Elvir et al v. Trinity Marine Products, Inc. et al

Filing 166

RULING and ORDER granting in part and denying in part 56 Second Motion for Leave to Amend Complaint, 143 Second Motion to Substitute Plaintiffs' Revised Third Amended and Supplemental Complaint and 103 Motion for Leave to File Third Amende d and Supplemental Complaint. The 104 Motion for Expedited Hearing on Motion for Leave to File Third Amended and Supplemental Complaint is DENIED AS MOOT. Within 14 days, Plaintiff's shall file a comprehensive amended complaint that removes: f actual allegations related to claims against Legrand and Pass & Seymour; new negligence claims against the Trinity Defendants; and joint, several, and in solido liability claims against Defendants, and which will become the operative complaint in this matter. Signed by Magistrate Judge Erin Wilder-Doomes on 8/30/2018. (EDC) Modified on 8/30/2018 to edit the text (NLT).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

NELIN XIOMARA
GONZALEZ ELVIR, ET AL.

CIVIL ACTION

VERSUS

NO. 16-814-SDD-EWD

TRINITY MARINE PRODUCTS, INC., ET AL.

RULING AND ORDER
Before the Court is a Motion for Leave to Amend Complaint (the “Second Motion”),1 and
Motion for Leave to File Revised Third Amended and Supplemental Complaint (the “Third
Motion”), filed by Nelin Xiomara Gonzalez Elvir and Estevan Lopez Coello (collectively,
“Plaintiffs”), which seek to add additional parties and claims in this matter.2 Both Motions are
opposed.3 Plaintiffs have filed replies in support of the Second and Third Motions.4 Plaintiffs
have also filed a Second Motion to Substitute Revised Third Amended and Supplemental
Complaint,5 seeking to correct jurisdictional allegations, as ordered by the Court, but also seeking
to correct other allegations in the Second and Third Motions, and seeking to add yet another party
to this case.
For the reasons that follow, the Second and Third Motions6 are GRANTED IN PART.

1

Plaintiffs filed their Motion for Leave to File First Amending Complaint on March 17, 2017, which was granted on
June 8, 2017. R. Docs. 13, 26. On March 31, 2018, Plaintiffs filed the Second Motion, but titled it as “Motion for
Leave to Amend Complaint,” which seeks leave to file a second amended and supplemental complaint. R. Doc. 56.
For ease of reference, the Court will refer to the second-filed Motion as “the Second Motion” herein.
2
R. Doc. 103.
3
R. Docs. 74, 80 and 84; R. Docs. 111, 118.
4
R. Docs. 90, 138-139.
5
R. Doc. 143.
6
A motion for leave to amend is not among the motions expressly excluded from direct ruling by a magistrate judge
under 28 U.S.C. § 636(b)(1)(A). Further, although the Fifth Circuit has not ruled on the issue, the weight of authority
appears to be that motions for leave to amend are generally considered nondispositive in nature. See, e.g., Bona Fide
Demolition and Recovery, LLC v. Crosby Construction Co. of La., Inc., 07-3115, 2010 WL 4176858, *1 (E.D. La.

Plaintiffs’ Motion for Expedited Hearing on the Third Motion7 is DENIED as MOOT. Plaintiffs’
Second Motion to Substitute Revised Third Amended and Supplemental Complaint 8 is
GRANTED IN PART.
I.

Background
On or about October 28, 2016, Plaintiffs filed a Petition for Damages (“Petition”) in the

Eighteenth Judicial District Court for the Parish of West Baton Rouge, State of Louisiana, asserting
a wrongful death claim and survival action against Trinity Marine Products, Inc. (“Trinity
Marine”), Lincoln Electric Company (“Lincoln Electric”), ABC Insurance Company and DEF
Insurance Company for the personal injuries and death of Jose Ariel Aguilar Gonzalez (“Mr.
Gonzales”). Mr. Gonzalez, who is alleged to be Plaintiffs’ adult some, was electrocuted while
using equipment alleged to have been provided or manufactured by Trinity Marine and Lincoln
Electric.9 The incident occurred on October 22, 2015, while Mr. Gonzalez was performing
welding work for his employer, NSC Technologies, Inc., on the premises of Trinity Marine located
in Brusly, Louisiana.10 Plaintiffs allege that at the time of the accident, Mr. Gonzalez had been
instructed to use, and was in fact using, a Lincoln Electric DC 600, Code No. 11130, Sin: U
1061008593 (“Idealarc DC600” or the “Welder”) as an electrical power source.11 Plaintiffs further
allege that the Welder was able to deliver, and did deliver, a lethal shock to Mr. Gonzalez because
it was not equipped with a Ground Fault Circuit Interrupter (“GFCI”).12

Oct. 20, 2010)(collecting cases). Accordingly, the undersigned issues a Ruling and Order on all the referenced
motions, including the Second and Third Motions.
7
R. Docs. 57, 104.
8
R. Doc. 143.
9
R. Doc. 1-1.
10
Id. at ¶¶ II-IV.
11
Id. at ¶ VI.
12
Id. at ¶ XI.

2

Lincoln Electric removed the matter to this Court on December 2, 2016, asserting that the
Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.13 Alternatively, Lincoln Electric
asserts that the Court has federal question jurisdiction under 28 U.S.C. § 1331 based upon Section
905(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901
et seq., and that the Court has original jurisdiction over Plaintiffs’ maritime claims under 28 U.S.C.
§ 1333.14
The Second Motion
On March 31, 2018, Plaintiffs filed the pending Second Motion,15 seeking to add Trinity
Industries Services, LLC (“Trinity Industries Services”) and Trinity Industries, Inc. (“Trinity
Industries”) as defendants in this matter pursuant to Fed. R. Civ. P. 15.16 Although the deadline
to amend pleadings and add parties in this matter was March 17, 2017, 17 Plaintiffs assert that
good cause exists to allow these amendments because Plaintiffs did not learn of the existence of
the additional entities until the corporate deposition of Trinity Marine on March 23, 2018.18
Specifically, Plaintiffs allege that during the March 23, 2018 deposition, they learned that Trinity
Industries Services is the entity responsible for safety training, safety inspections, OSHA
compliance and other safety-related decisions and measures at the site of the underlying accident
and that Trinity Industries Services is owned by Trinity Industries.19 Plaintiffs claim that Trinity

13

R. Doc. 1 at ¶ 7.
Id. at ¶¶ 20-23.
15
Plaintiffs’ First Supplemental and Amended Complaint names Navigators Insurance Company (“Navigators”),
Liberty Mutual Insurance Company (“Liberty Mutual”) and Allianz Global Risks US Insurance Company (“Allianz”)
as defendants in place of ABC Insurance Company and DEF Insurance Company. (R. Doc. 27).
16
R. Doc. 56.
17
R. Doc. 12.
18
R. Doc. 56-1.
19
R. Doc. 56-1 at pp. 1-2. However, in their Motion to Substitute Revised Third Amending and Supplemental
Complaint at R. Doc. 143, ¶¶ II-IV, Plaintiffs aver that they have ultimately determined that, despite deposition
testimony to the contrary, Trinity Industries Services does not actually exist. Rather, the correct entity, as confirmed
by counsel for Trinity Marine, is “Trinity Corporate Services, LLC,” which Plaintiffs seek to add as a defendant in
their Third Motion.
14

3

Industries Services was not mentioned in any of the documents produced by the parties during
initial disclosures or discovery, was not identified in an answer to the Complaint or in any
interrogatory, and no witness had testified about its existence until March 23, 2018.20 Plaintiffs
assert that although Trinity Industries was mentioned in the November 2017 depositions of
persons who worked at the facility where the underlying accident occurred, the references were
made in a manner that did not suggest liability on the part of Trinity Industries at the time.21
Thus, Plaintiffs assert there has been no undue delay in joining Trinity Industries Services or
Trinity Industries.
With respect to the good cause analysis under Rule 15, Plaintiffs assert that they do not
intend to delay this matter or act in bad faith, but are attempting to join the Trinity entity that is
responsible for the damages alleged in the Complaint.22 Plaintiffs claim that this is not an instance
where they have repeatedly failed to cure pleading deficiencies and that Defendants will not be
prejudiced by the amendments. Plaintiffs also assert that the amendments are not futile because
they state a claim for relief against the new parties.23 Thus, Plaintiffs assert that good cause exists
to allow the amendments under Fed. R. Civ. P. 15.
In three separate opposition briefs, Lincoln Electric and Allianz, Trinity Marine, and
Navigators assert that the Second Motion should be denied.24 Lincoln Electric and Allianz assert
that the Second Motion should be denied because Plaintiffs have had actual or constructive
knowledge of the existence of Trinity Industries Services and Trinity Industries for months and
failed to act diligently during discovery to learn more about the entities’ potential relevance to this

20

Id. at pp. 2-3.
Id. at p. 3.
22
Id.
23
Id.
24
See R. Docs. 74, 80 and 84.
21

4

litigation.25 Lincoln Electric and Allianz claim that Trinity Industries was mentioned during
depositions taken by Plaintiffs in November 2017 and was referenced in a document produced by
Lincoln Electric on February 2, 201726 and in Lincoln Electric’s written discovery responses,
served on Plaintiffs in October 2017. Lincoln Electric and Allianz point out that Plaintiffs filed
the Second Motion nine days before the discovery cutoff and assert that the Second Motion should
be denied to the extent the amendments would require reopening discovery as to Lincoln Electric
or cause any further delay in this litigation.27 Lincoln Electric and Allianz contend that Lincoln
Electric will be prejudiced by the reopening of discovery and by any delay in the litigation.28
In a separate opposition, Trinity Marine asserts that the Motion should be denied because
Plaintiffs have failed to show good cause to amend the Scheduling Order under Fed. R. Civ. P. 16
or to allow the amendments under Fed. R. Civ. P. 15, since Plaintiffs have “possessed documents
identifying the other Trinity entities since before suit was filed or, at the latest, very shortly
afterwards.”29 With respect to Plaintiffs’ knowledge of the other Trinity entities, Trinity Marine
points to the following: (1) the OHSA Report pertaining to the underlying accident, which has
been in Plaintiffs’ possession since January 26, 2017;30 (2) Texas and Louisiana Secretary of State
records available prior to the deadline for amending the pleadings;31 (3) Trinity Marine’s February
2, 2017 Initial Disclosures, which included the relevant contract between NSC Technologies, Inc.
and Trinity Industries, Inc. and the Safety Policy of Trinity Marine titled “Trinity Industries, Inc.
Corporate Safety Standard;”32 (4) the fact that Plaintiffs’ counsel asked questions during the

25

R. Doc. 74 at pp. 1-2.
Id. at pp. 1-2 (citing R. Doc. 74-1).
27
R. Doc. 74 at p. 2.
28
Id. at p. 3.
29
R. Doc. 80 at pp. 5-6 (citing R. Doc. 10 and R. Doc. 80-8).
30
R. Doc. 80 at pp. 1, 5-6 (citing R. Doc. 10).
31
R. Doc. 80 at p. 6 (citing R. Docs. 80-8 and 80-9).
32
R. Doc. 80 at p. 6 (citing R. Doc. 80-1 at pp. 5-32 and R. Doc 80-11).
26

5

November 28, 2017 depositions of former Trinity Marine employees that evidenced his full
awareness of the potential involvement of other Trinity entities by that date;33 and (5) the January
26, 2018 production by Trinity Marine of a supervisor’s pay stubs containing the name “Trinity
Industries” at the top.34
Trinity Marine also asserts that, although Plaintiffs have failed to articulate the importance
of the amendments, any such argument is undercut by Plaintiffs’ failure to diligently pursue their
allegations against the two entities and Plaintiffs’ failure to seek leave until over a year after the
Court’s deadline for amending the pleadings.35

Trinity Marine likewise asserts that the

amendments would be futile because they fail to allege a cause of action against the parties sought
to be joined. Trinity Marine further argues that it will be prejudiced by the amendments because
additional discovery will be required on the new allegations and the new parties, as the new
allegations may require the retention of new liability experts by both parties.36 Trinity Marine also
asserts that the Motion should be denied because the addition of new parties will likely require a
continuance of the trial.37 For these same reasons, Trinity Marine argues that Plaintiffs cannot
satisfy the good cause requirement of Fed. R. Civ. P. 15 to allow the amendments.38
Navigators also filed an opposition to the Motion, which “adopts by reference the
arguments, exhibits, and supporting authorities” set forth in Trinity Marine’s opposition.39
In reply, Plaintiffs maintain that they did not obtain sufficient information regarding Trinity
Industries or Trinity Industries Services to justify adding them as defendants until the March 23,

33

R. Doc. 80 at p. 6 (citing R. Docs. 80-5 and 80-6).
R. Doc. 80 at p. 7 (citing R. Doc. 80-7 at pp. 9-10).
35
R. Doc. 80 at pp. 7-8.
36
R. Doc. 80 at p. 8.
37
Id. at pp. 8-9 (citation omitted).
38
Id. at p. 9.
39
R. Doc. 84 at p. 1.
34

6

2018 deposition of Trinity Marine.40 Plaintiffs emphasize that, “if Trinity Marine Products is
unable to properly identify the entity at issue, it is absurd to expect plaintiffs to have divined the
identity of the entity responsible for safety policies, safety training, and so on at the Trinity Marine
Products’ Brusly, Louisiana site, until this new information was received.”41
The Third Motion
On May 25, 2018, Plaintiffs filed the pending Third Motion, which seeks to (1) add
Legrand North America, LLC (“Legrand”),42 the manufacturer of the plugs that were used on the
extension cords allegedly used by Mr. Gonzalez when he operated the Welder; (2) add a negligence
and products liability claim against the Trinity entities that fabricated the two extension cords using
Legrand’s plugs; (3) add “Trinity Corporate Services, LLC, as an additional defendant;” (4) assert
joint, several, and in solido liability among some of the Defendants; and (5) correct the name of
Plaintiff Estevan Lopez Coello to “Jose Esteban Lopez Coello.”43
Plaintiffs claim that Legrand’s joinder is made necessary because of the defense experts’
accident theories, which posit that the accident was caused when the male and female ends of the
plugs44 were mis-matched, which allowed “nonmatching leads” in the extension cords (made by a
Trinity Defendant) to be connected to each other.45 The experts contend that the mis-match
allegedly cause the drop light that Mr. Gonzales was using (which was plugged into extension
cords that were plugged into the Welder), to become energized, which in turn caused the electric
shock that killed him.46 One expert also contends that an “improper modification” was made to

40

R. Doc. 86-2.
Id. at p. 4.
42
However, see discussion infra, regarding Plaintiffs’ Revised Third Amended Complaint, which reflects that the
Legrand entity they are seeking to add is actually “Legrand Holding, Inc.” R. Docs. 143 and 143-7, ¶ I, p. 3.
43
R. Doc. 103, pp. 1-2.
44
The documents alternately refer to the plugs as “Turnlok connectors” and “Pass Seymour” plugs. See, e.g., R. Doc.
103-1, pp. 1-2 (citing the reports of some of Defendants’ experts).
45
R. Doc. 103-1, p. 2 (citing R. Doc. 103-4, p. 3, R. Doc. 103-5, p. 13).
46
R. Doc. 103-1, pp. 1-2 (citing R. Doc. 103-4, p. 3, R. Doc. 103-5, p. 13).
41

7

one of the plug’s grounding spades, which permitted an “abnormal connection” between the
plugs.47 Both opine that a GFCI would not have prevented the effects of the mis-matching.48
Plaintiffs allege that Legrand’s potential liability was not asserted in discovery responses or in
initial disclosures, and that Mr. Gonzalez’s supervisor testified that he did not think it was possible
to improperly connect the extension cords, which did not appear defective to him.49 Plaintiffs thus
assert that, since Defendants’ experts have now raised the above theory as the cause of the accident,
and the Trinity entities made and provided extension cords to workers that could be improperly
modified, Plaintiffs should be allowed to join Legrand, and also assert a products liability and
negligence claim against the Trinity entities that selected the plugs and made the extension cords.50
Plaintiffs assert that they should be allowed to add “Trinity Corporate Services, LLC”
(“Trinity Corporate Services”) as a defendant because they did not become aware of Trinity
Corporate Services until Trinity Marine’s Opposition to the Second Motion, wherein Trinity
Marine asserted that Trinity Corporate Services was being “improperly named as Trinity Industries
Services.”51 Plaintiffs claim that the prior deposition testimony of Trinity Marine’s corporate
representative in March 2018 indicated that “Trinity Industries Services, LLC” was the Trinity
entity that was responsible for safety training, inspections, and other safety-related decisions at the
accident site, which is why Plaintiffs sought leave to amend to add that entity in the Second
Motion, and “Trinity Corporate Services, LLC” was not identified. Plaintiffs allege that they have
undertaken “a number of efforts” to obtain the names of these entities. 52 Plaintiffs thus want to
add Trinity Corporate Services as a defendant because it is potentially liable under the same

47

R. Doc. 103-1, p. 3 (citing R. Doc. 130-5, p. 13).
R. Doc. 103-1, p. 3 (citing R. Doc. 103-4, p. 3, R. Doc. 103-5, pp. 13-14).
49
R. Doc. 103-1, p. 3 (citing R. Doc. 103-2, p. 2 and R. Doc. 103-3, pp. 2-3).
50
R. Doc. 103-1, p. 3.
51
R. Doc. 103-1, p. 5 (citing R. Doc. 80, p. 1).
52
R. Doc. 103-1, p. 6.
48

8

theories as the other Trinity Defendants. Finally, Plaintiffs assert that, since they are seeking leave
to amend to add new defendants, they are also want to add a claim of “joint, several, and in solido
liability against defendants, and alternatively, joint liability of some of the defendants”
(collectively, “joint and several liability”), and want to correct the name of one of the Plaintiffs.53
Regarding the Rule 15 analysis, Plaintiffs assert that they have not unduly delayed since
Defendants’ expert reports have only recently been produced, and they have only just become
aware of the existence of Trinity Corporate Services in Trinity’s April 17, 2018 Opposition.54
Plaintiffs further assert that they are not acting in bad faith or with intent to delay this matter.
Rather, they seek to add Legrand since its potential liability has been raised by defense experts,
and to add Trinity Corporate Services to be certain they have joined the Trinity entity that is
responsible for Plaintiffs’ alleged damages.55 Plaintiffs again claim that this is not an instance
where they have repeatedly failed to cure pleading deficiencies and Defendants will not be
prejudiced by the amendments. Plaintiffs also assert that the amendments are not futile because
they state new claims for relief against the proposed new parties based on the theories of the
defense experts.56 Thus, for many of the same reasons previously asserted in support of their
Second Motion, Plaintiffs assert that good cause exists to allow the third round of amendments
under Fed. R. Civ. P. 15.
In two separate opposition briefs, Lincoln Electric and Allianz, and Trinity Marine, assert
that the Third Motion should be denied. Defendants contend that Plaintiff have failed to address
Fed. R. Civ. P. 16 as the applicable standard.57 Lincoln Electric and Allianz dispute Plaintiffs’

53

R. Doc. 103, p. 2, R. Doc. 103-1, p. 5.
R. Doc. 103-1, p. 6.
55
R. Doc. 103-1, p. 7.
56
Id.
57
R. Doc. 111 and p. 3 and R. Doc. 118 and p. 7.
54

9

contention that Plaintiffs did not become aware of the need to add Legrand, and the additional
claims against Trinity Marine, until their receipt of Defendants’ expert reports.58 Rather, Lincoln
Electric and Allianz contend that Plaintiffs had access to the plugs, and thus could have noticed
problems with the plugs, at the parties’ February 2017 inspection of the equipment.59 They further
contend that, in February and June 2017, Trinity Marine provided a list of the specifications for
the parts that were to be inspected at the February 2017 inspection and produced photos of the mismated and damaged plugs and their packaging.60 Further, Lincoln Electric and Allianz contend
that Plaintiffs were also previously aware of the defense experts’ theory of the accident because it
was alluded to (1) in Lincoln Electric’s October 2017 discovery responses wherein it stated it was
“investigating whether the two extension cords were properly connected;” (2) at the March 2018
deposition of Lincoln Electric’s corporate representative, wherein the witness testified regarding
the cords and a receptacle being “damaged” and that the plug was “damaged to the point where it
allowed an incorrect insertion into [the] receptacle;” and, (3) in Plaintiffs’ own April 2018 expert
report, wherein Plaintiffs’ expert noted (in pertinent part): “extension cords…found in
unreasonably poor condition…, which included physically damaged plugs & receptacles, thermal
burn damages to plugs….”61 Lincoln Electric and Allianz likewise contend that Plaintiffs have
known about the existence of other Trinity entities since at least February 2017 when the parties
submitted their Initial Disclosures.62 According to these Defendants, the foregoing demonstrates

58

R. Doc. 111, p. 1.
R. Doc. 111, pp. 2, 4.
60
R. Doc. 111, pp. 4-5 (citing R. Docs. 111-1, 111-3, and 111-4).
61
R. Doc. 111, pp. 5-6 (citing R. Doc. 111-5, 111-6, p. 2 and R. Doc. 118-5).
62
R. Doc. 111, pp. 2-3.
59

10

that Plaintiffs have not acted diligently in the discovery process and have not shown a good
explanation for their failure to timely seek leave to amend.63
Next, Lincoln Electric and Allianz also contend that two of the other Rule 16 factors also
weigh against granting Plaintiffs’ Third Motion. The amendments to assert additional negligence
claims against Trinity Marine are not important because such claims have already been asserted,
and amending to add Legrand is not important because Plaintiffs can pursue Legrand in state court,
if any of the existing Defendants is ultimately found liable to Plaintiffs.64 Defendants contend that
in this late stage of the litigation, there is no gain in fairness, efficiency, or judicial economy by
adding Legrand.65 Further, all Defendants are prejudiced by the potential amendments because
they will cause the parties to have to re-open and conduct additional discovery and cause a delay
to the resolution of the litigation. Further, Defendants argue prejudice in Plaintiffs delay in seeking
leave to amend until after fact discovery closed and expert discovery began, despite having the
requisite information to seek leave earlier.66
Trinity Marine’s opposition brief echoes several of the arguments asserted by Lincoln
Electric and Allianz. Trinity Marine also alleges that Plaintiffs have not provided a good
explanation for their untimely amendments.

Trinity Marine asserts that Plaintiffs’ own

representations and experts, and the information produced during discovery, establish that
Plaintiffs were aware of the plugs and the existence of Legrand prior to the production of
Defendants’ expert reports. Trinity Marine specifically points to: (1) Plaintiffs’ Joint Status Report

63

Id. at pp. 3, 5. Defendants assert that Plaintiffs did not serve discovery on them, and Trinity Marine, until August
2017 and October 2017, respectively, which was well after the expiration of the deadline to amend pleadings. Id. at p.
5.
64
R. Doc. 111, pp. 6-7 (citing R. Doc. 27 at ¶ XII). These Defendants contend that Plaintiffs interrupted prescription
against Legrand when they filed suit against joint tortfeasors Lincoln Electric and Trinity Marine, if the latter two are
ultimately found liable to Plaintiffs.
65
R. Doc. 111, p. 7.
66
R. Doc. 111, pp. 7-8.

11

submittal wherein Plaintiffs stated that “Plaintiffs believe there were likely other defects with the
[Welder] that made it unreasonably defected (sic)….Plaintiffs also believe…other necessary safety
measures were lacking;” (2) Plaintiffs’ and their experts’ participation in the February 2017
inspection of the equipment, including the extension cords; (3) Lincoln Electric’s October 2017
discovery responses, wherein Lincoln Electric stated that the absence of GFCI protection was not
related to the accident; (4) Trinity Marine’s responses to written discovery and production of
records regarding the equipment in the accident, which included evidence identifying the plugs,
cords, and identifying Legrand; (5) the depositions of Mr. Gonzalez’s supervisors, wherein
Plaintiffs inquired about damaged extension cords, defects in the extension cords used by Mr.
Gonzalez and how the cords were connected together with the Legrand plugs, training regarding
connection of the two cords by placing the correct prongs in the correct sockets, identification of
a bent prong on one of Mr. Gonzalez’s cords, and whether a supervisor inspected the twist lock on
Mr. Gonzalez’s cord; (6) Lincoln Electric’s corporate deposition, wherein Plaintiffs inquired about
extension cords and connectors and the witness observed that the plug on one cord was damaged
and allowed an incorrect insertion into a receptacle, which he opined ultimately resulted in
electrocution that could not have been prevented by a GFCI; and (7) Trinity Marine’s corporate
deposition, wherein the witnesses testified about damaged connectors on the cord and damaged
prongs.67 Trinity Marine avers that the foregoing evidence belies Plaintiffs’ claim that they only
recently learned of the facts giving rise to their proposed Third Amended and Supplemental
Complaint.

67

(1) R. Doc. 118, p. 2 (citing R. Doc. 13); (2) R. Doc. 118, pp. 2-3, (citing R. Doc. 118-7); (3) R. Doc. 118, p. 3,
(citing R. Doc. 118-1); (4) R. Doc. 118, p. 3 (citing R. Doc. 118-2); (5) R. Doc. 118, pp. 3-5 (citing R. Docs. 118-3
and 118-4); (6) R. Doc. 118, p. 4 (citing R. Doc. 118-5); and (7) R. Doc. 118, p. 6 (citing R. Doc. 118-6).

12

Next, Trinity Marine contends that Plaintiffs’ amendments are not important because they
are futile under Rule 15 (discussed more fully below); specifically, Plaintiffs have failed to
properly allege jurisdiction and the claims against the proposed new defendants are prescribed.68
Further, Trinity Marine argues that Plaintiffs cannot claim that their amendments are important
because they, and their own experts, contend that Defendants’ experts’ theories are incorrect. As
to the third and fourth Rule 16 factors, Trinity Marine incorporates by reference its prior arguments
asserted in its Opposition to Plaintiffs’ Second Motion (i.e., it faces prejudice by the amendments
because additional discovery will be required on the new allegations and the new parties, the new
allegations may require the retention of new liability experts by both parties, and a new trial date
will likely be necessary).69
With regard to futility, Trinity Marine argues that the Third Motion fails to properly allege
this Court’s jurisdiction over the proposed new parties. The case was removed on the basis of
diversity jurisdiction, but Plaintiffs failed to allege the citizenship of limited liability companies
Trinity Industries, Trinity Corporate Services, and Legrand. Further, the alternate asserted basis
for jurisdiction, e.g., maritime law, is not applicable because of the nature of the accident
(electrocution of a land-based worker on land).70

Finally, Trinity Marine asserts that the

amendments are also futile because the claims against the proposed new defendants, as well as
Trinity Industries Services and Trinity Industries, are prescribed, relying on Darr v. Amerisure Ins.
Co.71
In Reply to Lincoln Electric, Plaintiffs argue that Defendants cannot claim they are
prejudiced by the addition of Legrand, when Defendants allege that Legrand is at fault (according

68

R. Doc. 118, p. 11.
R. Doc. 80, pp. 8-9 (citation omitted).
70
R. Doc. 118, p. 12.
71
R. Doc. 118, pp. 12-13. No. 16-232, 2016 WL 5110267, *6 (M.D. La. 2016).
69

13

to Plaintiffs).72 Plaintiffs contend that Lincoln Electric’s evidence does not show that Defendants’
theory of the accident was disclosed prior to the production of the expert reports. Likewise,
Plaintiffs argue that Trinity Marine has taken the deposition testimony of Trinity Marine’s and
Lincoln Electric’s corporate representatives out of context, such that their testimony did not
indicate Defendants’ alleged theory that Legrand was potentially at fault (as articulated by
Plaintiffs).73 Plaintiffs argue that the Court should reject Lincoln Electric’s argument that Plaintiff
can litigate its claims against Legrand in state court as being contrary to Fed. R. Civ. P. 19, legally
unsupported, unnecessary, and unjust to Plaintiffs.74 Finally, Plaintiffs assert that their claims are
not prescribed because the interruption of prescription against one solidary obligor is effective
against all solidary obligors, or alternatively, because interruption of prescription against one joint
tortfeasor is effective against all joint tortfeasors.75
Revised Third Amended Complaint
On July 5, 2018, Plaintiffs were ordered to file a motion to substitute their proposed Third
Amended Complaint with a pleading that properly alleges the citizenship of the newly proposed
defendants, Legrand and Trinity Corporate Services.76 Plaintiffs’ first Motion to Substitute Third
Amended and Supplemental Complaint for Damages was denied for failure to comply with the
Court’s order.77 Plaintiffs’ Second Motion to Substitute Plaintiffs’ Revised Third Amended and
Supplemental Complaint for Damages (“Revised Third Amended Complaint”) adequately pleads
the citizenship of the newly proposed parties. The Second Motion to Substitute will be granted,
but only to the extent it seeks to substitute Plaintiffs’ Revised Third Amended Complaint at R.

72

R. Doc. 138, p. 2.
R. Doc. 139.
74
R. Doc. 138, pp. 4-5.
75
R. Doc. 139, pp. 4-5 citing La. C.C. arts. 1799 and 2324(C).
76
R. Doc. 129.
77
R. Docs. 140 and 141.
73

14

Doc. 143-7 in place of Plaintiffs’ originally proposed Third Amended Complaint at R. Doc. 1036.78
In their Second Motion to Substitute, Plaintiffs claim that they have learned that “Trinity
Industries Services, LLC,” which they sought to add in their Second Motion, is not an actual
entity.79 Rather, Plaintiffs aver that Trinity Marine’s counsel has confirmed that the correct entity
that Plaintiffs seek to add is actually Trinity Corporate Services. Therefore, in their Revised Third
Amended Complaint, Plaintiffs have removed their claims against Trinity Industries Services,
LLC.80 Plaintiffs also clarify in their Revised Third Amended Complaint that they seek to add
“Legrand Holding, Inc.” (hereinafter, “Legrand”) as the correct defendant. Finally, Plaintiffs
attempt to add yet another defendant –“Pass & Seymour, Inc.,” who is alleged to be a whollyowned subsidiary of Legrand that “has acted in more or less the same role as Legrand.”81
II.

Law and Analysis
Fed. R. Civ. P. 15(a) provides that leave to amend, “shall be freely given when justice so

requires.” In the instant case, however, Plaintiffs seek leave to amend the Complaint after the
deadline for filing amendments and adding parties has passed.82 As such, Plaintiffs are asking this
Court to modify the Scheduling Order to allow the filing of the proposed Second and Revised
Third Amended and Supplemental Complaints.83 Fed. R. Civ. P. 16(b) provides that scheduling
orders, “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P.
16(b)(4).

78

R. Doc. 143.
R. Doc. 143, ¶¶ II-IV.
80
See R. Doc. 143-7, ¶ I.
81
R. Doc. 143, ¶ VI, R. Doc. 143-7, ¶ I, pp. 3-4.
82
R. Doc. 12.
83
R. Doc. 56-2, R. Doc. 143-7.
79

15

According to the Fifth Circuit, “Rule 16(b) governs amendment of pleadings after a
scheduling order deadline has expired. Only upon the movant’s demonstration of good cause to
modify the scheduling order will the more liberal standard of Rule 15(a) apply to the district court’s
decision to grant or deny leave.”84 “The good cause standard requires the ‘party seeking relief to
show that the deadlines cannot reasonably be met despite the diligence of the party needing the
extension.’”85 In determining “good cause,” this Court must consider the following four factors:
(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the
amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a
continuance to cure such prejudice.86
A. Plaintiffs’ Request to Add Trinity Corporate Services and Trinity Industries, and to
Correct Plaintiff’s Name
1. Plaintiffs Have Shown That Good Cause Exists to Modify the Scheduling Order Under
Rule 16(b) as to These Amendments
The Addition of the New Trinity Defendants
Plaintiffs have shown that good cause exists to modify the Scheduling Order under Rule
16(b) to add Trinity Corporate Services and Trinity Industries as defendants in this case.87 With
respect to the first factor, the explanation for Plaintiffs’ failure to timely move for leave to amend
before the March 17, 2017 deadline,88 Plaintiffs’ do not offer a sufficient explanation for their
delay in seeking leave to amend to add Trinity Industries. As Trinity Marine points out, Plaintiffs

84

S&W Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003).
Id. at 535 (quoting 6A Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990)).
86
S&W Enterprises, L.L.C., 315 F.3d at 536 (citations omitted).
87
As previously mentioned, Plaintiffs’ Revised Third Amended Complaint withdrew Plaintiffs’ claims against Trinity
Industries Services, LLC. R. Doc 143-7.
88
R. Doc. 12.
85

16

were in possession of several documents, as early as January 2017, that listed Trinity Industries,
Inc.—enough to at least incite inquiry as to Trinity Industries, Inc.’s potential involvement.89
Plaintiffs’ delay in seeking leave to amend to add Trinity Corporate Services is not,
however, unexplained, unjustified or unreasonable. Contrary to Trinity Marine’s assertion, the
documents are not clear with respect to the involvement of Trinity Corporate Services, as many of
the documents relied upon by Trinity Marine refer to an entity named “Trinity Marine Services,
LLC,” rather than Trinity Corporate Services, LLC.90 Moreover, Michael Stripe, the VicePresident of Safety for Trinity Corporate Services and Trinity Marine’s corporate representative,
mis-identified the correct entity with respect to safety, as he testified that the name of the correct
entity was “Trinity Industries Services.”91 Later, Trinity Marine’s counsel confirmed that there is
no such entity and that the real entity is Trinity Corporate Services. 92 If Trinity Marine’s own
representative is confused about the name of the correct Trinity entity responsible for safety, it is
unrealistic to think Plaintiffs were in a better position to determine which Trinity entity is the
correct one. Thus, the first factor weighs in favor of finding that good cause exists to modify the
Scheduling Order to allow the addition of Trinity Corporate Services. The first factor does not
weigh in favor of an amendment to add Trinity Industries.
With respect to the second factor, the importance of the amendments, adding Trinity
Industries and Trinity Corporate Services as defendants is important to the relief sought by

89

See e.g., R. Doc. 80-11, Corporate Safety and Health Policy which states that it is the policy of Trinity Industries,
Inc. to “eliminate or reduce exposure of employees to accidental injury or conditions, which may adversely affect their
safety or health.” See also, Master Temporary Labor Services Agreement between NSC Technologies Worldwide
and Trinity Industries, Inc., whereby NSC agreed to provide welders and fitters to Trinity Industries, Inc. R. Doc. 801, pp. 5-32, and a Certificate of Liability Insurance listing Trinity Industries, Inc., and its subsidiaries and affiliated
legal entities as additional insureds with NSC. R. Doc. 80-1, p. 33.
90
See R. Doc. 80-8 at pp. 1-2, 5-8, and 11-13. See also R. Doc. 80-6 at p. 3, ll. 5-9.
91
R. Doc. 143-1, pp. 2-3, 5-10, 12, and 14-15. See also R. Doc 143-1, p. 13, ll. 17-20 (wherein Trinity Marine’s
corporate representative appears to have testified that there were no other Trinity companies involved besides Trinity
Industries, Trinity Marine, and Trinity Industries Services).
92
R. Doc. 143-2.

17

Plaintiffs on their wrongful death and survival claims. Plaintiffs allege that the two entities were
allegedly responsible for the safety procedures at the site of the underlying accident and that their
actions may have caused or contributed to the death of Mr. Gonzalez.93
Trinity Marine argues that Plaintiffs’ claims against Trinity Corporate Services and Trinity
Industries are unimportant (and/or futile) because they are prescribed.94 In this case, Plaintiffs
have alleged wrongful death and survival actions, premised upon negligence and products liability,
against these proposed defendants. Thus, a one-year prescriptive period under Louisiana law
applies.95 Plaintiffs’ Second and Third Motions attempting to add the new Trinity entities were
filed on March 31, 2018 and May 25, 2018, respectively, which filings were well past the one-year
anniversary of Mr. Gonzalez’s death, i.e., October 22, 2016.96 Therefore, Plaintiffs’ claims against
the proposed Trinity entities were prescribed on their face when they were raised, unless the claims
relate back to the filing of the original Petition. “[I]t is clear that the Federal Rules of Civil
Procedure ‘apply to a civil action after it is removed from a state court.’’97 Thus, Fed. R. Civ. P.
15(c) applies to determine whether the proposed Amended Complaints relate back to the filing of
the original Petition. Plaintiffs have the burden to demonstrate that an amended complaint relates
back under Rule 15(c).98
Rule 15(c), as interpreted by the United States Supreme Court’s holding in Krupski v. Costa
Crociere S. p. A.,99 appears to allow relation back in the situation at hand. Under Rule 15(c)(1), an
amendment to a pleading relates back to the filing of the original pleading when:

93

R. Doc. 56-1 at pp. 1-2.
R. Doc. 118, pp. 11-12.
95
See La. C.C. art. 2315, La. C.C. art. 2315.1, and La. C.C. art. 3492.
96
R. Doc. 1; R. Doc. 27, ¶ IV; R. Docs. 56 and 103.
97
Darr v. Amerisure, No. 16-232, 2016 WL 5110267, (M.D. La. Aug. 31, 2016), *6, and Norton v. Livingston Parish
Detention Center, No. 13-437, 2014 WL 1057218 (M.D. La. Mar. 19, 2014), *3 (citations omitted).
98
Darr, 2016 WL 5110267 at *6 (citations omitted).
99
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548, 130 S. Ct. 2485, 2493, 177 L.Ed. 2d 48 (2010).
94

18

(A) the law that provides the applicable statute of limitations allows
relation back;
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out--or attempted to be set
out--in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and
if, within the period provided by Rule 4(m) for serving the summons
and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in
defending on the merits; and
(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party's
identity.100
It is clear that factors (A) and (B) are met, as Louisiana law allows for relation back,101 and the
amendments assert claims as to these proposed defendants that arise out of the same transaction
and occurrence set out in the original Petition. Factor (C)(i) also appears to be met. Specifically,
the proposed Trinity Defendants have an identity of interest with Trinity Marine, such that they
likely received constructive notice of the action,102 and there is record evidence indicating that they
will not be prejudiced in defending on the merits. For example, the Vice-President of Safety for

100

Fed. R. Civ. P. 15(c)(1).
See La. C.C.P. art. 1153 and see Smith v. Auto Club Family Ins. Co., No. 08-1358, 2008 WL 5110590, at *3 (E.D.
La. Nov. 25, 2008) (“Louisiana law provides a similar relation back mechanism: “[w]hen the action or defense
asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.” La.
Code Civ. Proc. Art. 1153. Because Art. 1153 is based on Rule 15, Louisiana courts apply essentially the same test as
Rule 15, but state the test in a four-part instead of a three-part framework. Thus, relation back of an amendment under
Louisiana law requires: (1) a factual nexus, that is the cause of action in the amended petition must arise out of the
same transaction or occurrence as that involved in the original petition; (2) the new defendant must have received
actual notice of the original action so that there is no prejudice to its rights; (3) the new defendant must know or have
reason to have known that it would have been named in the original petition but for a mistake in identity; and (4) the
new defendant must not be a wholly new or unrelated defendant as to the defendant in the original petition.”
102
See Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) (Holding that “our courts” will infer notice if there is
an identity of interest between the original defendant and the defendant sought to be added or substituted) (citations
omitted). “Identity of interest generally means that the parties are so closely related in their business operations or
other activities that the institution of an action against one serves to provide notice of the litigation to the other.” Id.
(citation omitted). In this regard, notice may be imputed to the new party through shared counsel. Barkins v.
International Inns, Inc., 825 F.2d 905, 907 (5th Cir. 1987), Hendrix v. Memorial Hosp. of Galveston County, 776 F.2d
1255, 1257–58 (5th Cir. 1985) (reversed in part on other grounds). In this case, Trinity Marine submitted Initial
Disclosures identifying Stripe of Trinity Corporate Services as Trinity Marine’s witness on February 2, 2017, which
suggests shared counsel. R. Doc. 80, p. 1, R. Doc. 80-1, p. 1.
101

19

Trinity Corporate Services, Michael Stripe, was the designated corporate representative of Trinity
Marine and testified at Trinity Marine’s Rule 30(b)(6) corporate deposition, which indicates
Trinity Corporate Services’ knowledge of the action.103 Regarding factor (C)(ii), in Krupski, the
personal injury plaintiff had actual or constructive knowledge of two entities that were related and
potential defendants. The plaintiff sued one entity on the basis of diversity jurisdiction, but then,
upon learning that the second entity was the actual defendant, dismissed the first entity and sued
the second one after the prescriptive period expired. Overturning the lower courts, the Supreme
Court held:
The question under Rule 15(c)(1)(C)(ii) is not whether [plaintiff] knew or
should have known the identity of Costa Crociere as the proper defendant,
but whether Costa Crociere knew or should have known that it would have
been named as a defendant but for an error. Rule 15(c)(1)(C)(ii) asks what
the prospective defendant knew or should have known during the Rule 4(m)
period, not what the plaintiff knew or should have known at the time of
filing her original complaint.104
Applying Krupski to this particular case, the Petition and First Amended Complaints indicate that
Plaintiffs intended to sue, for example: (1) “the owner and custodian and person in control of the
premises…liable…for…placing in use…the [Welder]…,” and the entity responsible for (2)
“failing to adequately to monitor and supervise the floor of its building and the work areas of its
premises…,” and (3) “failing to adequately supervise…the conduct of its servants….,” which
allegations implicate Trinity Marine.105

However, Plaintiffs’ Petition and First Amended

Complaint indicate that Plaintiffs also intended to sue: “the owner and custodian and person in
control of…the [Welder] that was involved in the incident….,” and, e.g., the entity responsible for

103

See R. Doc. 143-1.
Krupski, 560 U.S. at 548. This analysis applies even if the plaintiff is aware of the existence of the proposed
defendant, and chooses not to sue it. Moreover, the amending party’s diligence/post-filing conduct is not a factor to
be considered in this particular analysis, unless it bears on the prospective defendant’s understanding of whether the
plaintiff initially made a mistake concerning the proper party’s identity. Id. at 549, 553-554.
105
R. Doc. 1-1, ¶ XII, R. Doc. 27, ¶ XII (b), (c), and (d).
104

20

(1) “failing to provide a safe area for …permittees,” (2) “failing to warn… employees…of the
hazards,” (3) “failing to warn employees…of unreasonable risks of harm…,” and (4) “failing
to…maintain…and provide potential operators of the [Welder] with an owner’s/user’s manual for
the [Welder],” among many other similar allegations, which implicate Trinity Corporate Services
and Trinity Industries, as shown by the following.106 Stripe, Vice-President of Safety for Trinity
Corporate Services, testified that Trinity Corporate Services (which he mistakenly identified as
“Trinity Industries Services, LLC”) is responsible for regulatory compliance, everything related to
OSHA, all the corporate standards and the “toolbox,” materials related to electrical equipment
handed out at orientation and “tool box” talks, training on electrical issues, physical hazard audits
of the facility, and the protocol put in place for GFCI and extension cords after the accident-- in
other words, safety issues.107 Further, Lincoln Electric’s discovery responses identified Trinity
Industries as the entity that purchased and owned the Welder, and Trinity Marine produced the
“Corporate Safety Standard” policy, and in particular, the “Electrical Safety-Related Work
Practices,” which are promulgated by “Trinity Industries Inc.”108 The foregoing indicates that the
proposed Trinity entities should have known that they were not named as defendants only because
of Plaintiffs’ mistake concerning which Trinity entity was in charge of safety, the nature of which
the Krupski court found to “clearly [be] a ‘mistake concerning the proper party’s identity.’”109

106

R. Doc. 1-1, ¶ XII, R. Doc. 27, ¶ XII (a), (e), (f), and (h).
R. Doc. 143-1.
108
R. Doc. 54-5, p. 5, R. Doc. 80-11, pp. 14, 30.
109
Krupski, 560 U.S. at 555. Darr v. Amerisure, No. 16-232, 2016 WL 5110267, *6 (M.D. La. 2016), relied upon by
Trinity Marine, is factually distinguishable. Darr involved a multi-car motor vehicle accident wherein the plaintiff
originally sued the diverse driver that caused the accident that rear-ended the plaintiff. The plaintiff then attempted
to join Colvin, a non-diverse driver whom plaintiff actually rear-ended. Colvin was known to the plaintiff from the
beginning but the plaintiff changed one of his prior allegations about Colvin’s involvement in order to join him after
removal in an attempt to defeat diversity jurisdiction. The Court held that the plaintiff failed to prove that the proposed
amendment related back pursuant to Fed. R. Civ. P. 15 because the proposed defendant was entirely new to the matter.
In contrast to the facts herein, there was no evidence in Darr of an identity of interest between Colvin and any other
of the defendants, or some other indication of Colvin’s constructive knowledge of the plaintiff’s suit, or evidence that
the plaintiff originally intended to sue Colvin but failed to due to some mistake as to his identity. Rather, the facts
107

21

Accordingly, the amendments as to these proposed defendants relate back to the original Petition
under Fed. R. Civ. P. 15(c)(1) and are not untimely or unimportant. Thus, the second Rule 16(b)
factor weighs in favor of finding good cause exists to modify the Scheduling Order to allow the
addition of both Trinity Industries and Trinity Corporate Services.
The third factor, the potential prejudice in allowing the amendments, is neutral. Although
it does not appear that the amendments to add the new Trinity entities are sought in bad faith or
would unfairly surprise the Defendants, the proposed amendments will cause some delay. This
suit was filed almost two years ago and the parties have been engaged in discovery in this court
for over eighteen months. Additionally, the fact discovery deadline (which has been extended at
least three times) has expired and, as Trinity Marine points out, the expert report and expert
discovery deadlines have also already been extended.110 Thus, the addition of Trinity Industries
and Trinity Corporate Services may require some further modification of the existing Scheduling
Order, which may increase the length and costs of this litigation to some degree.
However, the fourth factor, the availability of a continuance to cure such prejudice, weighs
in Plaintiffs’ favor, and cures virtually all potential prejudice. All parties acknowledge that if the
amendments are allowed, this court could grant a continuance of the remaining deadlines and/or
reset deadlines in this case, including the trial date, to allow the parties additional time to conduct
discovery regarding these amendments, if necessary.111 However, extensive additional discovery
may not be needed as to these entities, as they are inter-related with Trinity Marine, who has been
actively defending against Plaintiffs’ claims from the inception of the case.112 Finally, while

indicated otherwise; that is, the Darr plaintiff was aware of Colvin’s identity from the beginning (which does not by
itself prevent relation back per Krupski), but only chose to add him in order to defeat diversity jurisdiction.
110
R. Doc. 51 and R. Doc. 120.
111
The District Judge recently granted the Plaintiffs’ Motion to Continue. R. Docs. 130 and 151.
112
Indeed, Plaintiffs have stated that they anticipate seeking only limited discovery as to the new Trinity defendants.
R. Doc. 86-2, p. 7.

22

Trinity Marine’s principal complaint is that a continuance will increase the litigation costs in this
matter, Trinity Marine would have incurred those costs if Trinity Industries and Trinity Corporate
Services had been added as defendants in this litigation earlier and, as noted above, Trinity Marine
may have some responsibility for the delay in identifying the proper Trinity entities to be named.
As such, the fourth factor weighs in favor of finding that good cause exists to modify the
Scheduling Order.
In its Opposition to the Third Motion, Trinity Marine urges the Court to apply a heightened
level of scrutiny because of its pending Motion for Summary Judgment (“Summary Judgment”),113
relying on Bennett v. Consolidated Gravity Drainage Dist. No. 1, wherein the Fifth Circuit held
that a party’s attempt to raise new theories of recovery by amendment after an opposing party has
filed a motion for summary judgment should be “more carefully scrutinize[d].”114 However,
Plaintiffs’ Second Motion (seeking to add Trinity Industries, and mis-naming Trinity Corporate
Services as Trinity Industries Services) was filed on March 31, 2018, before Trinity Marine’s April
25, 2018 Summary Judgment.115 Further, it is unclear how the addition of the new entities would
affect Trinity Marine’s LHWCA immunity—the basis for the Summary Judgment.
After conducting the four-factor analysis set forth in S&W Enterprises, L.L.C. v.
SouthTrust Bank of Alabama, NA,116 Plaintiffs have shown that good cause exists to modify the
Scheduling Order with respect to the deadline for filing amended pleadings and adding new parties
as to Trinity Industries and Trinity Corporate Services. The balance of the competing interests

R. Doc. 85. Therein, Trinity Marine seeks immunity from Plaintiffs’ claims under the LHWCA.
648 Fed. Appx. 425, 429 (5th Cir. 2016) (citations omitted).
115
R. Docs. 56 and 85. In its Opposition to the Second Motion, Trinity Marine also urged the Court to apply this
heightened standard of review, although it had not yet filed its Summary Judgment, because Trinity Marine allegedly
notified Plaintiffs of its intent to file its Summary Judgment. See R. Doc. 80, p. 4. In Bennett, the heightened standard
was applied after an actual motion was filed. This Court declines to extend Bennett to the mere suggestion of the
filing of such a motion.
116
315 F.3d 533, 536 (5th Cir. 2003).
113
114

23

and equities weigh in favor of modifying the Scheduling Order with respect to adding Trinity
Industries, Inc. and Trinity Corporate Services, LLC, as defendants in this matter.117
The Correction of Plaintiff’s Name
While Plaintiffs do not assert much argument in support of their request to correct
Plaintiff’s name, or provide the reasons for the untimeliness of this proposed amendment,118 the
Court finds that it is important for the names of the Plaintiffs to be correct. Further, the correction
is not prejudicial to Defendants, who have not opposed this particular amendment. Accordingly,
the balance of the competing interests and equities again weighs in favor of modifying the
Scheduling Order to allow for an amendment that corrects Plaintiff’s name from “Estevan Lopez
Coello” to “Jose Esteban Lopez Coello.”
2. Plaintiffs Have Shown that Good Cause Exists Under Fed. R. Civ. P. 15(a) To Allow
These Amendments
Finding that Plaintiffs have demonstrated that good cause exists to modify the Scheduling
Order, the Court must apply the more liberal standard of Fed. R. Civ. P. 15(a) to determine whether
leave to amend the Complaint should be granted or denied. Rule 15(a) provides that leave to
amend “shall be freely given when justice so requires.” The court liberally construes Rule 15(a)
in favor of amendment.119 Although leave to amend should not be automatically granted, “A
district court must possess a substantial reason to deny a request for leave to amend.” 120 In
determining whether to grant leave, a court may consider several factors, including, “undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

117

The Revised Third Amended Complaint appears to adequately allege the citizenship of the new Trinity Defendants.
R. Doc. 143-7.
118
R. Doc. 103-1, p. 5.
119
See Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981) (“[T]he liberal position of the federal rules
on granting amendments . . . evinces a bias in favor of granting leave to amend”).
120
Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (quotations omitted).

24

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, [and] futility of amendment . . . .”121
Granting Plaintiffs leave to amend their Complaint is proper under Rule 15 as to the
foregoing amendments for the same reasons as those supporting a finding of good cause under
Fed. R. Civ. P. 16 to modify the scheduling order. Plaintiffs’ Second and Third Motions will be
granted to the extent they seek leave to add Trinity Industries, Inc. and Trinity Corporate Services,
LLC, and to correct Plaintiff’s name.
B. Plaintiffs’ Request to Add Legrand and Pass & Seymour, Claims of Joint and
Solidary Liability of Defendants, and Negligence Claims against the Trinity Entities
1. Plaintiffs Have Not Shown That Good Cause Exists to Modify the Scheduling Order
Under Rule 16(b) as to These Amendments
The Addition of Legrand
The first factor weighs heavily against Plaintiffs. Plaintiffs have not provided sufficient
explanation for why they seek leave to amend to add Legrand, an entirely new and unrelated party
(and Pass & Seymour, discussed infra), fourteen (14) months after the deadline set by the Court to
file amended pleadings when the evidence submitted reflects that Plaintiffs had knowledge of
potential issues with the cords and plugs, were provided documents naming Legrand, and were
aware of testimony regarding the plugs manufactured by Legrand, sufficient to name Legrand in a
more timely manner, if not prior to the deadline.122 As early as January 26, 2017, Plaintiffs stated
in the parties’ joint Status Report that they believed “other safety measures were lacking” in
addition to the Welder, which indicates Plaintiffs were considering other potential causes of/issues

121

Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148, 1153 (5th Cir. 1981) (quoting Foman v. Davis, 371 U.S. 178, 182,
83 S.Ct. 227, 230, 9 L.Ed. 2d 222 (1962)).
122
See Hotard Coaches, Inc. v. Caterpillar, Inc., No. 11-00488, 2013 WL 12182610, at *2 (M.D. La. May 28, 2013)
(denying motion for leave to amend when motion was filed ten months after deadline).

25

related to the accident long before they sought leave to amend.123 Other persuasive examples,
which establish that Plaintiffs knew (or should have known) of Legrand and potential issues with
the plugs and cords well before the filing of their Third Motion, include: (1) on February 17, 2017,
the parties participated in a joint inspection of the equipment involved, including the cords and
plugs, which inspection was preceded by an email from counsel that listed the specifications and
manufacturers of the parts, including the plugs, to be inspected;124 (2) in October 2017, Lincoln
Electric responded (in pertinent part) to Plaintiffs’ August 2017 Interrogatory 12: “Subject to
the…Objections, Lincoln Electric states that it is in the process of investigating the facts in this
case, including investigating whether the two extension cords were properly connected;”125 (3) in
November, 2017, Trinity Marine produced documents in response to Plaintiffs’ October 6, 2017
Request for Production 31, which contained purchase records of the equipment in the accident,
including documents which clearly and unambiguously identify “Pass & Seymour” and “Legrand”
as associated with the plugs;126 and, (4) on November 28, 2017, Plaintiffs deposed Mr. Gonzalez’s
supervisors and asked them many questions about extension cords and damage thereto. A review
of the portions of the deposition transcripts in the record clearly indicates that questions were asked
about the cords and plugs, the training of the workforce on the use of extension cords, observations
of defects in the extension cords, training on properly joining two cords, placing the correct prongs
of the connectors into the correct sockets, and the consequences of improper mating.127 Plaintiffs

123

R. Doc. 10.
R. Doc. 118-9, R. Doc. 111-1.
125
R. Doc. 111-5, p. 3. Interrogatory 12 askes, in pertinent part: “Please state your understanding of the manner and
place of attachment of each electrical cord…that was plugged into or attached to the Subject Welder at the time of the
Subject Incident….”
126
R. Doc. 118-2. Lincoln Electric avers that Trinity Marine also produced documents identifying Legrand and Pass
& Seymour and photographs of the cords and plugs in February and November 2017. See R. Doc. 111, p. 5 citing
111-3 and 111-4.
127
R. Docs. 118-3 and 118-4.
124

26

admit that they asked these questions.128 The foregoing casts serious doubt on Plaintiffs’ claim
that they only became aware that Legrand was material upon receipt of Defendants’ expert
reports.129 These facts militate strongly against a modification of the Scheduling Order to add
Legrand.
The second factor, the importance of the amendments, is neutral. On the one hand, the
amendments are important because the addition of Legrand and associated claims raises new
allegations against an entirely new defendant, which could change the course of the litigation. On
the other hand, Plaintiffs and their experts have explicitly stated that they do not agree with
Defendants’ experts’ theory and have submitted expert reports that refute it.130 Additionally,
although Plaintiffs seem to characterize the defense experts’ theory as suggesting potential liability
on the part of the Legrand, in reality, it appears that defendants’ experts’ theory is really one of
comparative fault, i.e., that Mr. Gonzalez was responsible for his own injuries because he
improperly matched the plugs.131 Therefore, the addition of Legrand at this late date is of
questionable importance. The second factor is neutral.
The third factor, the potential prejudice in allowing the amendments, weighs against
Plaintiffs. Unlike the addition of the new Trinity Defendants, which are entities related to an
existing Defendant, Legrand is an entirely new and unrelated party. Thus, Defendants potentially
face great prejudice and expense in the joinder of Legrand. The fact and expert discovery periods

128

R. Doc. 139, p. 1.
R. Doc. 103-1, pp. 1-3, R. Doc. 139, pp. 2, 5.
130
See R. Doc. 103, p. 1 (contesting the defense experts’ “scenario”), R. Doc. 138, p. 1 (arguing for rejection of
Lincoln Electric expert’s theory), and R. Doc. 118-11, p. 7 et seq.
131
R. Doc. 118, p. 1 (“The defendants and their experts have reached conclusions contrary to plaintiffs about the cause
of the electrocution, finding that the electrocution occurred as a result of decedent’s negligence in mis-mating two
extension words by placing the wrong prong of a connector on one cord in the wrong socket of a connector on the
other cord.”). See also, R. Docs. 118-9, p. 10 (“Mr. Gonzalez most likely made the improper connection at the
extension cord prior to the accident ….”).
129

27

have already been extended multiple times, and they are now closed.132 Completely re-opening
fact and expert discovery to accommodate an entirely new Defendant would cause a greater burden
on, and significantly increase the costs to, the existing Defendants, which is unwarranted in light
of what seems to be Plaintiffs’ failure to act more diligently. Thus, the third factor does not weigh
in favor of finding that good cause exists to modify the Scheduling Order.
The fourth factor, curing prejudice by continuance, is the only factor that weighs in
Plaintiffs’ favor. It does not, in light of the other factors, establish good cause to modify the
Scheduling Order. It bears noting that the analysis as to Legrand for this factor is unlike that for
the new Trinity Defendants, because any potential prejudice regarding the addition of the new
Trinity Defendants may be ameliorated by a limited continuance of the deadlines. In contrast, a
continuance if Legrand were joined would undoubtedly be lengthier.
After conducting the four-factor analysis set forth in S&W Enterprises, L.L.C. v.
SouthTrust Bank of Alabama, NA,133 Plaintiffs have not shown that good cause exists to modify
the Scheduling Order for filing amended pleadings and adding new parties with respect to the
addition of Legrand. Two factors weigh heavily against Plaintiff, and particularly, the lack of
explanation for the delay, which is the most important factor.134 “The good-cause standard will not
be satisfied if the court concludes that the party seeking relief (or that party’s attorney) has not
acted diligently in compliance with the schedule.”135 Because Plaintiffs have not shown that good
cause exists to modify the Scheduling Order under Rule 16(b) as to the addition of Legrand, the

The District Judge granted Plaintiffs’ Motion to Continue and ordered “entry of a new Scheduling Order,” without
referencing specific deadlines. R. Docs. 130, 151.
133
315 F.3d 533, 536 (5th Cir. 2003).
134
See Allergan, Inc. v. Teva Pharmaceuticals USA, Inc., No. 15-1455, 2017 WL 119633 (E.D. Tex. Jan. 12, 2017)
(“The most important factor bearing on the “good cause” inquiry under Rule 16(b)(4) is whether the party seeking to
modify the scheduling order can show that it has been diligent in pressing its claims but despite its diligence could not
reasonably have met the scheduling deadline.”)
135
6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1522.2, at 322 (3d
ed. 2010) (citing numerous cases).
132

28

Rule 15 analysis is inapplicable. Accordingly, Plaintiffs’ Third Motion will be denied to the extent
it seeks leave to add Legrand.
Negligence Claims against the Trinity Entities and Joint and Several Liability
Regarding the assertion of negligence claims against the Trinity Defendants, the first factor
weighs against Plaintiffs for the same reasons enumerated as to Legrand. The record reflects that
Plaintiffs had sufficient information pointing to the cords and the plugs to assert their proposed
negligence claims regarding this equipment to seek amendment earlier. This is even more so the
case for the joint and several liability allegation, and Plaintiffs have offered no explanation for
their delay in seeking leave to assert this allegation. As such, the first factor does not provide good
cause to modify the Scheduling Order.
The second factor, the importance of the amendments, weighs in Plaintiffs’ favor as to the
negligence claims, to some degree. Allowing Plaintiffs to assert additional claims of negligence
provides additional grounds upon which Plaintiffs may potentially recover. However, Plaintiffs’
first Amended Complaint already asserts general negligence claims against Trinity Marine, which
appear to encompass some of their newly proposed negligence claims. See, e.g., Amended
Complaint at ¶ XII:
“As owner and custodian and person in control of the premises….Trinity
Marine is liable for its actions and/or omissions, and in addition vicariously
liable for the negligent an fault-laden acts and/or omissions of its
servants…and employees…including but not limited to…the following: (i)
failing to obtain all necessary parts in order to safely, properly, and
securely….otherwise operate the IDEALARC DC 600…; (m) failing to
warn of the presence of unreasonable risk of harm, hazards, and dangers;
failing to make the presence of unreasonable risks of harm, hazards, and
dangers conspicuous, and failing to keep unreasonable risks of harm and
hazards away from those areas of the building or the work areas of the
premises used by …employees….(n) failing to warn or adequately to warn
of the presence of unreasonable risks of harm, hazards, and dangers
presented in the building or the work areas of the premises; and (o) any and

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all other negligent or fault-laden acts or omissions that may be proven
during the pendency of these proceedings.136 (emphasis added)
Thus, to the extent that some of Plaintiffs’ proposed allegations are duplicative of, or encompassed
within, the allegations already asserted, they are unimportant. Regarding joint and solidary
liability, Plaintiffs themselves have averred that this claim “may not be necessary since the nature
of the various parties’ liability vis-à-vis each other should follow as a matter of law.” 137 This
statement detracts from the importance of the proposed amendment because it recognizes that the
amendment is unnecessary. On balance, the second factor gives good cause to modify the
Scheduling Order, but only with respect to some of the proposed negligence claims.
The third factor, the potential prejudice in allowing the amendments, weighs against
Plaintiffs. The assertion of new claims against parties that have already been involved in this
litigation for years, particularly where discovery and expert deadlines have passed, is prejudicial
and costly to Defendants. Finally, the fourth factor weighs in Plaintiffs’ favor, as a continuance
could resolve the potential prejudice faced by Defendants. However, after conducting the fourfactor analysis set forth in S&W Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA,138 and in
light of the fact that the first factor is the most important, Plaintiffs have not shown good cause to
modify the Scheduling Order to extend the deadline for adding these new claims. Plaintiffs’ lack
of diligence in asserting potential new claims outweighs any potential importance. Plaintiffs’
Third Motion will be denied as to these claims.

136

R. Doc. 27.
R. Doc. 103-1, p. 7.
138
315 F.3d 533, 536 (5th Cir. 2003).
137

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2. Plaintiffs Have Not Properly Sought Leave of Court to Add Pass & Seymour
In their Second Motion to Substitute Revised Third Amended and Supplemental
Complaint, Plaintiffs attempt to add Pass & Seymour as yet another unrelated defendant.139 The
Court denies this request on two grounds. First, it is untimely, as it is well-past the scheduling
order deadline of March 17, 2017 to seek leave to add new parties.140 Additionally, the request is
procedurally improper because it was not raised pursuant to a properly-filed motion for leave to
amend pursuant to Rule 16 that sets forth good cause. Plaintiffs have not alleged any argument in
support of the untimely addition of Pass & Seymour, much less good cause. For these reasons,
Plaintiffs’ request to add Pass & Seymour will be denied.141
III.

Conclusion
Consistent with the good cause standard set forth in Fed. R. Civ. P. 16 and the liberal

standard for amending pleadings under Fed. R. Civ. P. 15(a), Plaintiffs have shown that good cause
exists for the Court to modify the Scheduling Order to allow Plaintiffs to file an appropriatelyrevised Third Amended Complaint to add Trinity Industries, Inc. and Trinity Corporate Services,
LLC, as additional defendants in this matter, and to correct the name of Plaintiff “Estevan Lopez
Coello” to “Jose Esteban Lopez Coello.” Plaintiffs have not shown good cause exists for the Court
to modify the Scheduling Order to allow Plaintiffs to add Legrand Holding, Inc. or Pass &
Seymour, Inc., to add claims of negligence against the Trinity Defendants, or to allege joint,
several, or in solido liability among Defendants.

139

R. Doc. 143, pp. 3, 5.
R. Doc. 12.
141
Even if the Court were to consider Plaintiffs’ request to add Pass & Seymour, Plaintiffs have not shown that good
cause exists under Rule 16 for the Court to modify the Scheduling Order to allow an amendment naming it. The
reasons supporting denial of leave to add Pass & Seymour are the same reasons supporting denial of leave to add
Legrand.
140

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Accordingly,
IT IS ORDERED that Plaintiffs’ [Second] Motion for Leave to Amend Complaint142 is
GRANTED IN PART to the extent it seeks leave to add Trinity Industries, Inc. as a Defendant in
this matter, and DENIED AS MOOT to the extent it seeks leave to add Trinity Industries Services,
LLC, as a defendant.
IT IS FURTHER ORDERED that Plaintiffs’ Second Motion to Substitute Plaintiffs’
Revised Third Amended and Supplemental Complaint for Damages143 is GRANTED to the extent
it seeks leave to substitute Plaintiffs’ Revised Third Amended and Supplemental Complaint at R.
Doc. 143-7 as the proposed pleading in R. Doc. 103-6, and DENIED to the extent it seeks to add
Pass & Seymour, Inc., as a defendant.
IT IS FURTHER ORDERED that, upon consideration of the Revised Third Amended
and Supplemental Complaint for Damages, Plaintiffs’ Motion for Leave to File Third Amended
and Supplemental Complaint144 is GRANTED to the extent it seeks leave to add Trinity Corporate
Services, LLC as a defendant in this matter and to correct the name of Plaintiff “Estevan Lopez
Coello” to “Jose Esteban Lopez Coello,” and DENIED in all other respects.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Expedited Hearing on Motion
for Leave to File Third Amended and Supplemental Complaint145 is DENIED AS MOOT.

142

R. Doc. 56.
R. Doc. 143.
144
R. Doc. 103.
145
R. Doc. 104.
143

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IT IS FURTHER ORDERED that, within fourteen (14) days from the date of this Ruling
and Order, Plaintiffs shall file a comprehensive amended complaint that removes: factual
allegations related to claims against Legrand and Pass & Seymour; new negligence claims against
the Trinity Defendants; and joint, several, and in solido liability claims against Defendants, and
which will become the operative complaint in this matter.
Signed in Baton Rouge, Louisiana, on August 30, 2018.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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