AMERICAN AERIAL SERVICES INC v. TEREX USA LLC et al
Filing
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ORDER ON MOTION TO AMEND granting in part and denying in part 26 Motion to Amend. REMINDER: After entry of this Order, counsel are REQUIRED to separately file the AMENDED COMPLAINT Document. By JUDGE GEORGE Z. SINGAL. (lrc)
UNITED STATES DISTRICT COURT
District of Maine
AMERICAN AERIAL SERVICES,
INC.,
Plaintiff,
v.
TEREX USA LLC, ET AL,
Defendants.
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No. 2:12-cv-00361-GZS
ORDER ON MOTION TO AMEND
Before the Court is that Plaintiffs’ Motion to Amend (ECF No. 26). As briefly explained
herein, the Motion is GRANTED IN PART AND DENIED IN PART.
Generally, under Rule 15, a court is instructed to allow amendment of a complaint “freely .
. . when justice so requires.” Fed. R. Civ. P. 15(a)(2). In this case, Plaintiff filed the pending
motion to amend, in order to address issues that led the Magistrate Judge to recommend
dismissal of various claims over Plaintiff’s objections. As Plaintiff’s Motion points out, the
Recommended Decision, which this Court has now affirmed, invited a motion to amend the
complaint, at least as to its claim for Intentional Misrepresentation/Fraud.1 As to that claim, the
Recommended Decision found the original complaint failed to comply with Rule 9(b)’s
requirement that “the circumstances constituting fraud or mistake shall be stated with
particularity.” Fed. R. Civ. P. 9(b). However, the Recommended Decision also stated:
If American Aerial filed a motion to amend and the proposed amended complaint
actually complied with Federal Rule 9(b) there would be no reason to deny a motion
to amend, but no such proposed amended complaint has been submitted to the court.
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This claim was Count VI in the original complaint and is stated in Counts III & IV of the proposed amended
complaint.
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Accordingly, my recommendation is that [this] count be dismissed. If American
Aerial wishes to submit a motion to amend in conjunction with an objection to this
recommendation, it is certainly free to do so.
(Recommended Decision (ECF No. 21) at 8-9.) Given this procedural history, the only question
with respect to Plaintiff’s request to file an amended Intentional Misrepresentation claim is
whether the proposed Amended Complaint states the circumstances constituting the alleged
fraud with particularity, as required by Rule 9(b). The Court finds that the proposed Amended
Complaint satisfies this standard. Therefore, the Court will allow Plaintiff to file the Amended
Complaint and proceed with the amended Counts III & IV, which state intentional
misrepresentation claims against Terex and Empire Crane respectively.
In opposing the Motion to Amend the Complaint regarding the intentional
misrepresentation claims, Defendants argue that even as amended such a claim would be futile
because the claim is barred under Maine’s economic loss doctrine.
However, as Plaintiff
correctly argues in its Reply (ECF No. 30), the applicability of the economic loss doctrine to a
claim of intentional misrepresentation is “open . . . under Maine law.” (Reply at 2.) In the
Court’s view, a motion to amend is not a proper vehicle for this Court to resolve an open
question of state law. Rather, the existence of an open question of law means that the claim is
necessarily not futile, which is the applicable standard of review on a motion to amend.
Defendants are certainly free to renew their arguments regarding the applicability of the
economic loss doctrine via additional motion practice.
However, the Court will not deny
Plaintiff’s Motion to Amend based on a prediction that Maine might find the claims alleged in
Counts III & IV to be barred by economic loss doctrine. Compare Camden Nat. Bank v. D & F
Properties, LLC, No. BCD-WB-RE-10-16, 2011 WL 6131122 (Me. Super. Ct. Oct. 3, 2011)
(finding the economic loss doctrine “does not apply applies to claims of misrepresentation”) with
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Maine-ly Marine Sales & Serv., Inc. v. Worrey, CIV.A. CV-04-369, 2006 WL 1668039 (Me.
Super. Apr. 10, 2006) (dismissing fraud and misrepresentation claims pursuant to the economic
loss doctrine “where a claimant is complaining about a defective product and the sole damage is
to the product itself”).
Having found that Plaintiff may amend its complaint to revive claims against both
Defendants for intentional misrepresentation, Plaintiff also argues that it should be allowed to
amend its complaint to reinstate its claims for punitive damages. Defendant’s sole argument
against allowing the amended complaint to state a claim for punitive damages is inextricably tied
to its arguments seeking to block Counts III & IV.
Therefore, the Court concludes that
Plaintiff’s stated claim for punitive damages is not futile in light of the allowed amended claims
for intentional misrepresentation and fraud.2
Lastly, Plaintiff seeks to amend its complaint to restate a claim for breach of good faith
and fair dealing in Count II of its proposed amended complaint. The arguments presented by the
parties in connection with Count II were previously briefed in connection with the
Recommended Decision, which this Court affirmed. Therefore, Plaintiff’s request to reinstitute
its independent claims for breach of good faith and fair dealing might be more properly viewed
as a motion for reconsideration. Regardless of the most appropriate procedural lense, the Court
concludes that an amendment allowing Plaintiff to state a claim for breach of good faith and fair
dealing would be futile and fails to state a claim as a matter of law. It is true that the Maine
Uniform Commercial Code imposes a duty of good faith on every applicable contract. See 11
M.R.S.A § 1-1304 (“Every contract or duty within the Uniform Commercial Code imposes an
obligation of good faith in its performance and enforcement.”) However, Plaintiff has not
2
In order to obtain punitive damages against either Defendant, Plaintiff necessarily would have to be awarded
damages on Counts III or IV as well as be able to prove malice by clear and convincing evidence. See DiPietro v.
Boynton, 628 A.2d 1019, 1024-26 (Me. 1993).
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provided the Court with a single Maine case interpreting this section as allowing a standalone
claim for breach of good faith and fair dealing in addition to a claim for breach of contract.
Plaintiff is free to pursue any alleged breach of good faith and fair dealing as part of the breach
of contract claims pled in Count I. However, on the argument and record presented, the Court
will not allow Plaintiff to revive its already dismissed claim for breach of good faith and fair
dealing as stated in Count II of the proposed amended complaint.
For the reasons just explained, Plaintiff’s Motion to Amend is GRANTED IN PART
AND DENIED IN PART. Plaintiff is directed to file the proposed amended complaint and the
case shall proceed on the claims stated in Counts I, III, IV & V of that Amended Complaint.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 7th day of May, 2013.
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