Burkeen et al v. A.R.E. Accessories, LLC
Filing
74
MEMORANDUM OPINION & ORDER signed by Senior Judge Thomas B. Russell on 5/7/2019. Granting 67 Motion for Leave to Amend Complaint. cc: Counsel(KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:16-CV-17-TBR
DEANA BURKEEN, et al
PLAINTIFF
v.
A.R.E. ACCESSORIES, LLC,
GENERALL MOTORS, LLC
DEFENDANTS
MEMORANDUM OPINION & ORDER
This matter come before the Court upon Motion by the Plaintiffs, Deana Burkeen and
Timothy Burkeen, to Dismiss First Amended Complaint Without Prejudice and to Grant Leave to
File Second Amended Complaint (R. 67). Defendant, General Motors LLC (“GM”), has
responded, (R. 71), and the Burkeens have replied. (R. 72). Fully briefed, this matter is ripe for
adjudication and, for the following reasons, IT IS HEREBY ORDERED that Plaintiffs’ Motion
is GRANTED.
BACKGROUND
On January 12, 2015, while driving in Graves County, Kentucky, Deana Burkeen lost
control of Timothy Burkeen’s GMC pickup truck and collided with an oncoming car. During the
collision the truck-bed-cover, which was manufactured by A.R.E Accessories, LLC (“A.R.E.”),
came through the rear window of the truck and into the cab, allegedly injuring Ms. Burkeen. On
January 7, 2016, the Burkeens sued A.R.E. for negligence, strict products liability, and loss of
consortium for injuries sustained by Deana Burkeen. A.R.E. removed the case to federal court.
After removal, Judge Stivers set a December 1, 2016 deadline by which the Burkeens were
to have added any additional parties and filed any amended pleadings. The Burkeens amended
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their Complaint on October 19, 2016 to add GM as a party-defendant, alleging that Ms. Burkeen’s
head struck a protruding “D-Ring” inside the cab of the GMC pickup, causing her serious injury.
The Burkeens brought negligence, strict liability, and loss of consortium claims against GM for
the injuries caused by the protruding component. GM then filed a 12(b)(6) Motion to Dismiss on
November 15, 2016—two weeks prior to the amended pleadings deadline. GM also indicated that
it would have no objection to dismissal being granted with leave to amend. (R. 26). On July 26,
2017, holding that Plaintiffs’ Amended Complaint did not state sufficient facts to state a claim for
relief, Judge Stivers granted GM’s Motion and dismissed the Burkeens’ claims against GM with
prejudice. Judge Stivers gave no reason for dismissing the Brukeens’ claims against GM with
prejudice. On August 18, 2017, in response to Judge Stivers Opinion, the Burkeens filed a Rule
59(e) Motion to Alter Judgment, as well as a Motion for Leave to File a Second Amended
Complaint. Judge Stivers denied both motions.
On December 1, 2017, the Burkeens appealed, challenging the merits of the dismissal and
arguing that Judge Stivers abused his discretion in dismissing their claims with prejudice, instead
of granting them leave to amend their Complaint. Agreeing with Judge Stivers that the Complaint
lacked sufficient factual allegations upon which the Burkeens could recover, the Sixth Circuit
affirmed Judge Stivers’s dismissal on the merits. However, when confronted with Judge Stivers’s
lack of reasoning in dismissing the Burkeens’s claims with prejudice, the appellate pointed out:
The district court in this case did not provide any explanation for dismissing the complaint
with prejudice, as opposed to without prejudice. Instead, the district court foreclosed any
future possibility of amendment without indicating any reason to believe that amendment
would have been futile and without providing any other justifications for granting dismissal
with prejudice. When the district court granted the motion to dismiss, it did not cite any
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undue delay, bad faith . . . repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party . . . [or] futility of amendment.
(R. 62) (citations omitted). Consequently, the Sixth Circuit vacated Judge Stiver’s ruling
dismissing the Burkeens’ Complaint with prejudice and remanded the case to this Court to
“reconsider whether dismissal should have been without prejudice and whether Plaintiff’s should
be permitted to amend their Complaint.” In so doing the appellate court noted that “dismissal with
prejudice in this case goes against the well-established preference for allowing claims to be decided
on their merits where possible.”
In light of the Sixth Circuit’s ruling, the Burkeens now move the Court for leave to file a
Second Amended Complaint and declare the dismissal to be without prejudice. GM opposes the
Burkeens’ motion, arguing that Judge Stivers properly dismissed the Burkeens’ Complaint with
prejudice, and that their current proposed amendment is futile.
LEGAL STANDARD
Federal Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading
only with the opposing party's written consent or the court's leave.” The rule directs that the
“court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). This rule
gives effect to the principle that, as far as possible, cases should be determined on their merits
and not on technicalities. Cooper v. Am. Employers’ Ins. Co., 296 F.2d 303, 306 (6th Cir. 1961).
Denial of leave to amend may be appropriate “where there is 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 allowance of the amendment, futility
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of the amendment, etc.” Miller v. Champion Enters., Inc., 346 F.3d 660, 690 (6th Cir. 2003)
(citations and quotation omitted).
DISCUSSION
The Burkeens’ Motion presents the Court with only one issue: Should Judge Stivers’s
dismissal with prejudice stand, or should the Burkeens be permitted to amend their Complaint?
For a host of reasons, GM argues that Judge Stivers’s dismissal with prejudice should stand and
the Burkeens should not be granted leave to amend. First, relying on Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957 (8th Cir. 2015) and Begala v. PNC Bank, Ohio, Nat. Ass’n,
214 F.3d 776 (6th Cir. 2000), GM argues that Judge Stivers’s “July 26, 2017 Order should
remain in full force” because the Burkeens delayed seeking leave to amend their Complaint, and
GM would be prejudiced if they were permitted to do so now. (R. 71). Next, GM argues that the
Burkeens’ proposed Second Amended Complaint adds new substantive claims, which would
prejudice GM. GM also argues that the Burkeens’ Motion should be denied because the
Burkeens have “not offered a good cause explanation for their failure to seek amendment prior to
the entry of judgment.” (R. 71). Finally, GM argues that the Burkeens’ proposed Second
Amended Complaint should be denied as futile. None of GM’s arguments persuade the Court.
First, any delay pending the Sixth Circuit’s ruling cannot be accurately attributed to the
Burkeens. Such delay is a natural and inevitable part of litigation. To hold it against the Burkeens
would be improper. Sixth Circuit precedent is clear that “[o]rdinarily, delay alone, does not
justify denial of leave to amend.” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002).
Therefore, any such delay, while potentially relevant to the prejudice suffered by GM, cannot be
included in any calculation of undue delay attributable to the Burkeens. The only time relevant to
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deciding whether the Burkeens caused undue delay is the roughly nine months between GM’s
12(b)(6) motion, and the Burkeens’ post-judgment motion for leave to amended. With this is in
mind, the Court turns to GM’s reliance on Ash and Begala.
GM’s reliance on Ash and Begala is misguided. In Ash, after having their FLSA action
dismissed pursuant to Rule 12(b)(6), the plaintiffs moved to vacate the district court’s ruling and
requested leave to file an amended complaint. Ash, 799 F.3d at 960. The district court denied the
plaintiff’s motions. Id. The Eight Circuit affirmed the district court’s denial. Id. at 964.
While the circumstances here are undoubtedly similar to the those in Ash, the Court is
unpersuaded that it must come to the same conclusion as was reached in Ash. First, Ash comes
out of the Eighth Circuit—not the Sixth. As such, while Ash might be persuasive, it is not
controlling. Furthermore, the Eighth Circuit’s opinion in Ash is no ringing endorsement of the
district court’s decision to deny the plaintiffs’ leave to amend their complaint. Instead, it stands
as a reaffirmation of the trial court’s broad discretion in deciding whether to grant leave to
amend. In deciding Ash, the Eight Circuit noted that “[t]here can be little doubt that it would
have been within the district court’s discretion to grant Ash and Jewsome’s request for leave to
amend, just as it was within the court’s discretion to deny that request.” Id. at 957. The Ash Court
was also careful to include that “defending a Rule 12(b)(6) motion (presumably instead of
requesting leave to amend) is not a per se ground for dismissing a case, and that this court's
precedent does not stand for the denial of all post-judgment motions for leave to amend.” Id.
(quotations omitted). In short, the Eighth Circuit found that the trial court’s decision to deny the
plaintiffs leave to amend was on the spectrum of what would be considered the district court’s
proper discretion. It made no comment on where the trial court’s decision was located on that
spectrum. This Court agrees with the Burkeens that, while still within the parameters of its
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proper discretion, the district court’s denial was an outlier—and no example for this Court to
follow.
GM’s reliance on Begala, or more properly Begala II, is similarly misguided, but for
different reasons. Plaintiff, John Begala, filed his first lawsuit against PNC Bank, alleging that
PNC violated the Truth-in-Lending Act. Begala, 214 F.3d at 778. The District Court dismissed
Begala’s complaint pursuant to Rule 12(b)(6). Id. Begala appealed and lost. Id. However, while
the appeal was pending Begala again filed suit against PNC is in the same district Court,
bringing additional RICO and National Bank Act claims against PNC. Id. PNC moved to dismiss
the duplicative claims based on res judicata and argued that the RICO and National Bank Act
claims failed to state a claim upon which relief could be granted. In response, Begala amended
his complaint. PNC renewed their motion for dismissal raising the same arguments they had in
their original. The district court granted PNC’s motion to dismiss.
After the district court again dismissed Begala’s claims, Begala timely appealed and
sought clarification from the district court on whether he would be permitted to amend his
complaint. Id. Begala never made a motion for leave to amend the complaint, nor did Begala
provide the Court with a proposed amended complaint. Id. The district court denied Begala’s
motion for clarification. The Sixth Circuit upheld the all the district court’s rulings, including the
denial of Begala’s motion for clarification. Id. at 783-84.
Begala’s facts do not line up with those before the Court. First, the district Court was
facing duplicative litigation in Begala. This alone changes the circumstances drastically. But
most importantly, Begala never sought leave to amend the complaint that had been dismissed—
essentially for a second time—by the district court. Instead, Begala, without ever providing the
district court with a proposed amended complaint, or even asking for leave to file one, asked the
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court for clarification “apparently, to learn whether the [c]ourt would have granted the motions
to dismiss had Plaintiffs amended the complaint to add certain allegations.” Id. at 783 (6th Cir.
2000). The district court and the Sixth Circuit properly construed Begala’s motion for
clarification as what it was—a request for an advisory opinion on whether Begala should seek
leave to amend. Id. at 784. The Sixth Circuit subsequently affirmed the district court’s refusal to
provide Begala such an advisory opinion. Id. But contrary to GM’s suggestion, the Sixth Circuit
decidedly did not lay down precedent that would per se restrict a district court from allowing a
plaintiff to amend his complaint after a Rule 12(b)(6) dismissal. Furthermore, unlike Begala, the
Burkeens explicitly moved to amend their Complaint, providing their proposed Second Amended
Complaint to the Court for review—they did not ask the Court for what would amount to an
advisory opinion.
Next the Court moves to GM’s position that the Burkeens’ proposed Second Amended
Complaint seeks to add new substantive claims against GM. In making their argument GM
attempts to distinguish this case from Morse v. McWhorter, 290 F.3d 795 (6th Cir. 2002). They
have failed to do so. In fact, the Court finds Morse particularly instructive here.
In Morse, the district court dismissed the plaintiffs’ complaint and denied leave to amend
reasoning, just as GM reasons now, that:
The course of action the plaintiffs elected to follow was a strategic decision of their own
choice. It appears to have had about it a bit of the cat and mouse, i.e., let the Court first
sort out the deficiencies in the pleadings and after judgment then seek to amend to patch
up the matter and then attempt to close the rat holes. The plaintiffs had every opportunity
to amend during the pendency of this matter and must accept the consequences of their
delay.
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Morse, 290 F.3d at 798. While sympathizing with the district court’s frustration, the Sixth Circuit
nonetheless overturned the district court’s decision not to grant plaintiffs leave to amend their
complaint post-judgment. Id. at 800.
GM is correct that the Sixth Circuit noted that the Morse plaintiffs were not attempting to
add new substantive claims to their complaint, and that had they been, this might have changed
the court’s ruling. Id. at 801. But contrary to GM’s argument, neither are the Burkeens. Instead,
the Burkeens are attempting to flesh-out the claims of which GM had already been made aware.
As GM points out, “in their proposed Second Amended Complaint, Plaintiffs offer new facts
previously unannounced to GM or this Court.” (R. 71). New facts—not new substantive claims.
The two are not synonymous. The Burkeens’ First Amended Complaint contains claims against
GM for negligence and strict products liability but provides no factual basis for those claims. The
Burkeens’ proposed Second Amended Complaint includes only those same claims against GM
but fleshes them out factually by alleging that GM failed to cover a protruding “D-ring” inside
the cab of the truck with protective material, which violated GM’s duty to keep vehicle
occupants reasonably safe from severe head injury as prescribed by federal motor vehicle safety
standards, and that this failure caused Ms. Burkeen’s head injury. Under these circumstances,
adding these factual allegations does not constitute adding substantive claims against GM. Thus,
GM’s attempt to distinguish this case from Morse fails. In fact, the Court finds that Morse offers
guidance here, and suggests that the Burkeens’ Motion should be granted.
GM also claims that the Burkeens’ Motion should be denied because the Burkeens have
offered no explanation for their failure to seek leave to amend prior to the entry of judgment and
that the Burkeens are not entitled to sua sponte relief from this Court. (R. 71). First, the Burkeens
have offered explanation. GM indicated to the Burkeens that GM would have “no objection” to
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Judge Stivers dismissing the Burkeens’ complaint with leave to refile (R. 26). The Burkeens’
choice to wait and seek leave to amend after Stivers’s ruling was by no means the most prudent
course of action. But the Court can see how GM’s indication might have encouraged the
Burkeens to pursue such a course of action. As such, and contrary to GM’s argument, the Court
does not interpret the Burkeens to be seeking sua sponte relief from this court. Instead, they seek
leave to amend their complaint—which GM previously indicated they would not object to yet
does so now vigorously.
While the Court remains unpersuaded by GM’s various arguments detailed above, the
Court cannot dispute that there was an approximately nine-month delay from when the Burkeens
were put on notice that their complaint may lack sufficient factual allegations to when they filed
for leave to amend their complaint. But, while the Burkeens are undoubtedly responsible for the
relevant delay, they are not solely responsible. As discussed, GM indicated to the Burkeens that
they would have “no objection” to Judge Stivers dismissing the Burkeens’ complaint with leave
to refile (R. 26). However, as Judge Zouhary pointed out in his concurrence remanding this case,
GM never made any attempt to initiate communication with the Burkeens. (R. 62). Moreover, it
is entirely plausible that GM’s indication that they would not object to post-dismissal
amendment might have induced the Burkeens to rest on their laurels and await Judge Stivers’s
ruling before seeking leave to amend. The Court must also accept its own share of the
responsibility for the delay. As Judge Clay notes:
To be sure, moving for leave to file a second amended complaint after the filing of GM’s
motion to dismiss would have been the appropriate course of action for Plaintiffs to have
taken. However, the eight-month hiatus was as much a consequence of the district court’s
unexplained delay in ruling on the motion to dismiss as Plaintiffs’ shortcomings.
(R. 62). The Court is not comfortable refusing leave to amend based on a delay it shared
responsibility for causing.
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Furthermore, while the Court understands that allowing the Burkeens to amend their
complaint after a nine-month delay might have caused GM some prejudice, it is not convinced
that such prejudice would have been significant. Duggins v. Steak’'n Shake, Inc., 195 F.3d 828,
834 (6th Cir. 1999) (“To deny a motion to amend, a court must find ‘at least some significant
showing of prejudice to the opponent.’”) (quoting Moore v. City of Paducah, 790 F.2d 557, 562
(6th Cir. 1986)) (emphasis added). The Court is similarly unpersuaded that any time added to the
relevant delay by the Burkeens’ appeal so increased the prejudice suffered by GM so as to rise to
a degree that would prevent the case from now fairly and properly moving forward. Nor has GM
specifically demonstrated as much. The Court finds GM’s generic arguments concerning
witness’s fading memories and the like unconvincing. As the Burkeens point out, the accident
was well documented, and GM likely has records of the vehicle’s condition at sale. Finally,
nothing prevented GM from conducting investigation while the case was pending on appeal.
Ultimately, the Court is sympathetic to GM’s position. The Court cannot dispute that at
the time that Judge Stivers dismissed the Burkeens’ complaint with prejudice that there had been
some delay. The Court also understands that to have allowed the Burkeens to amend their
complaint would have caused GM some prejudice. That prejudice undoubtedly has, to some
extent, increased during the pendency of the Burkeens’ appeal. But as the Court has already
discussed, delay caused by appeal is a natural and unavoidable part of litigation. When the Court
weighs GM’s concerns against the well-established preference for allowing claims to be decided
on their merits, the Court finds that in the interests of justice the original dismissal should have
been without prejudice. Further, the Burkeens should not now be denied leave to amend based on
undue delay or prejudice suffered by GM. However, their remains to be addressed GM’s final
argument.
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GM’s final argument is that the Burkeens’ Motion should be denied as futile. Denial of
leave to amend may be appropriate if the amendment is determined to be futile. See Miller v.
Champion Enters., Inc., 346 F.3d 660, 690 (6th Cir. 2003). A motion to amend is deemed futile
if the proposed amendment “could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v.
Hartford Underwriters Ins. Co., 203 F.3d 417 (6th Cir. 2000) (citing Thiokol Corp. v. Dep’t of
Treasury, State of Mich., Revenue Div., 987 F.2d 376, 382-83 (6th Cir. 1993)). “When
considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the district court must accept all of the allegations in the complaint as true, and
construe the complaint liberally in favor of the plaintiff.” Lawrence v. Chancery Court of Tenn.,
188 F.3d 687, 691 (6th Cir. 1999) (citing Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995)). The
Court will consider only the complaint, which must include “only enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).
Here, comparing this case to Adkins v. Chevron Corp., 960 F. Supp. 2d 761, 772 (E.D.
Tenn. 2012), GM argues that the Burkeens have done nothing more in their proposed Second
Amended Complaint than to make “naked allegations” and “conclusory allegations,” which
cannot withstand a motion to dismiss. (R.71). The Court disagrees.
This case is not Adkins. Adkins concerned alleged injury caused by radioactive hazardous
material released by a nuclear fuel processing facility. The case largely hinged upon questions of
federal preemption. However, the court also held that the plaintiffs’ complaint could not
withstand a 12(b)(6) motion to dismiss where the plaintiffs merely made conclusory allegations
that the defendants violated federal regulations and statutes. GM claims that this is what the
Burkeens have done in their proposed Second Amended Complaint. It is not.
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The Burkeens’ Second Amended Complaint alleges that there was a protruding “D-ring”
located inside the cab of the GM vehicle. The Burkeens’ claim further that GM failed to cover
that protruding D-ring with protective padding material, and that failure breached GM’s duty to
afford head impact protection to vehicle occupants. Like the Adkins plaintiffs, the Burkeens
complaint includes a federal regulation, namely 49 C.F.R. § 571.201. However, unlike the
Adkins who merely listed federal regulations without explaining how the defendants violated
those regulations, or how the violations caused the plaintiffs’ injuries, the Burkeens specifically
claim GM’s failure to cover the protruding D-ring in protective material violated 49 C.F.R. §
571.201 and caused Ms. Burkeen’s head injuries. Whether GM in fact failed to comply with 49
C.F.R. § 571.201, or whether 49 C.F.R. § 571.201 even provides the relevant standard of care, is
an issue to be resolved at a latter stage of the proceedings. At this stage of the proceedings, and
taking all allegations against GM as true, the Court is not prepared to find the Burkeens’
proposed amendment futile. The Burkeens’ Motion is Granted.
CONCLUSION
IT IS SO ORDERED that the Burkeens’ Motion, (R. 67), is GRANTED.
The Clerk of Court is DIRECTED to file the Burkeens’ Amended Complaint attached to Docket
No. 67 as Exhibit B.
The Court shall file an order contemporaneously herewith setting a telephonic conference with the
Parties.
May 7, 2019
cc. counsel of record
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