Joseph et al v. Louisiana Department of Corrections et al

Filing 24

ORDER granting 19 Motion for Leave to File Second Supplemental and Amending Petition. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JERRY JOSEPH AND MERLINE JOSEPH

CIVIL ACTION

VERSUS

NO:

LOUISIANA DEPARTMENT OF
CORRECTIONS, ET AL

SECTION: “S” (4)

15-0759

ORDER
Before the Court is a Motion for Leave to File Second Supplemental and Amending
Petition (R. Doc. 19) filed by the Plaintiffs, Jerry Joseph and Merline Joseph. The Plaintiff’s
seek leave of court to file their Second Amended and Supplemental Petition to add Landmark
American Insurance Company as a Defendant. R. Doc. 10, p. 1. The motion is unopposed. The
motion was submitted on September 9, 2015, and heard without oral argument that day.
I.

Background
This action arises out of the death of Keith Joseph while he was in the custody of

Tangipahoa Parish Prison. See R. Doc. 1, at 5. Plaintiffs, decedent’s parents, allege that on
March 3, 2014, the decedent initially complained of severe chest pains to Defendant Officer
Brocks. Plaintiffs allege that on March 11, 2014, after a week of complaining of severe chest
pains, he was seen by the on-duty nurse, who took his vital signs and returned him to his cell. Id.
Once he returned to his cell, Plaintiffs contends that he continued to express his pain to Officer
Brock who responded by stating “Aint nothing wrong with you, sit your motherfu***** as*
down. Id. at 6.
Plaintiffs allege that shortly after this exchange, the decedent collapsed. Id. at 6. Plaintiffs
allege that the decedent was not administered cardiopulmonary resuscitation until thirty minutes
after he collapsed. Id. The decedent passed away that same day, March 11, 2014. Id.

The Plaintiffs initiated this suit on March 9, 2015, against the Louisiana Department of
Corrections, Officer Brock, Columbia Casualty Company, Sheriff Daniel Edwards, Schirra Finn,
Brandon Pinon, Tangipahoa Parish Sheriff’s Office, and Alison Thornhill.

Plaintiffs filed this action alleging that the Defendants violated the decedent’s rights
under the Fourth, Eighth, and Fourteenth Amendments to the Constitution of the United States
and subjected Keith to discrimination in violation of the Rehabilitation Act. Plaintiffs also allege
Louisiana state-law claims of negligence and wrongful death. The Plaintiffs seek compensatory
and nominal damages, as well as declaratory judgment under 42 U.S.C. §1983, Section 504 of
the Rehabilitation Act, 29 U.S.C. §794, and state law tort claims under Civil Code Articles 2315,
2315.1, and 2315.2. R. Doc. 1, p. 7.
On April 14, 2015, a Motion to Dismiss was filed on behalf of seven of the eight Defendants
arguing that (1) the Plaintiffs did not establish standing; (2) the Sheriff’s Office is not a proper party
and not the proper agent of prison medical services; (3) Defendants Pinon and Finn should be
dismissed; and (4) the Plaintiffs failed to state a claim under the Fourth Amendment, Equal
Protection Clause, and the Rehabilitation Act. See R. Doc. 7.
On August 13, 2015, the District Court granted the motion and dismissed Plaintiffs’ claims
against Prison Medical Services, Lt. Brandon Pinon, and Lt. Shirra Finn in their individual and
official capacities. The District Court also dismissed claims against all Defendants under the Fourth
Amendment to the Constitution of the United States, all defendants under the Equal Protection
Clause of the Fourteenth Amendment, and all defendants arising under the Rehabilitation Act. The
District Court also dismissed Plaintiffs’ claims against the State of Louisiana because of a lack of
subject matter jurisdiction. See R. Doc. 7.
In the instant motion, Plaintiffs seek to add Landmark American Insurance Company
(“Landmark”) as a Defendant. R. Doc 19, p. 1. Plaintiffs allege that Landmark is an insurer of the

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Defendants’ and provides applicable coverage for the instant causes of action and damages. R. Doc.
19, p. 1.

II.

Standard of Review
Federal Rules of Civil Procedure (“Rule”) 15(a), which governs the amendment of

pleadings, provides that leave to amend pleadings “shall be freely given when justice so
requires.” Rule 15(a)(2). This, and other federal rules, “reject the approach that pleading is a
game of skill in which one misstep by counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v.
Gibson, 355 U.S. 41, 48 (1957). Thus, Rule 15(a) evinces a liberal amendment policy and a
motion to amend should not be denied absent a substantial reason to do so. See Jacobsen v.
Osborne, 133 F.3d 315, 318 (5th Cir.1998). Permission may be granted even though the original
pleading is defective in its statement of a claim for relief or defense. Id.
Leave to amend is by no means automatic, but is within the sound discretion of the trial
court. Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir.1981). In
exercising its discretion, the trial court must determine that there is a “substantial reason” for the
delay. Mayeaux v. Louisiana Health Service and Indemnity Co., 376 F.3d 420, 425 (5th
Cir.2004). The Court may consider such factors as (1) undue delay, bad faith, or dilatory motive
on the part of the movant; (2) repeated failure to cure deficiencies by amendments previously
allowed; (3) undue prejudice to the opposing party by virtue of allowance of the amendment; and
(4) futility of the amendment. Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir.1981).
III.

Analysis
In determining whether or not granting leave to amend is proper, the Court analyzes the

Gregory v. Mitchell factors. The factors are: (1) undue delay, bad faith, or dilatory motive on the
part of the movant; (2) repeated failure to cure deficiencies by amendments previously allowed;
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(3) undue prejudice to the opposing party by virtue of allowance of the amendment; and (4)
futility of the amendment. Id.
A. Undue Delay, Bad Faith, Dilatory Motive of Movant
The first factor the court considers when determining whether or not to grant leave to
amend pursuant to 15(a) is whether the amendment will cause an undue delay, is in bad faith, or
that the movant has some dilatory motive in filing the motion.
The Fifth Circuit has indicated that “[a] litigant's failure to assert a claim as soon as he
could have is properly a factor to be considered in deciding whether to grant leave to amend.
Merely because a claim was not presented as promptly as possible, however, does not vest the
district court with authority to punish the litigant.” Carson v. Polley, 698 F.2d 562, 584 (5th
Cir.1982) (finding that delay of four months between time pro se attorneys were assigned to case
and time second amended complaint was filed did not warrant denial of motion to amend).
On the other hand, the bare fact that an amendment is filed within the confines of the
Court's Scheduling Order does not alone make a claim timely. See Mayeaux, 376 F.3d at 427.
Instead, the Court must look to the “procedural posture” of the case to determine whether the
delay actually prejudices the non-movant. See id. at 426–27 (“The delay must be undue, i.e., it
must prejudice the nonmoving party or impose unwarranted burdens on the court.”) (emphasis in
original). The Fifth Circuit has held that when leave to amend would cause severe prejudice to
defendants, it should be denied. Mayeaux, at 427; Smith v. RMC Corp., 393 F.3d at 595–97 (5th.
Cir. 2004).
At the time of Plaintiffs’ filing of the instant motion, no scheduling order has been issued
in this matter, therefore no deadlines have been set. Thus, Plaintiff’s motion is timely filed.
Because no deadlines are set, there is no undue delay or bad faith on Plaintiffs’ part in filing they

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amended complaint. Defendants' also have failed to oppose the motion and provide reasons why
permitting Plaintiff's filing would cause an undue delay or that she has a dilatory motive or
strategy behind her filing. Therefore, the Court finds that this factor weighs in favor of
permitting leave to amend.
B. Repeated Failure to Cure Deficiencies by Amendments Previously Allowed
The second factor the court considers when determining whether or not to grant leave to
amend pursuant to 15(a) is whether the party has previously filed repeated amendments before
filing the instant motion.
Courts in the Fifth Circuit have found that where a party has been given multiple
opportunities to cure a defect, denial of a 15(a) motion is proper. See, e.g., Price v. Pinnacle
Brands, Inc., 138 F.3d 602, 607–08 (5th Cir.1998) (upholding district court's denial of 15(a)
motion where plaintiffs had three prior opportunities to amend their complaint).
This is Plaintiffs’ second motion for leave to amend its complaint; however, this is the
first that relates to adding Landmark as a Defendant. Thus, there has not be been a “repeated”
failure of the Plaintiffs to amend or “cure” alleged defects in its pleading; therefore, this factor
weighs heavily in favor of granting the proposed amendments.
C. Undue Prejudice to the Opposing Party by Virtue of Allowance of the
Amendment
The third factor the court considers when determining whether or not to grant leave to
amend pursuant to 15(a) is whether the amendment will cause an undue prejudice to the
opposing party.
The Fifth Circuit has cautioned that amendments should not be permitted where they
would “fundamentally alter the nature of the case.” Hebert v. Specialized Environmental
Resources, LLC, 2013 WL 1288219, at *4 (E.D.La. Mar. 23, 2013); In re American International

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Refinery, Inc., 676 F.3d 455, 467 (5th Cir.2012)(noting that new allegations of fraud in
bankruptcy proceeding would have “fundamentally altered” the nature of a case which had
previously been limited to determination of whether one party possessed a conflict of interest
warranting disgorgement of monies paid); Mayeaux, 376 F.3d at 427–28 (finding that complaint
would be “fundamentally altered” where proposed amendment would destroy jurisdiction and
“effectively reconstruc[ed] the case anew.”).
Here, Plaintiffs’ amended complaint alleges the same claims as their initial complaint, but
seeks to add Landmark as a Defendant based on their reasonable belief that Landmark provides
applicable coverage for their causes of action and damages. Plaintiff argues that Landmark is
liable in solido with its insureds, which have been identified in the original Complaint. 1 As such,
the Court finds that permitting Plaintiffs amended complaint will not be unduly prejudicial to the
opposing party. Therefore, the Court finds that this factor weighs in favor of granting leave to
amend the complaint.
D. Futility of the Amendment
The fourth factor the court considers when determining whether or not to grant leave to
amend pursuant to 15(a) is whether the amendment, and or potential new claims are futile. Here,
Plaintiffs’ allegations in both complaints are virtually identical, and seek to add the insurance
company, who is alleged to have provided recovery for the risk. The Louisiana Direct Action
Statute, La. R.S. 22:1269, expressly provides for the filing as a direct action against the insurers,
as done here. LA. REV. STAT. § 22:1269. Thus, the Court authorizes the filing of a direct action
and finds that the filing of Plaintiff's amended complaint is not futile.

1

As noted above, based on the District Court’s order, Tangipahoa Parish Sheriff’s Office, Brandon Pinon,
and Schirra Finn, and State of Louisiana are no longer parties to this action. See R. Doc. 17.

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IV.

Conclusion
Accordingly,
IT IS ORDERED that the Plaintiffs’ Motion for Leave to File Second Supplemental

and Amending Petition (R. Doc. 19) is GRANTED.
New Orleans, Louisiana, this 2nd day of October 2015.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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