TGL Marine Holdings, ULC v. Nicholson Terminal & Dock Company

Filing 61

OPINION and ORDER Granting Plaintiff's 48 MOTION for Leave to File Amended Complaint - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TGL Marine Holdings, ULC,
Plaintiff,
v.

Case No. 13-cv-14734
Hon. Judith E. Levy
Mag. Judge Paul J. Komives

Nicholson Terminal & Dock Co.,
Defendant / Third-Party
Plaintiff,
v.
Dean Marine & Excavating, Inc.,
et al.,
Third-Party Defendants.
________________________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO FILE AMENDED COMPLAINT [48]
This matter is before the Court on Plaintiff TGL Marine Holdings,
ULC’s Motion for Leave to File an Amended Complaint. (Dkt. 48.) TGL
timely filed its motion before the date set by the Court for the addition
of parties.

(See Dkt. 39, Scheduling Order.)

TGL seeks to add as

defendants Dean Marine & Excavating, Inc., and DME Leasing, LLC

(“DME defendants), both of which are already third-party defendants in
this case.

TGL raises claims for negligence and breach of contract

against the DME defendants. (Dkt. 48-2, Proposed Amend. Compl. 2123.) TGL also seeks to add as defendants Benchmark Aviation Marine,
LLC and James Nisbet (“Nisbet defendants”), raising a negligence claim
against both.

(Id. at 23.)

Defendant Nicholson Terminal & Dock

Company opposes only the addition of the Nisbet defendants and the
relevant claim against them. (Dkt. 55.) For the reasons set forth below,
the Court will grant the motion.
I.

Standard
At this point in the case, TGL may only amend its complaint with

Nicholson’s written consent or with leave of the Court. See Fed. R. Civ.
P. 15(a)(1)-(2).

“The court should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a)(2). Absent “undue delay, bad faith, or
dilatory motive . . . repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party . . . [or]
futility of amendment . . . the leave sought should, as the rules require,
be freely given.” Foman v. Davis, 371 U.S. 178, 182 (1968) (holding
absent).
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II.

Analysis
A.

DME defendants

The DME defendants have already been added as third-party
defendants to this case, and no party objects to TGL’s proposed addition
of claims directly against the DME defendants. TGL’s motion will be
granted as to its proposed negligence and breach of contract claims
against the DME defendants.
B.

Nisbet defendants

TGL seeks to add a negligence claim against the Nisbet
defendants. (Dkt. 48-2, Proposed Amend. Compl. ¶¶ 84-87.) Nicholson
maintains this claim would be futile, as TGL has failed to allege the
Nisbet defendants owed a duty of care to TGL. (Dkt. 55, Nicholson
Resp. 7-9.)
In fact, TGL alleges the Nisbet defendants owed a duty of care on
two separate bases: (1) as an agent of Nicholson, and (2) as having
voluntarily assumed a duty to warn TGL of power loss, flooding, and
heat problems at Nicholson’s Ecorse dock. (Dkt. 48-2, Proposed Amend.
Compl. ¶ 85.)
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“The liability of an agent for his own negligence has long been
imbedded in the law.”

Robert C. Herd & Co. v. Krawill Machinery

Corp., 359 U.S. 297, 304 (1959) (quoting Brady v. Roosevelt S.S. Co., 317
U.S. 575, 580 (1943)); accord Baranowski v. Strating, 72 Mich. App.
548, 560 (1976) (holding agent “is personally liable for torts in which he
actively participated, including negligence”) (internal citations omitted).
But an agent “is subject to liability to a third party only when the
agent’s conduct breaches a duty that the agent owes the third party.”
Rest. (3d) Agency § 7.02, cmt. b. Such a duty arises, for example, when
the agent has control of property that is the subject of the negligence
claim. Bannigan v. Woodbury, 158 Mich. 206, 207 (1909) (holding that
“[a]n agent in the control of property is responsible for his own tortious
acts.”).
Here, TGL has alleged the Nisbet defendants, as the agent of
Nicholson, owed TGL a wharfinger’s duty. TGL has further alleged that
the Nisbet defendants were at least partly responsible for maintaining
electrical power at the Ecorse dock, supervised emergency measures at
the dock beginning January 20, 2013, and was responsible for warning
TGL of power and heat issues at that time.
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(Dkt. 48-2, Proposed

Amend. Compl. ¶¶ 19, 23-25.) TGL has alleged the Nisbet defendants
had sufficient control of the Ecorse dock to establish a duty of care owed
by the Nisbet defendants to TGL.
TGL has also sufficiently alleged that the Nisbet defendants
voluntarily assumed a duty of care to TGL. Under Michigan law, “[a]
party may be under a legal duty when it voluntarily assumes a function
that it is not legally required to perform” and must then perform the
duty “with some degree of skill and care.” Zychowski v. A.J. Marshall
Co., 233 Mich. App. 229, 231 (1998).

Here, TGL alleges the Nisbet

defendants voluntarily assumed supervision of emergency measures
related to loss of power, flooding, and heat issues at Nicholson’s Ecorse
dock, beginning January 20, 2013. (Dkt. 48-2, Proposed Amend. Compl.
¶ 85.) TGL further alleges the Nisbet defendants voluntarily undertook
to warn the relevant persons about those power, flooding, and heat
issues. (Id.)
In sum, Nicholson has not shown that TGL’s proposed negligence
claim against the Nisbet defendants would be futile.

Nicholson has

likewise failed to show undue delay, bad faith, or dilatory motive on
TGL’s part, or undue prejudice to Nicholson.
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III. Conclusion
Accordingly, TGL’s Motion to File an Amended Complaint (Dkt.
48) is GRANTED.
IT IS SO ORDERED.
Dated: April 15, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on April 15, 2015.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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