HUTTON v. LIFT-ALL, INC. et al, No. 1:2014cv00888 - Document 193 (M.D.N.C. 2017)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 06/06/2017, that Plaintiff's Motion for Leave to Amend Amended Complaint After Deadline (Docket Entry 162 ) be DENIED. FURTHER that Plaintiff's Motion for Leave to Amend Amended Complaint (Docket Entry 161 ) be TERMINATED AS MOOT.(Taylor, Abby)
Download PDF
<![CDATA[
HUTTON v. LIFT-ALL, INC. et al Doc. 193 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DANA LEAH PUCKE,TT HUTTON, As Executrix of the Estate of ROBERT JAMES HUTTON, JR., Plaintiff, v H\DR {-TECH, Inc., et al., Defendants ) ) ) ) ) ) ) ) ) ) 1:14CV888 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE TUDGE This matter is before the Coutt upon Plaintiff D anaLeahPuckett Hutton, as Executrix of the Estate of RobettJames Hutton,Jr.'s Motion fot Leave to Amend Amended Complaint Q)ocket Entty 1,61) and Motion for Leave to Amend Amended Complaint After Deadline. pocket Entry 162.) These matters are rþe for disposition.l For the reasons stated below, the Coutt recommends that Plaintiffs Motion fot Leave to Amend Amended Compiaint After Deadline (Docket Entry 1,62) be denied and that Plaintiffs Motion fot Leave to Amend Amended Complaint Q)ocket Errt y 161) be terminated as moot. I. BACKGROUND On July 10,201.4, Plaintiff filed the odginal Complaint in Guilfotd County Superior Court alleging that Defendants Lift-All, Inc., Hyco International, Inc., Hydra-Tech, Inc. (hereinafter "Hydta-Tech"), ,\ltec Industries, Inc., and Cetified Electdcal Testing, Inc., were Plaintiffs Motion fot Leave to Amend Amended Complaint (Docket E try 161) is mooted by het Motion for Leave to Amend Amended Complaint After Deadline. (Docket Entry 1 It appears that 162.) Dockets.Justia.com negligent in causing the death of Robert James Hutton, Entry 2.) Mr. Hutton fell apptoximately residence during the course Jr. (See generalþ Complaint, Docket thirry-five feet while tdmming trees at a private of his employment. Qd.Íln 8-17.) The matter was removed to this Court pursuant to DefendantÁ.ltec Industries, Inc.'s petition fot removal filed on Octobet 23,201.4. Q)ocket Entry 1.) fter removal, Plaintiff moved fot leave to amend het complaint. (Docket Entties 14.) Plaintiffs motion was grnted, and Plaintiff fìled het First Amended Complaint on December 16, 201.4. (Docket Entries 1,7,1.8.) Plaintiffs First Amended Complaint temoved some Defendants, and added sevetal new parties and claims. The First Amended Complaint asserted a "Successot Liability" claim against Altec, Inc., Altec Industries, Inc., Altec, LLC, and Altec Nueco, "Altec Defendants.") (See Am. Compl. TIT 58-61, Docket Entry LLC (hereinafter 18.) The F'irst Amended Complaint also added negligence claims against thtee new patties: (1) Altec Defendants, (2) Hyco Intetnational, Inc., n/k/a ï{/ebet-Hydraulik, Inc., Hyco Canada ULC, n/k/a 'V7eber Hydtaulik Hyco Canada,Hyco Alabama,LLc,and (3) Superiot Aerial Equipment and Repair. @.ffi 62-68,86-98.) Finally, the FitstAmended Complaint added more claims against the Altec Defendants, Hydra-Tech, American Assurance Cotpotation ("hereinafter Amedcan Assutance"), andJerry Hudson. (1d.ffi36-57,69-85.) The claims resulted from Hydra-Tech's agreement to purchase products liability insutance v¡ith American ssurance Hydta-Tech. Qd. ^s patt of Altec, LLC's acquisition of 1[70.) Plaintiff sought to pierce the cotporate veil and hold Jerry Hudson, officet and sole shareholdet of Hydta-Tech, petsonally liable for selling Hydra-Tech while knowing, or having reason to know, that the insutance policy he acquired from American 2 Assurance would not cover Plaintiffs losses. (Id. against American Assurance under ll 40.) Furthet, Plaintiff asserted claims North Catolina's Unfait Claim Settlement Practices Act and its Unfair and Deceptive Trade Practices Act. (Id.nÍ|42-57.) Finally, Plaintiff asserted claims against Altec, Hydra-Tech, andJerry Hudson for Concealment of Insurance Policy and for Unfait and Deceptive Ttade Practices. Qd.nn 69-85.) ,\ccotding to one of Plaintiffs attorneys, on or about March 2, 201,6, the Altec Defendants served discovery upon Plaintiff which divulged the identities of fout individuals who served as officers andf or directors of Altec, Inc., Altec Industties, Inc., and Ametican Assurance. (Amiel J. Rossabi Aff I 8, Docket Entry 168.) Plaintiffs counsel reviewed the response ftom the ,{.ltec Defendants in June 2016. (Id, n 1,2.) Plaintiff s aftorney sent a Rule 30(bX6) draft notice of depositions for the four directors and offìcets to Altec Defendants on August 2,201,6. (Id. n M) The Altec Defendants, however, responded that they did not believe they could move forwatd with depositions until the Court: (1) ruled on Hydta-Tech's, and Mt. Hudson's, motions to dismiss, and Q) gave àî initial pte-ftial otdet. (Id.I1,5; see also Email Ex. D, Docket Entry 1,68 at 33.) Further, the Altec Defendants filed a Motion for a Protective Order from PlaintifPs deposition requests on August 31,,201.6 (Docket Entry 148), and the motion was granted on September 9,201.6. On Octobet 27,201,6, (fext Ordet dated 9/9/201,6.) a telephone conference call was held and the panies discussed the Individual Joint Rule 26(f) Reports. (Àzlinute Entty dated 1,0/27 /201,6.) Following the confetence cali, the Court immediately entered a Scheduling Order. pocket Entry 156.) The clerical summaq/ of the Otdet stated that "Plaintiff shall have until 11/03/201ó to pleadings." CM/ECF Docket Summary, Docket Entry 156.) However, the Court's (See J amend ofîtcial Order stated that "Plaintiff shall have until Novembe r 3, 2016 to seeþ. Ieaue of Coutt to amend pleadings." pocket Ent"y 156 at 4) (emphasis added). Finally, there was another cledcal summary stating that"Plaíntiffs Amended Pleadings due by 1.1./3/201.6." (CM/ECF Docket Summary dated 1,0/27 /201,6.) On November 3, 2016, Plaintiff filed a Second Amended Complaint without first seeking leave to amend. (Docket Entty 157.) The Second '\mended Complaint adds the four individual directors from Altec, Inc., ltec Industries, Inc., and American Assutance Defendants to Plaintiffs ptevious claims concerning: (1) The Unfair Claim Setdement Practices Act, Q) Unfair and Deceptive Ttade Practices, and (3) Fraudulent Concealment Insurance as Policy. (Jaa Second of Am. Compl., Docket Entry 157.) The Second '{.mended Complaint also mote cleady alleges that Amedcan Assurance is a "sham cotporation" meaflt to deny recovery to Plaintiff. (Id.1l12.) The ,{.ltec Defendants and Amedcan Assutance fìled responses in opposition to Plaintiffs second amended Complaint. (Docket Entries 159, 160.) Thereafter, Plaintiff filed het motions for leave to amend the amended Complaint. Entries 1,61,, pocket 162.) American Assurance has fìled a notice of its opposition to Plaintiffs Motion. (Docket Entry 166.) This notice references arguments that Amedcan ,\ssurance made in its eatliet Memotandum in Opposition to Plaintiffs Second Amended Complaint. (Docket Entry 160.) Further, the Altec Defendants have filed an opposition btief to Plaintiffs Motion fot Leave to Amend Amended Complaint Aftet Deadline. (Docket Entry 167.) II. DISCUSSION Plaintiff seeks to amend her First ,A.mended Complaint "in light of infotmation that has been gatheted thtough discovery, despite the Defendant's best efforts to thwart Plaintiff 4 from obtaining additional informatfon." Q)ocket Entry 1,69 at 5.) Plaintiff contends that she was sufficiently diligent in attempting to meet the Coutt's Novembet 3,2016, deadline and in attempting to discover evidence befote said deadline. (d. at 6-7 .) A party who requests leave to amend after a deadline set by a coutt's scheduling ordet must meet "two ptetequisites" within the Federal Rules of Civil Ptocedure. Forstmann u. Caþ,114 F.R.D. 83, 85 (À4.D.N.C. 1,987). The paty must show that (1) thete is good Rule 16þ)(4) "to the coutt's satisfaction," cause to modift the scheduling ordet undet and (2) the amendment is propet under Rule 15(a)Q). Id.; see al¡o I\doarison Røg Corp. u, Parvi{an,535 F.3d. 295, 298 (4th Cit. 2008) ("Given their heavy case loads, district courts tequite the effective case mangement tools provided by Rule 16. Therefore, after the deadlines ptovided by a s'cheduling ordet have passed, the good cuse standard must be satisfied to justi$r leave to amend the pleaclings."). This Court has held that good cause under Rule 16þ) may be shown when "the 'plaintiff uncoveted previously unknown facts during discovery that would support additional cause of action'ot if an . . . despite the'exercise of reasonable diligence,'the evidence supporting the ptoposed amendment would not have been discoveted until aftet the amendment deadline had passed." Belcher u. W.C. English, Inc., 125 F.Supp.3d 544, 549 (À{.D.N.C. 201,5) (quoting Cole a. Princþi,2004WL878259, at x7 (À4.D.N.C. Apr.22,200a)); see also Interstate Narrow Fabrin,Inc., u. Centøry USA,Inc.,21,B F.R.D. 455,460 (I\4.D.N.C. 2003) (quoting Stadio Framet Ltd. u. Vilkge Ins. Agenry,1ørr, No. 1:01CV876,2003 !ØL 1785802, atx2 (À4.D.N.C. 2003) )("'Good cause' under Rule 16þ) exists when evidence supporting the proposed amendment would not have been discoveted 'in the exercise of reasonable diligence' until aftet the amendment deadline had passed."); Noarison Røg Corþ., 535 F.3d 5 ^t 297 (sustaining the district court's application of Rule 16þ) and its conclusion that "[t]here is no indication that any of the facts . . . came into fdefendant's] possession after his original answer was filed, and there is certainly no indication that he learned of these facts after the scheduling order deadline fot amendments to the pleadings"). Additionally, this Court has held that "'þ]ood cause is not shown when the amendment could have been timely made."' Interstate Nanow Fabrics,218 F.R.D. at 460 (quoting Auentis Cropsdenæ N.V. u. Pioneer Hì-Bred Int'/, Inc., No. 1:00CV00463, 2002 WL 3"1.833866, (À{.D.N.C. Dec. 1,2,2002)). Further, this Court has recently held that "fw]hether ^ at *2 p^rty c n satisfy Rule 16þ)'s 'good cause' requirement centers primariþ on "the diligence of the paîty seeking the amendment." Sffird u. Bames,191 F.Supp.3d 504, 507 (X4.D.N.C. 2016) (citation omitted). Factually analogous cases from this Court and other d-isuict corlrts are instructive as to what constitutes diligence ftom a movant, such as Plaintiff, who seeks to amend a complaint to add facts and patties after a scheduling otdet deadline. F.R.D. ^t 460 (denying a motion amendments provided to amend, this in the Rule 26(f) report See Interstøte l\arow Cout found that "[t]he Fabrics, 21.8 deadline for was July 31,, 2002. Therefore, evidence supporting Century's proposed amendments was avallal¡le to Century before expkation of the amendment deadline"); Colambia Ca¡ Transmision, IJ-C, No. 3:14-11,854, 201,5 WL 7871,048, at x2 (unpublished) ("Columbia Gas has failed to satisfy 16þ)'s good cause requirement . . because the factual allegations . . . were . known or should have been known by Columbia Gas well before the tecent 30(bX6) depositions."); IØonøsøe u. UniuersiEt of Maryland Alamni AÍs'n, 295 F'.R.D. 104,108 (D. Md. 2013) (unpublished) (denying plaintiffs motion to amend, in 6 patt, because plaintiff "had amassed a number of documents" giving her "petsonal knowledge" of the televant facts supporting het motion to amend befote the deadline); Soroof Trading Deuelopnent Co., Ltd. u. GE, Microgen, Inc., 283 F'.R.D. 142, L48-49 (S.D.N.Y. 201,2) (granting a motion to amend after deadltne, because the movant acted diligently in moving to amend one month aftet discovering the facts supporting the amendment and because the facts that the movnt added in the second amended complaint were "both more varied and more detailed than those included in the odginal complaint. Fot example, the proposed second amended complaint alleges that GEFCS and GE Microgen were undetcapitahzed."). In the instant case, Plaintiff has not demonstrated the tequisite diligence to satisfy the good cause standard for three reasons. First, Plaintiffs motion for leave to amend "could have been timely made." Iruterstate Narrow Fabrics,218 F.R.D . ^t 460. Plaintiff admits that she did not review this Court's Otdet on October 27,2016, "as catefully as it should have been." @ocket E.ttty 1.62 at 7.) As a result, Plaintiff filed a Second Amended Complaint November 3, 2016, without on fkst seeking leave to amend. (Docket Entry 157.) Ary misundetstanding based upon the CM/ECF clerical summaries is not sufficient to satis$r the good cause standard as there was an actual Order from the Court which Plaintiff received. Had Plaintiff teviewed the Otder more carefully, Plaintiff could have moved to rcek leaae on Novembet 3,201,6, and thetefote, complied with the deadline set by the Scheduling Otder. Plaintiff can offet no other reasorr fot her failure to move to seek leave within the deadline set by the Scheduling Otder other than neglect, and neglect cannot satis$r the good requitement of Rule 16&X4). See 5ffird,191 F.Supp .3d at 507 . 7 cuse Second, Plaintiff cannot demonstrate that the evidence supporting het motion "would not have been discovered until after the amendment deadline passed." Belcher,125 F.Supp.3d ^t 549. Plaintiffs motion sserts that she is seeking to file an amendment "in the form of the Second Amended Complaint filed at 8.) with the Cout on November 3, 201.6." (Docket Entry 1,62 Further, Plaintiff incorporates the facts set out in the Novembet 3, 201.6, Second Amended Complaint to "detailfl" how "finding information about Amedcan Assurance online is extremely difficult. Amedcan Assutance has virtually no pteserìce." (Id. at ó.) By teþing on the facts known as late as March 201.6, that"form[ed] the basis for the allegations contained within the Second Amended Complaint," Plaintiff admits that it could have supponed a timely motion fot leave to amend with the evidence that it gathered befote the deadline. (Id. at 7 .) Therefote, even though the facts contained in the Second Amended Complaint may be "more vaded and more detailed than those included in" Plaintiffs Fitst Amended Complaint, Soroof TradingDeuelopment,283 F.R.D 1,49,Plarn:iLff had "personal knowledge" of those facts before the amendment deadline, and those facts could have been included in a timeiy motion to seek leave to amend. IYonarue,295 F.R.D. at 108; ¡ee ølso Colønbia CasTran¡nixion, No. 3:14-11,854, 2015 ìØL 7871048, at*2; Inter¡tate Narrow Fabrìc¡218 F.R.D. at 460. Finally, Plaintiff cannot demonsttate good cause to amend the First Amended Complaint to add the four individual ditectots and officets of Altec, Inc., Altec Industries, Inc., and American Assurance. Plaintiff had "petsonal knowledge" of the identities of the individual clirectors well befote the amendment deadline of Novembet 3, 201,6. As Plaintiffs attorney admits in an afftdavit filed with the Coutt, the Altec Defendants served Plaintiffs counsel with discovery that divulged the names of these officets and clirectors in March 201,6. 8 (R-ossabi Aff. I 8.) Further, Plaintjffs counsel reviewed these documents in June 2016 and learned of the identities of the officers for the first time. (Id. 1112.) Given that Plaintiff knew of these officers and rlirectors before the amendment deadline, Plaintiff cannot demonsttate good cause for moving to add them now. Thus, Plaintiffs motion should be denied. Since Plaintiff cannot demonstrate good cause fot granting her motion, the Court need not address Rule 15(a)Q). See Colambia Ga¡ Transmissioø No. 3:1.4-11854,2015 lØL 7871.048, at x2 (unpublished) (ending its analysis of plaintiffs motion fot leave to file an amended complaint aftet determining that plaintiff did not demonstrate good cause); Haþern u. IWake Fore¡t Uniuersìry Healtlt Sciences,268 F.R.D. 264, 274 M.D.N.C. 2010) (ending its analysis of whether Plaintiff could amend its complaint aftet determinin g that there was a lack of good cause); Inter¡lale Narow Fabric¡ Inc., 21,8 F.R.D. cause' under Rule ^t 460 ("[Defendant] has not shown 'good 16þ), and it is consequently not necessary to consider whethet [defendant] can meet the mote lenient Rule 15(a) standatd."). III. CONCLUSION Fot the reasons stated herein, IT IS HEREBY RECOMMENDED that Plaintiffs Motion fot Leave to Amend Amended Complaint ,\ftet Deadline Q)ocket Entry L62) be DENIED. IT IS FURTHER RECOMMENDED that Plaintifls Motion fot Leave to,{.mend Amended Complaint (Docket Entry 161) be TERMINATED AS MOOT. L S(,'eùcter Stttes lrf4girtmt* Judge June 6,2017 Dutham, North Carohna 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
