Kormylo, M.D. et al v. Forever Resorts, LLC et al, No. 3:2013cv00511 - Document 144 (S.D. Cal. 2015)
Court Description: ORDER Granting 132 Motion for Leave to File Amended and Consolidated Third- Party Complaint by Third-Party Plaintiffs Forever Resorts and Williams: Third- party defendants shall have 15 days to amend from the date of filling of this order. The co urt denies Neeley's current request for a six-month extension of the discovery deadline and the May 23, 2016 trial date, as well as his request for fees incurred as a result of this amendment. Signed by Judge Jeffrey T. Miller on 10/13/15. (dlg) (Main Document 144 replaced on 10/13/2015 per DJ chambers. NEF regenerated) (dlg).
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Kormylo, M.D. et al v. Forever Resorts, LLC et al Doc. 144 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 Case No.: 13cv511 JM(WVG) NICHOLAS KORMYLO, M.D.; KIMBERLY KORMYLO; and BRYCE KORMYLO, by and through his guardian ad litem KIMBERLY KORMYLO, ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED AND CONSOLIDATED THIRD-PARTY COMPLAINT BY THIRD-PARTY PLAINTIFFS FOREVER RESORTS AND WILLIAMS Plaintiffs, 14 15 v. 16 17 FOREVER RESORTS, LLC, dba CALVILLE BAY RESORT & MARINA; and KENNETH WILLIAMS, 18 Defendants. 19 22 FOREVER RESORTS, LLC, dba CALVILLE BAY RESORT & MARINA; and KENNETH WILLIAMS, Third-Party Plaintiffs, 23 v. 20 21 24 25 26 SCOTT PETERSON NEELEY, Third-Party Defendant. 27 28 1 13cv511 JM(WVG) Dockets.Justia.com 1 2 3 FOREVER RESORTS, LLC, dba CALVILLE BAY RESORT & MARINA; and KENNETH WILLIAMS, 4 5 6 7 8 9 10 11 12 13 Third-Party Plaintiffs, v. BOY SCOUTS OF AMERICA; BOY SCOUTS OF AMERICA SAN DIEGO-IMPERIAL COUNCIL; MARK ALLEN; ROBERT JAFEK; JAMES MICHAEL LEDAKIS; ROGER MCCLOSKEY; ERIC JONATHAN SANFORD; ROBERT SHUMWAY; DAVID TAYLOR; and CHRIS WADDELL, Third-Party Defendants. 14 15 16 Defendants/Third-Party Plaintiffs Forever Resorts, LLC and Kenneth Williams 17 (collectively “Forever Resorts”) filed a Motion for Leave to File Amended and 18 Consolidated Complaint (“Motion”) on August 25, 2015, seeking to amend and 19 consolidate the three third-party complaints against Scott Peterson Neeley (“Neeley”), the 20 Boy Scouts of America (“BSA”) and the Boy Scouts of America San Diego-Imperial 21 Council (“BSA-SD”) (collectively “the Boy Scouts”), and Mark Allen, Robert Jafek, 22 James Michael Ledakis, Roger McCloskey, Eric Jonathan Sanford, Robert Shumway, and 23 David Taylor (collectively, “the adult leaders”). On September 14, 2015, the Boy Scouts, 24 Neeley, and Plaintiffs Nicholas Kormylo (“Kormylo”), Kimberly Kormylo, and Bryce 25 Kormylo (collectively, “Plaintiffs”) filed their oppositions to Forever Resorts’ motion 26 (Doc. Nos. 137, 139 & 140), and the adult leaders filed a joinder to Boy Scout’s 27 opposition. (Doc. No. 138). On September 21, 2015, Forever Resorts filed its reply in 28 support of the motion. (Doc. No. 142). Pursuant to Local Rule 7.1(d)(1), the court finds 2 13cv511 JM(WVG) 1 the matters presented appropriate for resolution without oral argument. For the reasons 2 set forth below, the court grants Forever Resorts’ motion. BACKGROUND1 3 4 Case History 5 On March 5, 2013, Plaintiffs filed the initial complaint in this case. (Doc. No. 1). 6 According to the complaint, Kormylo and his son, Bryce, were on a Boy Scout outing at 7 Lake Mead, Nevada in July 2012, when Kormylo was run over and severely injured by 8 the propeller of a power boat driven by Kenneth Williams, who was an employee 9 of Forever Resorts, LLC. (Id. ¶¶ 10–47). At the time of the accident, the complaint 10 alleges, Kormylo was swimming in a triangular safe-swim zone he created by anchoring 11 his boat about 50 yards away from two houseboats that were secured to the shore. 12 (Id. ¶¶ 23–24, 31–34). The triangle formed by the boats was intended “to provide notice 13 to others that the area within the triangle was a designated swimming area.” (Id. ¶ 24). 14 Plaintiffs assert claims for (1) negligence and vicarious liability; (2) negligent 15 entrustment; (3) negligent hiring, supervision, instruction, and training; (4) loss 16 of consortium; and (5) negligent infliction of emotional distress. (Id. ¶¶ 48–90). 17 Plaintiffs allege that this court has diversity jurisdiction, as they are California residents, 18 Williams is a Nevada resident, Forever Resorts, LLC is an Arizona corporation, and the 19 amount in controversy exceeds $75,000. (Id. ¶¶ 2–7). 20 On August 2, 2013, Williams filed a third-party complaint against Neeley, alleging 21 that it was Neeley, rather than Williams, who ran over Kormylo. (Doc. No. 14-15). 22 Williams’s complaint against Neeley asserts claims for (1) equitable indemnity, 23 (2) comparative indemnity, and (3) declaratory judgment apportioning liability to Neeley. 24 (Id. ¶¶ 11–19). On September 16, 2013, Forever Resorts, LLC filed a separate third-party 25 complaint against Neeley, asserting the same claims and allegations Williams asserted 26 against Neeley. (Doc. No. 27). 27 28 1 The facts in this section are drawn from relevant complaints and, at this stage, are taken as true to the extent that they are well pleaded. 3 13cv511 JM(WVG) 1 2 History of the Relevant Third-Party Litigation On August 13, 2014, Williams and Forever Resorts filed another third-party 3 complaint, this time against BSA and BSA-SD, as well as against Mark Allen, William 4 Dale, Kelly Garton, Taylor Hetherington, Robert Jafek, James Ledakis, Roger 5 McCloskey, Eric Sanford, Robert Shumway, David Taylor, and Chris Waddell, who were 6 alleged to be the adult leaders of Boy Scouts of America Team 719 (“Team 719”), the 7 unit that organized the trip. (Doc. No. 51). 8 9 On August 25, 2014, Williams and Forever Resorts filed a first amended thirdparty complaint, correcting the name of one of the alleged adult leaders. (Doc. No. 58). 10 The amended complaint asserted claims for (1) equitable indemnity; (2) comparative 11 indemnity; and (3) declaratory judgment apportioning liability to the Boy Scouts and the 12 adult leaders of Team 719. 13 On September 19, 2014, the Boy Scouts moved to dismiss the claims against them 14 for failure to state a claim, and, separately, moved to strike the attorney-fee allegations 15 from the complaint. (Doc. Nos. 77 & 78). 16 On October 8, 2014, Mark Allen and Chris Waddell moved to be dismissed from 17 the case for lack of personal jurisdiction. (Doc. No. 89). On October 24, 2014, Forever 18 Resorts sought leave to amend the first amended third-party complaint to add a claim 19 for contractual indemnity against David Taylor and James Michael Ledakis. (Doc. No. 20 92). On November 5, 2014, the court denied, without prejudice, Forever Resorts’ motion 21 for leave to file a second amended third-party complaint. (Doc. No. 95). At the time, 22 three motions were pending regarding the first amended third-party complaint, and the 23 proposed amendment was unrelated to the pending motions. 24 On January 6, 2015, the court ruled on the motions challenging the first amended 25 third-party complaint. (Doc. No. 102). The court granted the Boy Scouts’ motion to 26 dismiss the claims against them, but also granted Forever Resorts leave to amend the 27 relevant allegations. (Id. at 6–14). The court denied the motion to dismiss Mark Allen 28 for lack of personal jurisdiction, as he had only recently moved out of state, but granted 4 13cv511 JM(WVG) 1 the motion as to Chris Waddell, as he was a resident of Peru and was not present on the 2 day of the accident. (Id. at 14–24). 3 On January 20, 2015, Forever Resorts filed the second amended third-party 4 complaint, asserting claims for (1) comparative indemnity against BSA, BSA-SD, and the 5 adult leaders; (2) contractual indemnity against Robert Jafek, James Ledakis, Eric 6 Sanford, and David Taylor; and (3) declaratory judgment apportioning liability to BSA, 7 BSA-SD, and the adult leaders. (Doc. No. 107). 8 On February 3, 2015, the Boy Scouts and the adult leaders separately moved to 9 dismiss the claims against them. (Doc. No. 112 & 113). On April 28, 2015, the court 10 denied the motion to dismiss the comparative indemnity and declaratory judgment claims 11 premised on BSA and BSA-SD’s vicarious liability, but granted the motion, without 12 leave to amend, to the extent that they were premised on BSA and BSA-SD’s direct 13 negligence. (Doc. No. 121). With respect to the claims against the adult leaders, the 14 court denied the motion to dismiss the comparative indemnity and declaratory judgment 15 claims against Mark Allen, William Dale, Kelly Garton, Taylor Hetherington, Robert 16 Jafek, James Ledakis, Roger McCloskey, Eric Sanford, Robert Shumway, and David 17 Taylor, but granted the contractual indemnity claim without leave to amend. (Doc. No. 18 121). On May 12, 2015, the Boy Scouts and the adult leaders filed their answers to 19 Forever Resorts’ second amended third-party complaint. (Doc. Nos. 123 & 124). 20 On July 6, 2015, third-party litigants filed joint motions to dismiss Taylor 21 Hetherington, William Dale, and Kelly Garton without prejudice. (Doc. Nos. 128 & 128- 22 1). The court granted the motions on July 8, 2015. (Doc. No. 129). 23 Instant Motion 24 In this motion, Forever Resorts seeks leave to amend and consolidate the three 25 third-party complaints against Neeley, the Boy Scouts, and the adult leaders. As set forth 26 in its proposed consolidated third-party complaint (Motion, Exh. 1), Forever Resorts 27 seeks to amend the scope of its agency claims by including the following allegations: 28 (1) the adult leaders were approved registered adults with the Boy Scouts; (2) David 5 13cv511 JM(WVG) 1 Taylor, Neeley, Mark Allen, and Roger McCloskey were approved unit leaders for BSA 2 Varsity Team 719; and (3) Neeley was acting as an agent for the Boy Scouts during his 3 operation of the boat. Motion, p. 1. 4 Forever Resorts submits leave to amend and consolidate is warranted because of 5 newly acquired and previously unavailable information regarding the scope of the agency 6 relationship between the adult leaders, Neeley, and the Boy Scouts and further contends 7 that granting leave will not prejudice any of the parties, as the “substantive allegations 8 remain the same.” Forever Resorts does not seek to reopen discovery or extend the May 9 23, 2016 trial date. Motion, pp. 5, 8; Reply, p. 9. 10 The Boy Scouts, joined by the adult leaders, oppose the motion, arguing that 11 Forever Resorts is attempting to add an entirely new and different theory of liability – 12 Boy Scouts’ potential vicarious liability for the manner in which Neeley operated his boat 13 – after both the cutoff date for the amendment of pleadings and the discovery deadline.2 14 Boy Scout’s Opposition, p. 9. Allowing Forever Resorts to add a new claim so late in the 15 case, they argue, will prejudice the Boy Scouts, the adult leaders, as well as the Plaintiffs 16 by forcing them to reopen fact discovery and extend the May 23, 2016 trial date. Id. at 17 10. Plaintiffs similarly argue that the prejudice from granting the leave to amend would 18 be substantial to Dr. Kormylo, who was “catastrophically injured,” lost his income and 19 quality of life, is battling cancer, currently in remission, and has a strong interest in the 20 timely resolution of his claim. Plaintiffs’ Opposition, p. 7. 21 DISCUSSION 22 23 Generally, courts may grant leave to amend whenever “justice so requires.” Fed. R. Civ. P. 15(a)(2). Prior to the cutoff date for the amendment of pleadings, requests 24 25 26 27 28 2 In the April 16, 2014 Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings (Doc. No. 42), the court set June 30, 2014 as the cutoff date for the amendment of pleadings. Although the court has subsequently issued amended scheduling orders in this case, no new cutoff date for the amendment of pleadings has been set. As for the discovery deadline, fact discovery concluded on September 18, 2015, pursuant to the court’s June 1, 2015 Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings. (Doc. No. 127). 6 13cv511 JM(WVG) 1 for leave to amend should be granted with “extreme liberality.” Moss v. U.S. Secret 2 Service, 572 F.3d 962, 972 (9th Cir. 2009). Courts consider factors such as undue delay, 3 prejudice to the opposing party, bad faith, and futility of amendment in determining 4 whether to grant leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962). 5 When a party seeks to amend a pleading after the cutoff date, however, the liberal 6 standard of Rule 15 no longer governs. See Johnson v. Mammoth Recreations, 975 F.2d 7 604, 607–08 (9th Cir. 1992). Instead, the moving party must satisfy the “good cause” 8 requirement of Rule 16(b)(4), which provides that “[a] schedule may be modified only 9 for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). 10 “Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of 11 the party seeking to interpose an amendment and the prejudice to the opposing party, 12 Rule 16(b)(4)'s ‘good cause’ standard primarily considers the diligence of the party 13 seeking the amendment. The district court may modify the pretrial schedule if it cannot 14 reasonably be met despite the diligence of the party seeking the extension.” Johnson, 975 15 F.2d at 609. Only after the moving party has demonstrated diligence under Rule 16(b)(4) 16 does the court apply the Rule 15 standard to determine whether the amendment is proper. 17 Id. at 608. 18 Rule 16(b)(4) “Good Cause” Standard 19 Here, Forever Resorts seeks leave to amend and consolidate after the amendment 20 cutoff date, triggering the “good cause” analysis of Rule 16(b)(4). Forever Resorts 21 argues that it meets the “diligence” showing of Rule 16, citing to a number of district 22 court cases, which hold that evidence obtained during discovery constitutes “good cause” 23 for granting leave to amend after the deadline. See Academy of Country Music v. ACM 24 Records, Inc., 2014 WL 2586859, *3 (C.D. Cal. June 10, 2014); Hood v. Hartford Life & 25 Acc. Ins. Co., 567 F. Supp. 2d 1221, 1225 (E.D. Cal. 2008). 26 Forever Resorts contends that while it has been in possession of information 27 regarding the adult leaders and Neeley’s status as scout volunteers for over a year, it only 28 learned of the scope of their agency relationship after engaging in voluminous discovery, 7 13cv511 JM(WVG) 1 which took place after the amendment cutoff date. Namely, Forever Resorts states that it 2 only obtained the relevant information underlying the agency relationship through the 3 following documents: (1) the Fed. R. Civ. P. 30(b)(6) deposition transcript of BSA-SD, 4 taken on July 21, 2015; (2) the deposition transcript of the former BSA-SD scout 5 executive Terry Trout, taken on July 28, 2015; (3) documents produced by BSA-SD on 6 July 17, 2015 and August 10, 2015; and (4) Neeley’s supplemental responses to Forever 7 Resorts’ request for production of documents on July 27, 2015. Through these 8 documents, Forever Resorts recognized the need to “clarify the allegation of agency 9 relationship between the adult leaders and Boy Scouts” (Motion, p. 5), and learned that 10 the Boy Scouts had “the right to control a much broader spectrum of registered activities, 11 including Neeley’s operation of a vessel during the trip” (Reply, p. 6). 12 The Boy Scouts counter, arguing that Forever Resorts became aware of Neeley’s 13 status as a scout volunteer as early as June 23, 2014, through a roster produced by the 14 Boy Scouts, which listed Neeley as an adult scout volunteer. Boy Scouts’ Opposition, 15 p. 4. Forever Resorts’ knowledge of this, the Boy Scouts argue, “clearly shows that 16 Forever Resorts had notice of [the] potential agency claim [between Neeley and the Boy 17 Scouts] for over a year.” Id. at p. 5. Therefore, Boy Scouts argue, Forever Resorts’ 18 failure to act on this information sooner constitutes carelessness, which is the opposite of 19 the “diligence” showing required by the Rule 16(b)(4) “good cause” standard.3 Id. 20 The court finds that Forever Resorts has satisfied the “good cause” requirement of 21 Rule 16(b)(4). While the Boy Scout’s point regarding Forever Resorts’ early knowledge 22 of Neeley’s status as a scout volunteer is well-taken, the court finds that Forever Resorts 23 acted diligently, on the whole, in consistently investigating the agency relationship 24 between Neeley and the Boy Scouts through extensive discovery, and seeking to amend 25 the complaint once it discovered facts supporting the agency claim. As represented by 26 Forever Resorts, it only learned of the Boy Scout’s right to control Neeley’s operation of 27 28 3 The adult leaders, Neeley, and the Plaintiffs raise substantially the same arguments regarding Forever Resort’s inability to satisfy the Rule 16(b)(4) “good cause” standard in their joinder and oppositions. 8 13cv511 JM(WVG) 1 a vessel through the discovery conducted in the summer of 2015, after which it promptly 2 but unsuccessfully sought to reach a stipulation with the third-party defendants for an 3 amendment. While Forever Resorts was on notice of a potential agency relationship 4 between Neeley and the Boy Scouts, the court does not conclude that Forever Resorts 5 was careless in not including this agency allegation it is original third-party complaint. 6 Thus, the court finds that Forever Resorts has satisfied the “good cause” standard of Rule 7 16(b)(4), and proceeds to the Rule 15 analysis. 8 Rule 15 Standard 9 Once the court finds that the moving party has satisfied the “good cause” 10 requirement of Rule 16(b)(4), the court must apply the Rule 15 standard to determine 11 whether the amendment is proper. Johnson, 975 F.2d at 608. The factors to be 12 considered include undue delay, prejudice to the opposing party, bad faith, and futility of 13 amendment. See Foman, 371 U.S. at 182. In Foman, the Supreme Court held that the 14 Court of Appeals erred in affirming the district court’s refusal to grant the plaintiff leave 15 to amend, when it dismissed his claim on the ground that it was barred by the statute of 16 frauds. Id. Foman appears to be particularly apt here as the plaintiff therein proffered an 17 “amendment [that] would have done no more than state an alternate theory of recovery.” 18 See id. For the reasons stated below, the court finds that granting leave to amend and 19 consolidate in this case is appropriate, as it will not result in undue delay or prejudice to 20 the opposing side.4 21 1. Undue Delay 22 While undue delay alone is generally not enough to support a denial of a motion 23 for leave to amend, it is one of the factors considered by courts in determining whether 24 the amendment is proper. Foman, 371 U.S. at 182. “[L]ate amendments to assert new 25 theories are not reviewed favorably when the facts and theory have been known to the 26 /// 27 28 4 No party has raised bad faith or futility of amendment in opposition to Forever Resorts’ motion. 9 13cv511 JM(WVG) 1 party seeking the amendment since the inception of the cause of action.” Acri v. Int’l 2 Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986). 3 The Boy Scouts’ “undue delay” argument is very similar to their lack of “good 4 cause” argument. They argue that undue delay has occurred in this case because Forever 5 Resorts has failed to act on the relevant information regarding Neeley’s status as a scout 6 volunteer for at least a year. Boy Scouts’ Opposition, p. 7. Neeley raises the same 7 argument, adding that Forever Resorts has provided “no relevant, viable explanation for 8 why they seek to amend the complaint over two years after they commenced the action.”5 9 Neeley’s Opposition, p. 14. 10 As already discussed, Forever Resorts obtained pertinent facts leading to the 11 formulation of an agency theory between Neeley and the Boy Scouts in the summer of 12 2015. In its reply, Forever Resorts explains that it was not allowed to conduct discovery 13 prior to the amendment cutoff date, and therefore, in its second amended third-party 14 complaint, it focused on the Boy Scouts’ “rules, regulations, and requirements during the 15 trip, as the basis for its vicarious liability allegations.” Reply, p. 5. Once it was allowed 16 to conduct discovery, Forever Resorts diligently addressed the issue and obtained 17 information regarding Boy Scouts’ scope of control over its member activities. Thus, the 18 court is not persuaded by the Boy Scouts’ argument that “the facts and theory” of an 19 agency relationship between the Boy Scouts and Neeley were known to Forever Resorts 20 “since the inception of the cause of action.” See Acri, 781 F.2d at 1398. While Forever 21 Resorts could have been more proactive in obtaining relevant information and 22 formulating all potential theories as early in this litigation as possible, it does not appear 23 that any delay has been significant, especially in light of the lack of prejudice to the other 24 parties involved, as discussed below. 25 /// 26 /// 27 28 5 The Plaintiffs’ argument is substantially the same. 10 13cv511 JM(WVG) 1 2 2. Prejudice Late-added claims which alter the nature of the litigation or require the opposing 3 side to develop a new course of defense weigh against granting leave to amend, since 4 doing so results in prejudice to the other parties involved. See Morongo Band of Mission 5 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). 6 a. Prejudice to the Boy Scouts 7 The Boy Scouts argue that his factor clearly weighs against granting Forever 8 Resorts leave to amend and consolidate at this juncture of the case. First, the Boy Scouts 9 argue that the theory that Neeley was an agent of the Boy Scouts is entirely new, since 10 the only claims for agency liability alleged in Forever Resorts’ second amended third- 11 party complaint are for the actions of the adult leaders, which specifically excluded 12 Neeley. Opposition, p. 9. Second, since the agency liability based on the adult leaders’ 13 alleged failure to follow safety procedures is distinct from the potential liability for 14 Neeley’s operation of the boat, Boy Scouts would be prejudiced if Forever Resorts was 15 granted leave to amend at this point in litigation. Id. The Boy Scouts contend that 16 Forever Resorts’ proposed amendment would require reopening fact discovery, re- 17 deposing witnesses, and extending the May 23, 2016 trial date. Id. at 9-10. Finally, the 18 Boy Scouts argue that this court has previously denied Forever Resorts’ request to amend 19 the pleadings, and should therefore do the same here. Id. at 10. 20 The court finds that the amendment at issue will not prejudice the Boy Scouts for 21 the following reasons. First, even though the theory that Neeley was an agent of the Boy 22 Scouts has not been previously alleged, the underlying theory of the case and the Boy 23 Scouts’ defense remain the same – the adult leaders, and now Neeley, were not their 24 agents. Second, the amendment will not result in surprise or hardship for the Boy Scouts, 25 since it has the knowledge and is in possession of information relating to its own rules, 26 polices, procedures, and regulations pertinent to the question of whether an agency 27 relationship existed between Neeley and the Boy Scouts. Third, while the Boy Scouts 28 argue that granting the leave to amend would require reopening fact discovery, and 11 13cv511 JM(WVG) 1 therefore, extending the trial date, they do not identify what new information, if any, 2 would be necessary for the Boy Scouts’ new defense strategy. It certainly cannot be 3 denied that Neeley’s conduct and role in this case have been discovered beyond the 4 beyond. In other words, all parties are girded for battle on Neeley’s involvement. 5 Finally, the court’s prior denial of Forever Resorts’ motion for leave to amend on 6 procedural grounds is not dispositive of the current motion.6 Therefore, the court finds 7 that the amendment will not prejudice the Boy Scouts.7 8 a. Prejudice to Neeley 9 Neeley similarly argues that granting leave to amend would result in prejudice to 10 him, and requests that in the event the court grants the motion, it should extend the 11 discovery deadline and the trial date by six months to allow Neeley time to revise his 12 litigation strategy and properly defend against the two new causes of actions asserted by 13 Forever Resorts.8 Neeley’s Opposition, p. 13-5. Neeley also requests that the court order 14 Forever Resorts to pay any costs incurred as a result of the delay caused by their 15 amendment. Id. 16 The court finds that Neeley will not be prejudiced by this amendment. As 17 correctly pointed out by Forever Resorts, the amendment adds no new claims against 18 Neeley. The allegations against Neeley are unchanged and are based solely on a 19 negligent operation of a boat. The proposed consolidated third-party complaint clearly 20 distinguishes the claim against Neeley from the claims against the adult leaders. 21 Paragraph 17 specifically excludes Neeley by defining the “Adult Leaders of BSA Team 22 23 6 24 25 26 27 28 On November 5, 2014, the court denied, without prejudice, Forever Resorts’ motion for leave to file a second amended third-party complaint. (Doc. No. 95). At the time, three motions were pending regarding the first amended third-party complaint, and the proposed amendment was unrelated to the pending motions. The court subsequently granted Forever Resorts leave to amend on January 6, 2015. (Doc. No. 102). 7 The adult leaders’ joinder did not identify what potential prejudice would result to the adult leaders specifically. Even so, the court finds that the amendment will not result in prejudice to the adult leaders, given that the proposed consolidated third-party complaint adds no new claims against them, but simply develops the previously alleged agency theory. 8 Neeley does not specify what the two new causes of action are. 12 13cv511 JM(WVG) 1 719" as “Third-Party Defendants Mark Allen, Robert Jafek, James Michael Ledakis, 2 Roger McCloskey, Eric Jonathan Sanford, Robert Shumway, [and] David Taylor.” (Doc. 3 No. 132-1). The consolidated third-party complaint also separates the allegations against 4 the adult leaders and Neeley: the claims regarding the adult leaders’ duties and breach are 5 provided in paragraphs 35 and 36, while the claims regarding Neeley’s duties and breach 6 are provided in paragraphs 37 and 38. Id. Because there are no additional claims 7 asserted against Neeley, the court fails to see Neeley’s need to conduct additional 8 discovery or revise its defense strategy. Therefore, the court finds that the amendment 9 sought by Forever Resorts will not prejudice Neeley. 10 b. Prejudice to the Plaintiffs 11 Finally, Plaintiffs also argue, in very broad terms, that granting leave to amend will 12 prejudice Kormylo, given his health condition and his strong interest in the timely 13 resolution of his claim. Plaintiffs’ Opposition, p. 3. Based on the discussion above, the 14 court finds that granting leave to amend will not prejudice Kormylo because the 15 amendment will not result in the extension of the May 23, 2016 trial date. Given that the 16 only new claim added by the amendment is Neeley’s claimed status as an agent of the 17 Boy Scouts, a claim that the Boy Scouts should already be prepared to meet, any 18 additional discovery will be minimal and will not affect the trial date. 19 Thus, the court finds that the amendment will result in no prejudice to Kormylo. 20 CONCLUSION 21 The court grants Forever Resorts’ motion for leave to file the proffered amended 22 and consolidated third-party complaint (Doc. No. 132). Third-party defendants shall 23 have 15 days to amend from the date of filling of this order. The court instructs the 24 parties to schedule a conference before Magistrate Judge William V. Gallo for the sole 25 purpose of fashioning an abbreviated schedule for any limited discovery on the question 26 of agency. Finally, the court denies Neeley’s current request for a six-month extension of 27 /// 28 /// 13 13cv511 JM(WVG) 1 the discovery deadline and the May 23, 2016 trial date, as well as his request for fees 2 incurred as a result of this amendment. 3 IT IS SO ORDERED. 4 DATED: October 13, 2015 5 6 JEFFREY T. MILLER United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 13cv511 JM(WVG)
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