Shew v. Custom Transportation LLC et al
MEMORANDUM OPINION AND ORDER GRANTING 16 MOTION to Amend/Correct Complaint. Plaintiff shall refile the proposed Amended Complaint no later than September 24, 2013. Signed by Judge Virginia Emerson Hopkins on 9/18/2013. (JLC)
2013 Sep-18 PM 12:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARCIA SHEW, as personal
representative of the Estate of
Martha G. Brightman,
JAMES LEE HILL and CUSTOM
) Case No.: 4:13-CV-420-VEH
MEMORANDUM OPINION AND ORDER
Before the court is a Motion to Amend filed by the Plaintiff, Marcia Shew
(“Ms. Shew”). Doc. 16. One of the Defendants, Custom Transportation, LLC
(“Custom”), has filed a responsive opposition. Doc. 17. For the following reasons,
Ms. Shew’s Motion is GRANTED.
Ms. Shew initiated this case on February 19, 2013, in the Circuit Court of
Etowah County, Alabama. Doc. 1-1. The Defendants, James Lee Hill (“Mr. Hill”) and
Custom, removed the case to this court on March 1, 2013. Doc. 1. Custom filed its
Answer (Doc. 4) on March 6, 2013, and Mr. Hill filed his Answer (Doc. 6) on March
12, 2013. Ms. Shew filed her original Motion to Amend on July 11, 2013. Doc. 14.
The court denied that Motion without prejudice (Doc. 15) for failing to comply with
Appendix III of the court’s Uniform Initial Order (Doc. 8). Ms. Shew then filed the
instant Motion on July 25, 2013. Doc. 16. Custom filed its responsive opposition on
July 31, 2013. Doc. 17. The scheduling order deadline for Ms. Shew to amend her
pleadings is November 1, 2013. Doc. 13 at 2. Her Motion is thus timely under the
scheduling order. Further, this is Ms. Shew’s first amendment, but she filed her
Motion more than 21 days after the Defendants filed their Answers. The Motion will
therefore be analyzed under Rule 15(a)(2) of the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 15.
Standard of Review
Under Rule 15(a)(2), “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)(2). The court
“should freely give leave when justice so requires.” Id. A court should deny leave,
however, in the presence of countervailing factors “such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of
the allowance of the amendment, futility of the amendment, etc . . .” McKinley v.
Kaplan, 177 F.3d 1253, 1258 (11th Cir. 1999) (quoting Foman v. Davis, 371 U.S.
178, 182 (1962)); accord Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1218 (11th
Cir. 2004) (explaining that, despite the “freely given” language of Rule 15(a), leave
to amend can be denied on grounds such as undue delay, prejudice, or futility)
(citation omitted); Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262-63 (11th Cir.
2004) (holding that a court may deny leave to amend if it is found that the proposed
amendment is futile) (citation omitted).
In her Motion, Ms. Shew seeks to amend her Complaint to add James R. Miles
(“Mr. Miles”) as a defendant. Doc. 16 at 1. According to Ms. Shew, Mr. Miles owned
the truck that killed Martha Genelle Brightman, of whose estate Ms. Shew is personal
representative. Id. ¶ 1. Ms. Shew’s proposed amendment adds Mr. Miles as a
defendant in this suit and alleges a cause of action against him for negligent
entrustment. Id. She justifies her belated addition of Mr. Miles as a party by
explaining that she did not learn he was the owner of the truck until Custom produced
certain unspecified documents in this action. Id. She further contends that Mr. Miles,
“as the owner of the vehicle, could be held liable for negligent entrustment if he had
knowledge that the driver was not qualified or impaired as a driver.” Id. ¶ 4.
In response, Custom argues that Mr. Miles’s inclusion is “improper” because,
while he admittedly owned the truck,1 he had leased it to Custom during the relevant
time period. Doc. 17 ¶ 1-2. Custom produces a written lease agreement showing that:
Mr. Miles leased the truck to it on May 1, 2007;
The agreement terms give exclusive possession, control, and use of the
truck to Custom; and
Under the agreement, Custom assumes complete responsibility for
operation and maintenance of the truck, as well as the responsibility to
maintain and pay for insurance coverage as required by law.
Id. ¶ 3; see also Doc. 17-1 at 1-2. Custom adds that Mr. Hill, who Ms. Shew alleges
was driving the truck in question at the time of the accident, “was hired and qualified
by and for Custom” and “drove under Custom’s placards and Department of
Transportation (“DOT”) authority at the time of the subject accident.” Doc. 17 ¶ 4.
Custom further argues that Ms. Shew has not shown an employment relationship
between Mr. Hill and Mr. Miles. Id. ¶ 5. According to Custom, Mr. Hill’s ownership
of the truck “is insufficient to create a presumption of vicarious liability, especially
in light of the terms of the aforementioned lease agreement.” Id.
Although Custom does not precisely characterize it as such, its objection to Ms.
Shew’s amendment is essentially based on the grounds of futility. To decide whether
Custom refers to the subject vehicle as a “tractor” throughout its response. The court will
adopt Ms. Shew’s preferred term – “truck” – for the purposes of resolving her Motion.
an amendment is futile, a court must determine whether, as amended, the complaint
would still be subject to dismissal for failure to state a claim. See, e.g., Burger King
Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999) (denial of leave to amend is
justified by futility when the “complaint as amended is still subject to dismissal”)
(quoting Halliburton & Assoc., Inc. v. Henderson, Few & Co., 774 F.2d 441, 444
(11th Cir. 1985)). “When a district court denies the plaintiff leave to amend due to
futility, the court is making the legal conclusion that the complaint, as amended,
would necessarily fail.” St. Charles Food, Inc. v. America’s Favorite Chicken Co.,
198 F.3d 815, 822 (11th Cir. 1999) (citations omitted).
Ms. Shew’s Proposed Amendment Is Not Futile.
The court does not find Ms. Shew’s proposed amendment to be futile. Nothing
in Alabama2 or federal law precludes a lessor like Mr. Miles from being held liable
for negligently entrusting his vehicle to an entity like Custom (or, by extension, any
of its employees). Under Alabama law, the “essential ingredients” of a cause of action
for negligent entrustment are: (1) an entrustment; (2) to an incompetent; (3) with
knowledge that he is incompetent; (4) proximate cause; and (5) damages. Edwards
As Ms. Shew is asserting “diversity” jurisdiction in this action, see Doc. 16-1 ¶¶ 1-5; 28
U.S.C. § 1332, Alabama substantive law will provide the rule of decision respecting her claims.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Manuel v. Convergys Corp., 430 F.3d
1132, 1139 (11th Cir. 2005) (“[A] federal court sitting in diversity will apply the choice of law
rules for the state in which it sits.”) (citation omitted). Neither party seemingly contests this fact.
Indeed, Ms. Shew cites Alabama law in her Amended Complaint. Doc. 16-1 at 4-6.
v. Valentine, 926 So. 2d 315, 320 (Ala. 2005) (quoting Halford v. Alamo Rent-A-Car,
LLC, 921 So. 2d 409, 412 (Ala. 2005)). Custom might be correct that Mr. Miles’s
mere ownership of the subject truck does not itself generate a presumption of
vicarious liability. It might also rightly observe that Ms. Shew has not offered
evidence of an employment relationship between Mr. Hill and Mr. Miles. But, Ms.
Shew does not argue either of these points in support of her amendment. As noted
above, she instead contends that Mr. Miles “could be held liable for negligent
entrustment if he had knowledge that the driver was not qualified or impaired as a
driver.” Doc. 16 ¶ 4. This is a plausible contention under the relevant law. See
Edwards, 926 So. 2d at 320 (“In Alabama, when one person drives a car belonging
to another, a rebuttable presumption of entrustment, i.e., that the car was being
operated by the driver with the permission of the owner, arises when ownership is
established . . .”) (quotation omitted) (emphasis in original).
Custom suggests that the leasing relationship between Mr. Miles and Custom
categorically prevents Mr. Miles from being liable in this action. It provides no legal
authority for this (implied) assertion, and the court is unable to find any. The court
is aware of the federal Graves Amendment, 49 U.S.C. § 30106, “a federal tort reform
statute which purports to shield rental car companies from certain vicarious liability
suits.” Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1244 (11th Cir.
2008). As the Eleventh Circuit has observed, the Amendment “has two operative
provisions, a preemption clause and a savings clause.” Id. at 1246. The “preemption
clause” provides as follows:
An owner of a motor vehicle that rents or leases the vehicle to a person (or an
affiliate of the owner) shall not be liable under the law of any State or political
subdivision thereof, by reason of being the owner of the vehicle (or an affiliate
of the owner), for harm to persons or property that results or arises out of the
use, operation, or possession of the vehicle during the period of the rental or
lease, if (1) the owner (or an affiliate of the owner) is engaged in the trade or
business of renting or leasing motor vehicles, and (2) there is no negligence or
criminal wrongdoing on the part of the owner (or an affiliate of the owner).
49 U.S.C. § 30106(a). By its own terms, then, this provision permits state law-based
negligence actions in scenarios such as the instant one.3 As with the actual arguments
Custom deploys, it also does not render Ms. Shew’s proposed amendment futile.
For the foregoing reasons, Ms. Shew’s Motion to Amend her Complaint is due
to be and is hereby GRANTED.
Due to CM/ECF requirements, Ms. Shew shall refile the proposed Amended
Complaint with the Clerk’s office no later than September 24, 2013.
DONE and ORDERED this the 18th day of September, 2013.
The court does not address whether Mr. Miles “is engaged in the trade or business of
renting or leasing motor vehicles.” Id.
VIRGINIA EMERSON HOPKINS
United States District Judge
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