Katz et al v. United States of America et al

Filing 355

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER. The Court ALLOWS the Plaintiffs motion to dismiss Gulfstream Services, D. 293, ALLOWS in part and DENIES in part de Vries' motion to amend her answer, D. 294, ALLOWS McDowell's motion to amend her answer, D. 317, and DENIES Gulfstream Services' motion for summary judgment, D. 302, as moot.(McKillop, Matthew)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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DREW KATZ et al.,
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Plaintiffs,
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v.
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SPINIELLO COMPANIES et al.,
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Defendants.
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Civil Action No. 16-11380
SK TRAVEL, LLC,
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Third-Party Plaintiff,
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v.
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UNITED STATES OF AMERICA,
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Third-Party Defendant.
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__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

May 8, 2018

Introduction
Plaintiffs Drew Katz and Melissa Silver (“Plaintiffs”), individually and as the co-personal

representatives of the estate of Lewis A. Katz, have filed this lawsuit against several defendants
including Gulfstream Services (also sometimes referred to as Gulfstream Aerospace Services
Corporation), Arizin Ventures LLC (“Arizin”), Spiniello Companies (“Spiniello”), Carol
McDowell in her capacity as personal representative of the Estate of James McDowell
(“McDowell”) and Shelly de Vries in her capacity as personal representative of the Estate of Bauke
de Vries (“de Vries”). D. 229. The Plaintiffs voluntarily moved to dismiss Gulfstream Services.
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D. 293. Subsequently, de Vries moved to amend her answer to add crossclaims against Gulfstream
Services and Arizin. D. 294. In the event that the Court does not allow the Plaintiff’s motion to
dismiss Gulfstream Services, Gulfstream Services has moved for summary judgment. D. 302.
McDowell then moved to amend her answer to add crossclaims against Arizin. D. 317. For the
following reasons, the Court ALLOWS the Plaintiffs’ motion to dismiss Gulfstream Services, D.
293, ALLOWS in part and DENIES in part de Vries’ motion to amend her answer, D. 294,
ALLOWS McDowell’s motion to amend her answer, D. 317, and DENIES Gulfstream Services’
motion for summary judgment, D. 302, as moot.
II.

Relevant Factual Background
These allegations are taken from the operative complaint, D. 229. This action arises out of

the death of Lewis Katz in the crash of a Gulfstream G-IV airplane (the “Subject Aircraft”) at the
Laurence G. Hanscom Field in Bedford, Massachusetts on May 31, 2014. D. 229 ¶ 1. The
Plaintiffs are the children and co-personal representatives of Lewis Katz. D. 229 ¶ 6. James
McDowell and Bauke de Vries were the two pilots of the Subject Aircraft at the time of the crash.
D. 229 ¶¶ 10-11. Arizin, at the time of the crash, had leased the Subject Aircraft from SK Travel
LLC pursuant to a lease agreement. D. 229 ¶ 9. The complaint alleges that Gulfstream Services
participated in the inspection and certification of certain components of the Subject Aircraft prior
to the crash. D. 229 ¶¶ 119-121.
III.

Relevant Procedural History
On August 10, 2017, the Plaintiffs filed the now-operative (corrected) second amended

complaint. D. 229. On August 21, 2017, McDowell filed her answer along with crossclaims
against the United States and de Vries filed her answer along with crossclaims against the United
States. D. 233, D. 243. On September 11, 2017, SK Travel filed crossclaims against Arizin for

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contribution and indemnification under the lease agreement. D. 263. On February 1, 2018,
McDowell was deposed. D. 326 at 3. Throughout this litigation, there has been motion practice,
the parties have been conferring about discovery-related matters and there have been numerous
status conferences. D. 231, 285, 296, 345, 346.
On February 9, 2018, the Plaintiffs moved to dismiss Gulfstream Services. D. 293. On
the same day, de Vries moved to amend her answer to add crossclaims against Gulfstream Services
and also Arizin. D. 294. On February 22, 2018, Gulfstream Services moved for summary
judgment. D. 302. On February 27, McDowell moved to amend her answer to add crossclaims
against Arizin. D. 317. On April 30, 2018, the Court heard argument regarding the two motions
to amend, D. 294, D. 317, and took the matters under advisement. D. 346.
IV.

Standard of Review
As the parties recognize, because both motions to amend come after the May 31, 2017

deadline set by this Court for amending the pleadings, D. 195, de Vries and McDowell must show
“good cause” for the filing of the amended answer. Fed. R. Civ. P. Rule 16(b)(4); Kane v. Town
of Sandwich, 123 F. Supp. 3d 147, 158 (D. Mass. 2015). The “good cause” standard “emphasizes
the diligence of the party seeking the amendment,” although “prejudice to the opposing party
remains relevant but is not the dominant criterion.” Id. (quoting O’Connell v. Hyatt Hotels of P.R.,
357 F.3d 152, 154 (1st Cir. 2004)). “[I]ndifference” by the movant to the case warrants denial of
a motion to amend “irrespective of prejudice because such conduct is incompatible with the
showing of diligence necessary to establish good cause.” O’Connell, 357 F.3d at 155.
V.

Motions to Amend to Add Claims Against Arizin
Both de Vries and McDowell seek to amend their answers to add crossclaims against

Arizin. De Vries contends that there is good cause to allow the amendment with respect to the

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crossclaims against Arizin because facts disclosed at the February 1, 2018 deposition of McDowell
revealed that both pilots may have been employees of SK Travel and thus that Arizin, by the terms
of its lease agreement with SK Travel, may be required to indemnify de Vries. D. 326 at 7-8.
Arizin responds that the pilots’ estates should have been on notice earlier that the pilots may have
been employees of SK Travel because the Plaintiffs, in the now-operative complaint filed back on
August 10, 2017, alleges that “SK Travel is vicariously and legally liable for the negligence of the
Pilots conducted during, and within the scope of, their employment with SK Travel.” D. 311 at 7;
D. 229 ¶ 162. That complaint also claims that the Plaintiffs were “of the position that the Pilots
were employees of Spiniello – and only Spiniello – at the time of the Subject Accident,” but alleged
“[i]n the alternative” that SK Travel employed the pilots. D. 229 ¶ 161. De Vries adds that because
the pilots’ W-2 forms came from Spiniello, and not SK Travel, it took longer for de Vries to come
to the plausible conclusion, sufficient for a good-faith crossclaim, that SK Travel was the employer
of Bauke de Vries. D. 326 at 7. Additionally, there is no prejudice to Arizin, because the
crossclaims that de Vries and McDowell seek to add are similar to the crossclaims that SK Travel
filed against Arizin in September 2017, at least to the extent that all rely on the dry lease agreement
between SK Travel and Arizin that purportedly results in Arizin being liable for the underlying
accident. D. 263 at 7-8; D. 295-7 at 95-96; D. 316-2 at 97. Moreover, as described above, de
Vries and McDowell have not demonstrated the type of “indifference” to the proceedings that
should foreclose consideration of any lack of prejudice. O’Connell, 357 F.3d at 155. The Court
ALLOWS the motions to amend as to the crossclaims against Arizin, D. 294, D. 317.
VI.

Motion to Amend to Add Claims Against Gulfstream Services
De Vries also seeks to amend her answer to add crossclaims against Gulfstream Services.

She contends that there is also good cause to allow the amendment with respect to these
crossclaims because she recently identified additional facts that would support a crossclaim against
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Gulfstream Services. D. 326 at 9. She does not, however, identify when she learned the specific
facts that justified the late addition of crossclaims against Gulfstream Services, as she did with
Arizin, and thus does not show good cause for delay in asserting the crossclaims, particularly
where the facts underlying those crossclaims – Gulfstream Service’s role in inspecting and
certifying the aircraft – were pled in the operative complaint, filed in August 2017. D. 229 ¶¶ 119121; D. 295-7 at 91-94.
Even if the question of reasonable diligence is a close call as to this proposed amendment,
the relevant consideration of prejudice is stronger as to Gulfstream Services. Gulfstream Services
contends that it would be prejudiced by the late amendment because it is, due to the Plaintiff’s
voluntary motion to dismiss claims against it, about to be out of this case entirely. D. 312 at 8-9.
See In re Giza, 441 B.R. 395, 401 (Bankr. D. Mass. 2011) (finding prejudice where a party would
have been forced back into a case if the motion to amend were granted). While prejudice is not
“the dominant criterion,” it remains “relevant” to the determination of good cause under Rule
16(b). O’Connell, 357 F.3d at 155. In light of de Vries’ failure to show good cause for delay and
the showing of prejudice by Gulfstream Services, de Vries’ motion to amend is DENIED with
respect to the crossclaims against Gulfstream Services.1
VII.

The Plaintiffs’ Motion to Dismiss Gulfstream Services
The Plaintiffs’ voluntary motion to dismiss Gulfstream Services, D. 293, is ALLOWED.

VIII. Gulfstream’s Motion for Summary Judgment
Given the Court’s ruling allowing the dismissal of Gulfstream Services, Gulfstream
Service’s motion for summary judgment, D. 302, is DENIED as moot.

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Because the Court denies the motion to amend on this ground, the Court does not reach
whether such an amendment would also be futile, as Gulfstream Services further contends. D. 312
at 9-13.
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IX.

Conclusion
For the foregoing reasons, the Court ALLOWS the Plaintiffs’ motion to dismiss Gulfstream

Services, D. 293, ALLOWS in part and DENIES in part de Vries’ motion to amend her answer,
D. 294, ALLOWS McDowell’s motion to amend her answer, D. 317, and DENIES Gulfstream
Services’ motion for summary judgment, D. 302, as moot.
So Ordered.
/s/ Denise J. Casper
United States District Judge

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