United States District Court,

E.D. Kentucky,

Northern Division,

at Ashland.

The ESTATE OF Lenden Forrest FERRELL by and Through its Administratrix Colleen Ferrell and Colleen Ferrell, Individually, Plaintiffs

v.

J & W RECYCLING, INC., Defendant

and

The Estate of Lenden Forrest Ferrell by and Through its Administratrix Colleen Ferrell, and Colleen Ferrell, Individually, as Assignees of the Rights of J & W Recycling, Inc., Defendant/Third–Party Petitioners

v.

The Burlington Insurance Company, Third–Party Respondent.

 

Civil Action No. 0:13–CV–168–HRW.

Signed April 30, 2014.

 

Ashley Owens Hopkins, John M. Famularo, Marshall R. Hixson, Stites & Harbison PLLC, Lexington, KY, for Plaintiffs and Defendant/Third–Party Petitioners.

 

Donald Killian Brown, Jeri Barclay Poppe, Krauser & Brown, Louisville, KY, Gregory L. Monge, Vanantwerp, Monge, Jones & Edwards, Ashland, KY, for Defendant.

 

Margaret Jane Brannon, Robert Franklin Duncan, Jackson Kelly PLLC, Lexington, KY, for Third–Party Respondent.

 

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOIT, JR., District Judge.

I. INTRODUCTION

*1 This matter is before the Court upon The Estate of Lenden Forrest Ferrell and Colleen Ferrell’s Motion to Remand [Docket No. 3] and Motion to Abstain from Exercising Jurisdiction [Docket No. 4]. The Court finds that diversity jurisdiction has been established pursuant to 28 U.S.C. § 1322(a), as complete diversity exists among the parties and the jurisdictional amount-in-controversy requirement has been satisfied. However, for reasons set forth herein, the Court declines to exercise discretionary jurisdiction over this declaratory judgment action under the Declaratory Judgment Act (DJA), which in itself “does not create an independent basis for federal subject matter jurisdiction.” Heydon v. MediaOne of Southeast Mich., Inc., 327 F.3d 466, 470 (6th Cir.2003); see also 28 U.S.C. § 2201.

 

II. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a tragic truck accident which occurred in Greenup County, Kentucky on June 29, 2011. On that day, a tractor-trailer driven by Wesley A. Walker collided with a vehicle operated by Lenden Forrest Ferrell. Both Mr. Ferrell and Mr. Walker died as a result of injuries sustained in accident. At the time of the accident, Mr. Walker was operating a tractor-trailer, owned by J & W Recycling, within the course and scope of his employment with J & W Recycling and with its knowledge. The tractor trailer operated by Mr. Walker had been loaded and secured using a forklift owned by J & W Recycling and operated by its employee.

 

At the time of the accident, J & W Recycling held a Commercial General Liability insurance policy with Burlington Insurance and made a claim for coverage. However, Burlington Insurance denied coverage and refused to defend or indemnify J & W Recycling.

 

On October 25, 2011, the Estate of Lenden Forrest Ferrell and Colleen Ferrell filed suit against J & W Recycling seeking to recover wrongful death damages, alleging that the tractor trailer operated by its employee was improperly loaded by its forklift and that this was a substantial factor in causing the collision. The case was litigated in Greenup Circuit Court for almost two years. After the conclusion of multiple discovery, an Agreed Judgment was entered on September 17, 2013 in favor of the Ferrells against J & W Recycling. In the Agreed Judgment, J & W Recycling admitted liability. On the same day, the Estate of Lenden Forrest Ferrell and Colleen Ferrell accepted assignment of J & W Recycling’s rights against Burlington Insurance. Thereafter, with leave of the Greenup Circuit Court, the Ferrell Assignees filed a Third–Party Petition for Declaration of Rights against Burlington Insurance seeking to adjudge the existence of coverage under the Policy.

 

In response to the Petition, Burlington Insurance filed a Notice of Removal, asserting jurisdiction on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332.

 

The Ferrells move this Court to refrain from exercising its discretionary jurisdiction over this action.

 

III. ANALYSIS

*2 The Declaratory Judgment Act, 28 U.S.C. § 2201, “confer[s] on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). In other words, the Act “confers discretion on courts, not rights on litigants.” Am. Home Assurance Co. v. Evans, 791 F.2d 61, 64 (6th Cir.1986) (citing Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). Thus, even when the Court may otherwise exercise jurisdiction over a declaratory judgment action, it is “under no compulsion” to do so. Wilton, 515 U.S. at 278.

 

The Ferrells have moved the Court pursuant to its unique discretion under the Declaratory Judgment Act, to abstain from presiding over this case. Burlington Insurance, however, argues that equitable considerations support the exercise of jurisdiction. The Court does not find Burlington’s arguments persuasive and believes the equitable considerations counsel against the exercise of jurisdiction over this case.

 

As an initial matter, the Court notes that this case is procedurally distinct from many federal Declaratory Judgment Act cases. It was filed pursuant to Kentucky’s state declaratory judgment statute, and removed to federal court. Thus, as one court explained, “an issue arises as to whether a federal district court has the same discretion to abstain in the context of a removed state-court declaratory judgment action as it does in the context of a federal declaratory judgment action under 28 U.S.C. § 2201.” National Union Fire Ins. Co. v. Rodriguez, No. 03–74442, 2004 WL 3257089, at *9 (E.D.Mich., Feb.12, 2004). In National Union, the court held that the discretionary standard that governs federal declaratory judgment actions applies to removed cases brought under a state declaratory judgment statute. Id. See also, Bland v. Southline Steel Indus., No. 1:08–161, 2008 U.S. Dist. LEXIS 101855, at *5 n. 1, 2008 WL 5274880 (W.D.Ky., Dec. 15, 2008) (explaining that the court “applies ‘federal law governing discretion in entertaining declaratory judgment actions even though the action was originally brought under a state declaratory judgment statute and removed to federal court based on diversity’ ”.) Thus, even though this action was commenced under the Kentucky declaratory judgment statute, the Court relies on the broad discretion granted to it its federal counterpart.

 

The Sixth Circuit has identified five factors, first articulated in Grand Trunk Western Railroad Co. v. Consolidated Rail Corp., 746 F.2d 323 (6th Cir.1984), which guide a district court in determining whether to exercise its discretionary jurisdiction under the Declaratory Judgment Act. Those factors include:

 

(1) whether the declaratory action would settle the controversy;

 

(2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue;

 

(3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing or to “provide an arena for a race for res judicata;”

 

*3 (4) whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and

 

(5) whether there is an alternative remedy which is better or more effective. Id. at 346 (formatting altered).

 

This list is not exhaustive. Rather, “the Court must make a full inquiry into all relevant considerations.” Brotherhood Mut. Ins. Co. v. United Apostolic Lighthouse, Inc., 200 F.Supp.2d 689, 692 (E.D.Ky.2002).

 

In this case, the first factor weighs in favor of exercising jurisdiction. The case at hand is limited to a coverage dispute and a declaration of whether coverage is due would settle the controversy. See Jordan Ice Co. v. Gtrange Mutual Casualty Company, 2006 WL 3497767, at *4 (“[A]ssuming the Court would ultimately be able [to] adjudicate the matter in favor of one party—i.e.,—coverage or no coverage this determination would dispose of the declaratory judgment action.”). Likewise, the result would usefully clarify the legal relations of the two parties. Id .

 

As for procedural fencing, Burlington vehemently maintains that the Ferrell Estate is attempting to block its statutory right to removal. Given that the remaining factors weigh heavily in favor of abstention, the Court need not dwell upon the issue of procedural fencing.

 

The fourth and fifth factor are the most relevant in the Court’s analysis of this case. When a court considers whether to accept jurisdiction over a case like this, “competing state and federal interests weigh in the balance.”   Adrian Energy Assoc., v. Mich. Pub. Serv. Comm., 481 F.3d 414, 421 (6th Cir.2007). In considering the fourth factor—whether the action would cause friction between state and federal courts—the Sixth Circuit has provided three additional sub-factors to consider:

 

(1) whether the underlying factual issues are important to an informed resolution of the case;

 

(2) whether the state trial court is in a better position to evaluate those factual issues than is the federal court; and

 

(3) whether there is a close nexus between the underlying factual and legal issues and state law and/or public policy, or whether federal common or statutory law dictates a resolution of the declaratory judgment action.

 

Bituminous Cas. Corp. v. J & L Lumber Co., Inc., 373 F.3d 807, 81415 (6th Cir.2004) (citing Scottsdale Ins. Co. v. Flowers, 211 F.3d 964, 968 (6th Cir.2000)).

 

As to the first sub-factor, as the Ferrells’ Third–Party Petition against Burlington requests “a declaration as to whether the Policy provides coverage for the unsatisfied amount of the Agreed Judgment,” the underlying factual issues are essential to any determination about Burlington’s contractual indemnity obligations to J & W Recycling.

 

Further, having presided over the litigation of this matter for over two years, the Greenup Circuit Court has the necessary factual background to decide the parties’ rights. See Bituminous, 373 F .3d 814–815 (factors four and five require an evaluation of … (2) whether the state trial court is in a better position to evaluate those factual issues … ). The facts essential to resolution were developed during state court discovery and the details supporting these facts are within the knowledge of the Greenup Circuit Court. For example, the accident investigation report found that, with regard to the tractor-trailer operated by Mr. Walker, “the securement of the cargo did not meet the minimum requirements set forth by FMSCR 393.132” therefore causing a load to shift, which caused or contributed to the accident. The investigator specifically noted that an inadequate number of chains and improper type of chains were used to secure the cargo on the tractor-trailer operated by Mr. Walker. To determine whether Burlington must indemnify J & W Recycling, a court will have to apply these facts and others to the language of the Policy. The Greenup Circuit Court has the distinct advantage of having presided over the discovery of these facts and is, thus, far better suited than this Court to evaluate those facts.

 

*4 In addition, the controversy requires a ruling on previously undecided issues of Kentucky law, specifically whether the Policy provides coverage for the negligent use, selection and supervision of mobile equipment like forklifts. Where Kentucky courts have not yet definitively spoken on an issue of state law, this consideration weighs against exercising jurisdiction.   Bitmunious, 373 F.3d at 816. In other words, this undecided question of Kentucky law ought to be resoled by a Kentucky court.

 

With regard to the third sub-factor, the simple fact that this is an insurance coverage dispute weighs in favor of abstention. “States regulate insurance companies for the protection of their residents, and state courts are best situated to identify and enforce the public policies that form the foundation of such regulation.” Bituminous, 373 F.3d at 815 (citations omitted).

 

This matter was removed not on the basis of a federal question, but instead based on diversity jurisdiction. Kentucky’s interest therefore outweighs this Court’s since the case presents no federal issue and the state court is the superior forum based on public policy. See id.; see also American Home Assurance Co. v. Evans, 791 F.2d 61, 63 (6th Cir.1986) (questioning “… the need for such declaratory judgments in federal courts when the only question is one of state law and when there is no suggestion that the state court is not in a position to define its own law in a fair and impartial manner.”)

 

IV. CONCLUSION

The Sixth Circuit has not provided a precise formula for balancing the Grand Trunk factors. In this case, the first two factors weigh in favor of exercising jurisdiction, while the fourth and fifth factors-expressing “considerations of comity,” id.—weigh heavily against. In Jordan Ice, the court was confronted with the same split. 2006 WL 3498867, at *5. There the court found that the latter factors predominated and declined to exercise jurisdiction. Id. The Court will follow that lead. In this case, the fourth and fifth factors-which together consider he need: (I) for comity between the courts; (ii) to avoid encroaching on state jurisdiction; and (iii) to avoid answering unanswered questions of state law that implicate important state public policies-outweigh the others. Thus, the Court will abstain from exercising jurisdiction over this action for declaratory relief and remand to the state court.

 

Accordingly, IS HEREBY ORDERED that The Estate of Lenden Forrest Ferrell and Colleen Ferrell’s Motion to Remand [Docket No. 3] and Motion to Abstain from Exercising Jurisdiction [Docket No. 4] be SUSTAINED and this matter be REMANDED to Greenup Circuit Court.

United States District Court, E.D. North Carolina,

Western Division.

GREGORY POOLE EQUIPMENT COMPANY, Plaintiff,

v.

ATS LOGISTICS SERVICES, INC. and East Coast Specialized Hauling, LLC, Defendants.

East Coast Specialized Hauling, LLC, Third Party Plaintiff,

v.

Pritchard Brown, LLC, Third Party Defendant.

 

No. 5:13–CV–549–BO.

Signed April 30, 2014.

Filed May 1, 2014.

 

James A. Beck, II, Vann & Sheridan, LLP, Raleigh, NC, for Plaintiff.

 

Casper Fredric Marcinak, III, Robert D. Moseley, Smith Moore Leatherwood, LLP, Greenville, SC, Christopher M. Kelly, Gillian Shannon Crowl, Gallivan, White & Boyd, P.A., Charlotte, NC, for Defendants and Third Party Plaintiff.

 

Jeffrey A. Doyle, Joshua D. Neighbors, Hedrick, Gardner, Kincheloe and Garofalo, LLP, Raleigh, NC, for Third Party Defendant.

 

ORDER

TERRENCE W. BOYLE, District Judge.

*1 This matter is before the Court on third-party defendant, Pritchard Brown, LLC’s (“Pritchard”), motion to dismiss [DE 35] and third-party plaintiff, East Coast Specialized Hauling, LLC’s (“East Coast”), motion for leave to amend pleadings and add an additional party [DE 38]. A hearing was held on these matters on April 29, 2014 at 2:00 p.m. in Elizabeth City, North Carolina. These motions are now ripe and for the following reasons the motion to dismiss is GRANTED and the motion for leave to amend is GRANTED IN PART and DENIED IN PART.

 

BACKGROUND

This action arises out of the shipment of a generator set and enclosure FN1 from Baltimore, Maryland to Holly Springs, North Carolina. Plaintiff, Gregory Poole Equipment Company (“Poole”), alleges it contracted with ATS Logistics (“ATS”) to ship the generator set, and that ATS contracted with East Coast to carry out the shipping services. During shipment, the generator set enclosure manufactured by Pritchard collided with a bridge in North Carolina and severely damaged the enclosure. After an assessment was made, Poole and Pritchard ordered the set to be returned to Baltimore for repairs. During the return journey, the generator set enclosure collided with another bridge. East Coast alleges that the design and manufacture of the enclosure as well as the manner of loading it onto the trailer by Pritchard were inconsistent with recognized standards and created a latent hazard which caused the height of the generator set to rise during transportation thereby increasing the overall height of the shipment past what was expected and making the load too tall for the chosen route resulting in the bridge strikes.

 

FN1. The enclosure is the permanent housing unit for the generator set and consists of a steel fuel tank which forms the base of the unit. The generator is placed on top of the fuel tank and is enclosed by a framed aluminum structure consisting of aluminum panels.

 

Poole is alleging claims against ATS and East Coast for carrier liability under the Carmack Amendment, 49 U.S.C. § 14706, against ATS for breach of contract, and against both ATS and East Coast for negligence. The complaint seeks damages of $356,907.59 plus interest from the date of the initial damages to be awarded against ATS Logistics and East Coast jointly and severally.

 

East Coast filed an answer to plaintiff’s complaint, a counterclaim against plaintiff, a crossclaim against ATS, and a third-party complaint for indemnity against Pritchard. On March 14, 2014, the Court granted ATS’s motion to dismiss East Coast’s crossclaim for unfair and deceptive trade practices. Pritchard has moved to dismiss East Coast’s original third-party complaint and East Coast subsequently moved for leave to amend its answer and third-party complaint and to add a party. East Coast seeks to bring three crossclaims against Pritchard.

 

East Coast asserts its first crossclaim under Rule 14 of the Federal Rules of Civil Procedure. It alleges that a contract existed between Pritchard and East Coast and that it is entitled to recover against Pritchard for any amount East Coast is ordered to pay plaintiff in damages because the proximate cause of those damages and East Coast’s potential liability was the negligence of Pritchard. East Coast asserts its second crossclaim under Rules 13(h), 19 and 20 of the Federal Rules of Civil Procedure that is otherwise identical to the first. East Coast asserts its third crossclaim under Rules 13(h), 19 and 20 of the Federal Rules of Civil Procedure. It alleges that Pritchard contracted with East Coast to provide transportation services and is liable for reasonable freight charges that it has refused to pay.

 

DISCUSSION

*2 Leave to amend should be freely given when justice so requires. Fed.R.Civ.P. 15. It is within the discretion of the court to allow or deny the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). However, the right to amend is not unfettered. “The law is well settled that leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.” Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir.1999) (citation omitted). A proposed amendment is futile when “it advances a claim or defense that is legally insufficient on its face.”   Joyner v. Abbott Labs., 674 F.Supp. 185, 190 (E.D.N.C.1987).

 

Pritchard does not challenge the motion to amend on grounds of bad faith or prejudice in its opposition memorandum to the motion. Therefore the only ground on which the Court can deny the motion to amend is futility. Pritchard rests on its supporting memoranda for its motion to dismiss in establishing the futility of East Coast’s proposed amendment and therefore the Court will discuss the issues raised by the motion to dismiss at the same time as examining the potential futility of East Coast’s motion to amend.

 

The crux of Pritchard’s argument is that East Coast has failed to set forth any viable claim that it would have against Pritchard and that East Coast has failed to establish that Pritchard owed any duty to East Coast. A complaint must be dismissed if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008) (quoting Bell Atl. Corp. v. Twombley, 550 U.S. 544 (2007)). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint and the complaint should be dismissed where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. E. Shore Markets, Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir.2000).

 

The parties disagree whether North Carolina or Maryland law controls the question of whether or not East Coast can seek indemnity from Pritchard. Poole filed the complaint in this Court, but the underlying matter stems from a series of events that started and concluded in Maryland. “In federal cases based on federal question jurisdiction but also containing supplemental state law claims, federal courts must apply the choice-of-law rules of the forum state in analyzing the state law claims.” DeWitt v. Hutchins, 309 F.Supp.2d 742, 751 (M.D.N.C.2004). “North Carolina adheres to the choice of law rule of lex loci delicti in tort actions,” meaning that North Carolina applies the law of “the state where the last event necessary to make an actor liable for an alleged tort takes place.” Brendle v. Gen. Tire & Rubber Co., 408 F.2d 116, 117, n. 3 (4th Cir.1969). Pritchard manufactured the generator set enclosure in Maryland, and any design flaws would have been present at the time it began its journey in Maryland. However, liability would not have been created had the enclosure not struck the first bridge in North Carolina. However, all of the damage to the generator was not completed until the second bridge strike which took place in Maryland. Therefore this was the last event which could have created a liability for the final amount of damage and the proper law to be applied here is Maryland law.

 

*3 East Coast’s third claim is a claim for freight charges and is only disputed as to whether or not the existence of a contract between East Coast and Pritchard has been properly alleged. East Coast has properly pled that Pritchard was acting as an agent of plaintiff and consignor and that Pritchard’s agents signed the bills of lading identifying Pritchard as the shipper and therefore Pritchard is liable for the reasonable freight charges. Accordingly, East Coast is allowed to amend its pleadings, add Pritchard as a party, and bring its twenty-fifth defense which is a cross claim for freight charges. This claim is best viewed as joining an additional party to its existing crossclaim and counterclaim for freight charges against ATS and Poole and is therefore properly brought under FED.R.CIV.P. 13(h), 20(a)(1)(A). Under FED. R. CIV. P . 18(a), East Coast is allowed to bring its indemnity claim as well, subject to its survival of the motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6).FN2

 

FN2. The Court notes that East Coast’s claims for indemnity are identical except that one is asserted under Rule 14 and the other under Rule 13(h), 19 and 20. Because the claim is properly brought under Rule 18 it does not matter which claim survives, but for clarity the Court will discard the twenty-third defense and consider the twenty-fourth defense as the sole remaining claim for indemnity.

 

Maryland recognizes a claim for indemnity not contained expressly in a contract. See Hartford Acc. and Indemn. Co. v. Scarlett Harbor Assoc. Ltd., 674 A.2d 106, 134 (Md.App.1996) (“A right to indemnification also may arise based on an express or implied contract or by operation of law.”). An implied right to indemnification may be based on the special nature of a contractual relationship between parties (implied in fact indemnity) or when there is a great disparity in the fault of two tortfeasors and one of the tortfeasors has paid for a loss that was primarily the responsibility of another (implied in law indemnity). Hanscome v. Perry, 542 A.2d 421, 426 (Md.App.1988).

 

East Coast concedes that it cannot show indemnity by virtue of an express indemnification agreement. A close examination of East Coast’s pleadings does not support a claim for indemnity implied in fact or in law.

 

East Coast argues that the bill of lading and consignor/carrier relationship between it and Pritchard along with the representations alleged to have been made by Pritchard in connection with the transportation of the generator set establishes a special relationship between the parties as to entitle East Coast to indemnity implied in fact. However, East Coast must plead more than just an underlying agreement between the parties—it must also plead facts from which it may be plausibly inferred that an indemnitor/indemnitee relationship was intended between the parties or that the special relationship indicates that Pritchard would bear ultimate responsibility for any and all damages to the generator and its enclosure during transport. Here, East Coast can point to no facts that demonstrate intent on the part Pritchard to assume responsibility in the event of East Coast’s liability. See Terry’s Floor Fashions, Inc. v. Georgia–Pac. Corp., 1998 WL 1107771 (E.D.N.C. July 23, 1998) (“In such a situation, the right to indemnity arises from the relationship between the parties and the circumstances of the parties’ conduct, and the essence of such a claim is the intent of the parties to create an indemnitor/indemnitee relationship.”); McDonald v. Scarboro, 370 S.E.2d 680, 686 (N.C.App.1988) (finding indemnity implied in fact based on testimony that another defendant had orally agreed to provide the party with an attorney in the event it was sued by plaintiff for breach of contract). East Coast attempts to rely on layers of inferences and implications that simply do not plausibly establish that Pritchard intended to indemnify East Coast. The fact that East Coast may or may not have represented that it was disclaiming liability for the return transport is irrelevant as such a fact does not plausibly suggest an implied in fact right to indemnification.

 

*4 East Coast’s pleadings essentially tell a story of “it was him, not me,” in regards to the proximate cause of the damage to the generator set. Although in its proposed amended pleadings East Coast replaces the phrase “the sole and proximate cause of plaintiff’s damages was the negligence of Pritchard” with “a proximate cause of plaintiff’s damages …,” it is clear from the context supplied by the rest of the pleadings that East Coast is actually claiming that they are wholly innocent of causing any damage whatsoever and but for Pritchard’s negligent construction and loading of the package there would be no damage. In essence, East Coast is attempting to transform what would be a complete defense to liability to Poole’s action against it into a third-party claim against Pritchard. Although the Carmack Amendment muddies the picture somewhat, it does not open the door to an indemnity claim here. As East Coast cannot bring a plausible claim of indemnity against Pritchard, Pritchard’s motion to dismiss is granted and East Coast’s motion to amend the indemnity claim is denied as futile.

 

CONCLUSION

For the foregoing reasons, East Coast’s motion for leave to file amended complaint is GRANTED IN PART and DENIED IN PART. The motion is granted except as to East Coast’s twenty-second defense which was previously dismissed by the Court, and East Coast’s twenty-third and twenty-fourth defenses which are dismissed by this order. Pritchard’s motion to dismiss the claim of indemnity is GRANTED. Pritchard is appropriately ADDED as a party pursuant to East Coast’s twenty-fifth defense. The clerk is directed to file plaintiff’s third amended complaint as described.

 

SO ORDERED.