judgment of Quarterback, (Doc. 69), and the plaintiff, (Doc. 75). Further, pending are the motions summary judgment of Quarterback with respect to its claims asserted against Star in its third party complaint, (Doc. 67), of Ball Metal with respect to plaintiff’s claims against it in his SAC, (Doc. 71), and of Star with respect to the claims asserted against it in Quarterback’s third party complaint, (Doc. 73). The court only states the background relevant to Ball Metal’s motion to amend its answer, (Doc. 89), to plaintiff’s SAC.
The court will decide the other pending motions in separate opinions.