Barcelona Equipment, Inc. v. David Boland, Inc. et al

Filing 772

ORDER AND REASONS: ORDERED that Written Objection to Minute Order and Order and Reasons of Magistrate Denying Motion for Leave of Target Construction, Inc. #755 is OVERRULED and the Court affirms the decision of the Magistrate Judge as it is not clearly erroneous or contrary to law.Signed by Judge Stanwood R. Duval, Jr on 10/16/2014. (Reference: 11-2295)(my)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA, for the use
and benefit of BARCELONA EQUIPMENT, INC.
VERSUS

NO. 11-2183
C/W 11-2295
C/W 12-0838

DAVID BOLAND, INC., INC., ET AL.
Re:

CIVIL ACTION

SECTION “K”(5)

Target Construction, Inc. v. Bauer-Pileco, Inc.
C.A. NO. 11-2295
ORDER AND REASONS
Before the Court is a Written Objection to Minute Order and Order and Reasons of

Magistrate Denying Motion for Leave of Target Construction, Inc. (Doc. 755) filed by Target
Construction, Inc. ("Target"). Target sought leave to file a second supplemental and amended
complaint which motion was heard on August 13, 2014. The motion was denied by Magistrate
Judge Michael North who then issued written reasons on August 15, 2014. (Doc. 721). Target
has filed the instant motion pursuant to Fed. R. Civ. P. 72(a).

As this motion seeks something

of a non-dispositive nature, the court "must consider this timely objection and set aside any part
of the order that is clearly erroneous or is contrary to law." Id.
The factual background of this case has been set forth in a number of previous rulings
and does not bear repeating extensively. Target was a subcontractor for David Boland, Inc. who
was the prime contractor on a number of construction projects undertaken by the United States
Army Corps of Engineers. On the Lakefront Airport Project, that is the subject of this particular
lawsuit, Target contracted with defendant Bauer-Pileco, Inc. ("Bauer-Pileco") for the use of a
sheet pile driving machine for use in that undertaking. Target alleges that because that
equipment did not function properly and at the production rates expected, Target was required to

obtain alternate equipment and accelerate its work resulting in cost overruns and other damages.
Target has sued Bauer-Pileco in this suit for, inter alia, breach of contract, intentional and/or
negligent misrepresentation and detrimental reliance. Target previously was granted leave on
September 25, 2012 to name as additional defendants Old Republic and Alliant on theories of
breach of contract, indemnity, and related claims. (Doc. 138).
In the instant motion, Target seeks to fold into this lawsuit an indemnity claim arising out
of a separate Corps of Engineers construction project–that being on the Cross Bayou Drainage
Structure–Phase 2. Lakeshore Engineering Services, Inc. on June 29, 2011, filed a Demand for
Arbitration with the American Arbitration Association ("AAA") against Target alleging damages
related to Target's allegedly deficient performance on the Cross Bayou Drainage project. On
October 15, 2013, the arbitrator issued a final award finding Target was liable to Lakeshore in an
amount in excess of $2.5 million. That arbitration was the subject of a cause of action,
Lakeshore Engineering Service, Inc. v. Target Construction, Inc., 13-cv-14498 (E.D.Mich. Oct.
25, 2013) and was confirmed in that proceeding. At no time during its pendency did Target
implead, propound a demand upon or provide notice to Bauer-Pileco that Target would later seek
indemnity from Bauer-Pileco with respect to the Cross-Bayou Drainage project.
Initially, the subject case was set for trial on November 3, 2014. The applicable
scheduling order set a deadline of February 17, 2014 to amend pleadings. In the ensuing four
months, Target did not seek to add the Cross-Bayou claim to this case. This case was continued
on April 16, 2014, after the first amendment cut-off had expired, with a new trial date being set
on March 16, 2015, resulting in a new cut-off for amendments of June 19, 2014. Target did not
move to amend to add the Cross-Bayou claim until that date.

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It is clear that while Fed. R. Civ. P. 15(a) "evinces a bias in favor of granting leave to
amend," if there are a substantial reasons such as "undue delay" or "undue prejudice" to the
opposing party, then the discretion of the court is broad enough to deny a motion to amend. See
generally Martin's Herend Imports, Inc. v. Diamond & Gem Trading Unite States of America
Company, 195 F.3d at 765, 770 (5th Cir. 1999). Indeed, a district court must possess a
"substantial reason" to deny a request for leave to amend. Smith v. EMC Corp., 393 F.3d 590,
595 (5th Cir. 2004). In examining that standard in Smith, the Fifth Circuit noted that "'a
defendant is prejudiced if an added claim would require the defendant "to reopen discovery and
prepare a defense for a claim different from the [one] . . . that was before the court.'" Id. citing
Duggins v. Steak 'N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999). Moreover, as noted in
Atrium Companies, Inc. v. ESR Associates, Inc., 2012 WL 4215103 (S.D. Tex. Sept. 18, 2012),
"the Fifth Circuit has stated that, even when a request to amend is filed within the prescribed
deadline, it may still be' 'untimely' in light of the procedural history and posture of the case'"
where the plaintiff's proposed amendments "pleaded a fundamentally different case with new
causes of action and different parties." Such an amendment is viewed as one which
fundamentally alters the nature of the case and thus may warrant denial. Id. citing Mayeaux v.
Louisiana Health Service and Indemnity Co., 376 F.3d 420, 427 (5th Cir. 2004).
The amendment at issue herein concerns a matter that has not been the subject of
discovery in this matter and indeed had not ever been raised as to Bauer-Pileco in a meaningful
way until this last minute attempt. It concerns a project that is not the subject of this suit. It is
distinct from it. The issues in this case–that is a dispute over whether a certain pile-driver was fit
for the Lakefront Airport Project–has been the subject of discovery and focus of this case. To

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enlarge the issues to include another project for which Bauer-Pileco had not been legally sought
to be held liable at this late date is unduly prejudicial and will not be allowed. Moreover, Target
has unduly delayed pleading this additional indemnity claim for the reasons explained by
Magistrate Judge North in his opinion. Accordingly,
IT IS ORDERED that Written Objection to Minute Order and Order and Reasons of
Magistrate Denying Motion for Leave of Target Construction, Inc. (Doc. 755) is OVERRULED
and the Court affirms the decision of the Magistrate Judge as it is not clearly erroneous or
contrary to law.
New Orleans, Louisiana, this 16th day of October, 2014.

STANWOOD R. DUVAL, JR.
UNITED STATES DISTRICT COURT JUDGE

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