Robinson v. Express Freight, Inc. et al
Memorandum Opinion and Order granting 138 MOTION for Review of Magistrate Judge Order dated 6/26/17; setting aside 133 Order granting Motion to Amend/Correct. The motion of Franklin/Double J to amend to add claims against UPS and Lovelace is denied on the basis of futility. Signed by District Judge Tom S. Lee on 9/19/17 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
H.R., A MINOR CHILD WHO SUES BY AND
THROUGH HER MOTHER AND NEXT FRIEND,
KIMBERLY ROBINSON, INDIVIDUALLY AND
ON BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF BILLY ROBINSON, DECEASED
CIVIL ACTION NO. 3:16CV655TSL-RHW
DOUBLE J LOGISTICS, LLC, A CORPORATION;
SKYMILE LOGISTICS, INC., A CORPORATION;
DERRICK A. FRANKLIN, AN INDIVIDUAL;
ZEWDIE D. DUGDA, AN INDIVIDUAL AND
JOHN DOES I-X
WITH CROSS-CLAIMS AND COUNTERCLAIMS
DERRICK A. FRANKLIN, AN INDIVIDUAL
AND DOUBLE J LOGISTICS, LLC,
ZEWDIE D. DUGDA, AN INDIVIDUAL,
SKYMILE LOGISTICS, INC., A CORPORATION
THE WRONGFUL DEATH
BENEFICIARIES OF BILLY ROBINSON, DECEASED,
BY AND THROUGH H.R., A MINOR
UNITED PARCEL SERVICE, INC.
MEMORANDUM OPINION AND ORDER
Third-party defendant United Parcel Service, Inc. (UPS) has
filed objections to the magistrate judge’s June 26, 2017 order
granting the motion of counter/cross-plaintiffs Derrick A.
Franklin and Double J Logistics, LLC (Double J) to amend to add
claims against UPS and UPS driver/employee Brad Lovelace.
Franklin and Double J have responded in support of the magistrate
The court, having considered the memoranda of
authorities, together with the record in this cause, concludes the
magistrate judge’s order should be vacated.
The court further
concludes that the motion to amend should be denied.
This case arises from a vehicle accident involving three
tractor-trailer rigs which resulted in the death of Billy
Around 3:45 a.m. on August 11, 2016, defendant
Franklin, while traveling eastbound on Interstate 20 in a tractortrailer rig owned by Double J, struck the rear of a tractortrailer owned by Skymile Logistics and operated by Zewdie Dugba.
According to the complaint filed by Billy Robinson’s wrongful
death beneficiaries, following this collision, both vehicles
stopped in the right lane of the interstate.
Billy Robinson, an
employee of UPS operating a UPS tractor-trailer eastbound on I-20,
approached the accident scene and was unable to avoid the Franklin
and Dugba vehicles.
His vehicle collided with the rear of
Franklin’s vehicle, and as a result of the collision, Billy
Robinson was killed.
Robinson’s heirs brought this action seeking to recover
damages for his alleged wrongful death.
Along with their answers,
Dugba/Skymile and Franklin/Double J filed cross-claims against
each other, counterclaims against Robinson’s heirs alleging
Robinson was negligent in failing to avoid the collision, and
third-party complaints against UPS alleging UPS was vicariously
liable for Robinson’s negligence.1
In February 2017, Brad Lovelace, a UPS driver, was deposed.
Lovelace testified that in the early morning hours of August 11,
2016, he departed the UPS facility in Jackson headed to
Tuscaloosa, Alabama via I-20 East.
As he approached the Lake
exit, it was very dark and visibility was limited.
He noticed a
car in front of him in the right lane suddenly brake hard and move
to the left, which indicated a hazard ahead.
managed to avoid a collision with the Franklin/Double J and
He testified that when he came up on the
trailers, there was “no lighting on whatsoever.
No marker lights,
no caution lights, no flashers going, and they did not have any of
their reflective triangles out behind the vehicle.”
the wreck, Lovelace continued on his way.
Lovelace testified that
at that time, he was aware that there were other UPS tractortrailers traveling eastbound on I-20, some distance behind him,
those vehicles having been dispatched from the UPS hub in Jackson
close to the time he was dispatched.
When asked, he stated he did
not radio these other drivers to alert them to the hazard since he
did not have a CB radio in his truck and he did not have phone
Defendants also alleged various direct negligence claims
against UPS. However, since UPS admitted it would be vicariously
liable for any negligence by Robinson, those claims were dismissed
as redundant by order entered April 11, 2017.
numbers for any of these other drivers so could not contact them
He further stated that he did not call his supervisor
to let him know there was a hazard in the roadway.
In light of Lovelace’s testimony, Franklin/Double J moved to
amend their third-party complaint to (1) add Lovelace as a
defendant based on allegations that he was negligent in failing to
communicate with his fellow UPS drivers to warn them of the
Dugda-Franklin collision; and (2) add claims against UPS of
vicarious liability for Lovelace’s negligence and for its own
independent negligence in (a) failing to provide a radio or other
communications system or other equipment for the use of its
drivers to warn and alert other UPS drivers who might be
approaching a hazard in their path of travel and (b) failing to
implement and train its drivers on reasonable safety policies,
procedures and/or protocols, including communication between
fellow UPS drivers, to alert its drivers of potentially hazardous
UPS opposed the motion to amend on the bases of futility and
In granting the motion to amend, the magistrate
judge did not consider or reject UPS’s arguments in opposition to
the motion, including, in particular, its futility objection.
Rather, he determined to “make no finding regarding Defendants’
arguments on the substantive merits of the proposed amended
complaint,” reasoning that “[t]he more proper course would be to
test the allegations and claims in the context of a dispositive
He thus concluded that the motion to amend should be
granted, since it was timely filed, and given the liberal
UPS contends on its present motion for review
that it presented meritorious arguments in opposition to the
motion to amend which the magistrate judge failed to even
UPS submits, therefore, that the ruling was clearly
erroneous and/or contrary to law.
Pursuant to 28 U.S.C. § 636, a magistrate judge may hear and
determine pretrial non-dispositive matters.
The court’s review of
a magistrate judge's order on a non-dispositive motion is under a
“clearly erroneous or contrary to law” standard.
See Fed. R. Civ.
P. 72(a) (upon objection by party to magistrate judge’s ruling on
nondispositive pretrial matter, “[t]he district judge to whom the
case is assigned shall consider such objections and shall modify
or set aside any portion of the magistrate judge's order found to
be clearly erroneous or contrary to law.”); 28 U.S.C. §
636(b)(1)(A) (district judge “may reconsider any pretrial matter
... where it has been shown that the magistrate judge's order is
clearly erroneous or contrary to law.”).2
A factual finding is
The magistrate judge’s authority with respect to
dispositive motions is more limited: He may make only a
recommended disposition, which the district judge must review de
novo in the event of an objection and which the district judge
“may accept, reject, or modify”. Fed. R. Civ. P. 72(b)(3); 28
U.S.C. § 636(b)(1).
clearly erroneous “when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct.
1504, 1511, 84 L. Ed. 2d 518 (1985) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542,
92 L.Ed. 746 (1948)).
The magistrate judge’s legal conclusions
are reviewed de novo.
Moore v. Ford Motor Co., 755 F.3d 802, 806
(5th Cir. 2014).
See also Ambrose-Frazier v. Herzing Inc., No.
15-1324, 2016 WL 890406, at *2 (E.D. La. Mar. 9, 2016) (“A legal
conclusion is contrary to law when the magistrate fails to apply
or misapplies relevant statutes, case law, or rules of
procedure.”) (internal quotation marks and citation omitted).
Rule 15(a) of the Federal Rules of Civil Procedure provides
that “[t]he court should freely give leave [to amend] when justice
The Fifth Circuit has identified the following
factors for the court to consider in deciding whether to grant
leave to amend: “(1) undue delay, (2) bad faith or dilatory
motive, (3) repeated failure to cure deficiencies by previous
amendment, (4) undue prejudice to the opposing party, and
(5) futility of the amendment.”
Smith v. EMC Corp., 393 F.3d 590,
595 (5th Cir. 2004) (citations omitted).
Here, no contention was
made that there were any issues related to delay or bad faith; and
UPS agreed this was Franklin/Double J’s first attempt to amend
UPS argued that the motion to amend should be
denied as futile and creating undue prejudice, and further because
it was not a proper third-party claim.
Some courts have found a magistrate judge’s failure to fully
consider a defendant’s specific objections to a motion to amend
would constitute error, and potentially reversible error, if there
was merit to the objection.
See, e.g., Jones v. Casey's Gen.
Stores, 538 F. Supp. 2d 1094, 1101 (D. Iowa 2008) (finding that
“magistrate judge erred in not fully and explicitly considering
Defendants' argument of undue delay and prejudice,” but finding
that this did not warrant reversal where the defendant failed to
establish that granting motion to amend was in fact prejudicial to
it); cf. Illinois Nat. Ins. Co. v. Nordic PLC Const., Inc., No.
CIV. 11-00515 SOM, 2013 WL 1337007, at *4 (D. Haw. Mar. 28, 2013)
(magistrate judge’s failure to fully consider non-movant’s
arguments regarding undue delay and prejudice “would be reversible
error only if the party opposing the motion for leave to amend
satisfied its burden of establishing prejudice”).
Some courts have also held that a magistrate judge lacks
authority to consider a motion to amend to which objection is made
based on futility, though there is a divergence of opinions on
In Thornton v. Blake, No. CIVA 308CV775HTW-LRA, 2009
WL 5064753 (S.D. Miss. Dec. 16, 2009), Magistrate Judge Anderson
found that a ruling on a defendant’s futility objection in
response to a motion to amend would be “premature”; but she went
on to state that a finding of futility by her in the context of a
motion to amend
would be tantamount to this Magistrate Judge making a
dispositive ruling. The legal issues set forth in these
memoranda should be presented to the district judge via
a dispositive motion, based upon the allegations
contained in the Amended Complaint. At this stage of
the litigation, the Court finds that the amendment
should be allowed. Defendants' arguments regarding the
futility of the amendment may be considered by [the
district judge] when dispositive issues are determined.
Id. at *1.
Another court has recently noted:
The law is not settled regarding whether a motion to
amend that is denied is a case-dispositive motion under
28 U.S.C. § 636. “Generally, a motion for leave to
amend the pleadings is a nondispositive matter that may
be ruled on by a magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1).” Cazares v. Morris, 2011 WL 2414543, at *2
(D. Ariz. June 16, 2011) (citing, inter alia, JJCO, Inc.
v. Isuzu Motors America, Inc., 2009 WL 3818247, *2 (D.
Haw. Nov. 12, 2009)) (magistrate judge's denial of a
motion for leave to amend complaint is not a dispositive
ruling) (citing, in turn, U.S. Dominator, Inc. v.
Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 n.1
(9th Cir. 1985)), superseded by statute on other grounds
as recognized in Simpson v. Lear Astronics Corp., 77
F.3d 1170 (9th Cir. 1996) (noting that the plaintiff's
motion for leave to amend its Complaint was properly
treated as a nondispositive motion when the magistrate
judge granted the plaintiff's motion). There are
circumstances, such as when a “magistrate judge denies a
party the opportunity to assert a new claim or
defense[,]” or “when the denial is specifically premised
on futility[,]” that courts have “view[ed] a magistrate
judge's denial of a motion for leave to amend as a
dispositive ruling.” JJCO, Inc., supra, 2009 WL
3818247, at *3 (citing cases). That “view is not
universal[,]” as the court in JJCO, Inc. astutely
observed, however. Id. at *3 (citing Hall v. Norfolk S.
Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006)) (finding a
magistrate judge's denial of a motion to amend on
grounds of futility to be nondispositive and subject to
review for clear error by the district court); Morgal v.
Maricopa County Bd. of Supervisors, 284 F.R.D. 452, 458
(D. Ariz. 2012). It does not appear that the Fifth
Circuit has ruled on this issue. However, at least one
other court in this Circuit has held that a magistrate
judge may conclusively decide a motion for leave to
amend, even one that results in a denial of leave. See
Chesapeake Louisiana, L.P. v. Innovative Wellsite
Systems, Inc., 2014 WL 4387297 n. 1 (W.D. La. Sept. 4,
Allen v. LeBlanc, No. CV 15-0600-SDD-EWD, 2017 WL 29670, at *3
(M.D. La. Jan. 3, 2017).
In this case, the magistrate judge did not explicitly state
that he was declining to consider UPS’s futility argument because
he considered that matter was (or might be) dispositive and hence
beyond his authority.
That could be a reasonable interpretation
of his ruling, particularly as he indicated that it would be “more
proper” to evaluate the merits of the claims in the context of a
In the court’s opinion, if the motion to
amend was not rendered dispositive by UPS’s futility objection,
then the magistrate judge should have fully considered UPS’s
objections and denied the motion only if he found there was no
merit to the objections.
On the other hand, if the magistrate
judge considered the motion to amend was rendered dispositive by
virtue of UPS’s futility objection, then he should have presented
his ruling as a recommendation or, alternatively, the undersigned
should have decided the motion in the first instance.
is simply that UPS was entitled to have its objections properly
And, because the court has to date failed to consider
UPS’s objections, the undersigned finds it appropriate to do so
A proposed amendment is futile if the complaint “would [not]
survive a motion to dismiss under Rule 12(b)(6), which requires
the plaintiff to allege sufficient facts to ‘raise a right to
relief above the speculative level.’”
Vallery v. Am. Girl,
L.L.C., No. 15-30472, 2017 WL 2829096, at *2 (5th Cir. June 29,
2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
While “all well-pleaded
facts are viewed in the light most favorable to the plaintiff,” a
plaintiff “must allege facts that support the elements of the
cause of action in order to make out a valid claim.”
Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 152-53 (5th
Franklin/Double J’s proposed amended complaint undertakes to
assert a negligence claim against Brad Lovelace (who is not
presently a defendant) for failing to warn UPS and/or other UPS
drivers of the alleged hazardous condition presented by the Double
J and Skymile tractor-trailers being in or partially in the lane
It also adds claims against UPS for failing to provide
communication device systems and/or equipment by which its drivers
could warn other drivers of potentially hazardous conditions
and/or failing to have a system in place by which a driver could
warn other drivers of potentially hazardous conditions and/or
failing to train its drivers on procedures for warning fellow
drivers of potential hazards in the roadway.
UPS contends that
the proposed amendments are legally insufficient and hence futile
since as a matter of established Mississippi law, “there is no
affirmative duty to aid or protect others,” Higginbotham v. Hill
Bros. Constr. Co., 962 So. 2d 46, 56 (Miss. Ct. App. 2006).3
All negligence claims have four essential elements:
“(1) duty, (2) breach, (3) causation, and (4) injury.”
Isle of Capri Natchez, Inc., 139 So. 3d 783, 787 (Miss. Ct. App.
2014) (internal quotation marks and citation omitted).
prevail in any type of negligence action, a plaintiff must first
prove the existence of a duty.”
Enter. Leasing Co. S. Cent. v.
Bardin, 8 So. 3d 866, 868 (Miss. 2009) (citing Laurel Yamaha, Inc.
v. Freeman, 956 So. 2d 897, 904 (Miss. 2007)).
See also Doe v.
Hunter Oaks Aptx., L.P., 105 So. 3d 422, 424 (Miss. Ct. App. 2013)
(”It is basic tort law that before one can be found negligent he
must owe a duty to the injured party.”) (internal quotation marks
and citation omitted).
The determination of whether a duty exists
is a question of law to be determined by the court, not a question
of fact for the jury.
Griffith v. Entergy Miss., Inc., 203 So. 3d
Since jurisdiction is based on diversity of citizenship,
the substantive law of the forum state, Mississippi, controls.
Ill. Cent. R.R. Co. v. Cryogenic Transp., Inc., 686 F.3d 314, 316
(5th Cir. 2012).
579, 585 (Miss. 2016); Doe v. Hunter Oaks Apts., L.P., 105 So. 3d
422, 425 (Miss. Ct. App. 2013).
As UPS notes, Mississippi courts hold to “the general rule
... that ‘[an] actor’s realization that action on his part is
necessary for another’s aid or protection does not of itself
impose upon him a duty to take such action.’”
Bourque, 158 So. 3d 384, 390 (Miss. Ct. App. 2015) (quoting Long
v. Patterson, 198 Miss. 554, 561, 22 So. 2d 490, 492 (1945), in
turn quoting Restatement (First) of Torts § 314 (1934))4.
Long, the court wrote that, “[w]hatever we may think of this as a
moral proposition,” there is “no duty imposed by law upon any
person to warn another of an approaching of impending danger to
the latter, when the person sought to be charged had and has
nothing to do with putting into operation, or with the continuance
in operation of, the dangerous agency which approaches....”
198 Miss. at 561, 22 So. 2d at 492.
“[T]his rule is applicable
even in cases in which the third person's conduct is made possible
only because the defendant has relinquished control of his
property to the third person, at least if the defendant has no
reason to believe that the third person is incompetent to manage
Permenter v. Milner Chevrolet Co., 229 Miss. 385, 398, 91
So. 2d 243, 248–49 (1956).
The language of the Restatement (Second) of Torts § 314
(1965) is identical.
There are exceptions to this general rule, one of which is
that the existence of a special relationship may, in certain
circumstances, give rise to a duty to protect.
In this vein, the
Mississippi Supreme Court has cited with approval § 315 of the
Restatement of Torts, which states:
There is no duty so to control the conduct of a third
person as to prevent him from causing bodily harm to
(a) a special relation exists between the actor and the
third person which imposes a duty upon the actor to
control the third person's conduct, or
(b) a special relation exists between the actor and the
other which gives to the other a right to protection.
Restatement (First) of Torts § 315 (1934).
See Permenter v.
Milner Chevrolet Co., 229 Miss. 385, 398, 91 So. 2d 243, 248
(1956) (quoting Restatement); see also Tanks v. NEAS, Inc., 519 F.
Supp. 2d 645, 653 (S.D. Miss. 2007) (exceptions to rule that there
is no duty to control another’s conduct in order to protect a
third person from harm, are recognized in situations where a
special relationship between two persons “gives the one a definite
control over the actions of the other” or “a special relationship
exists which imposes a duty upon one to control the actions of
another,” or “where a special relationship gives a third person a
right to protection.”) (internal quotation marks and citation
omitted); Younger v. Hale, No. CIVA 3:04CV786DCBJCS, 2006 WL
2375052, at *4 (S.D. Miss. Aug. 14, 2006) (recognizing Restatement
§ 315 as exception to general principle that a person has no duty
to control the conduct of a third person).
Here, there is nothing in the complaint to suggest that
either UPS or Lovelace had any sort of relationship with
Franklin/Double J that could possibly have given rise to a duty to
protect Franklin/Double J.
So far as appears from the complaint,
they were complete strangers.
Moreover, the allegations of the
proposed amended complaint indicate that Lovelace was merely
There is nothing to suggest that he had any
authority to control Robinson, and thus, as a matter of law, there
was no special relation between Lovelace and Robinson that would
have imposed on Lovelace a duty to prevent Robinson from causing
harm to Franklin/Double J.
Cf. Doe v. Hunter Oaks Apts., 105 So.
3d at 426 (“A person who does not have the ability to control
another's conduct should not have liability imposed upon him or
her for the tortious act of that other person.”) (quoting Doe v.
State ex rel. Miss. Dept. of Corr., 859 So. 2d 350, 359 (Miss.
The employer/employee relation is a special relation that may
potentially give rise to a duty on the part of the employer to
protect another from its employee’s conduct under certain
See, e.g., Doe v. MySpace, Inc., 474 F. Supp. 2d
843, 850 (W.D. Tex. 2007), aff'd, 528 F.3d 413 (5th Cir. 2008)
(stating that special relationships which impose a duty upon the
actor to control the third person's conduct include the
relationship between employer and employee).
An employer has the
ability to control its employees while acting within the course
and scope of their employment.
Indeed, under Mississippi law,
“[t]he overarching inquiry” in determining whether one can be
properly categorized as an employee “is whether the employer
exhibited the requisite amount of control over the engaged
Woodring v. Robinson, 892 F. Supp. 2d 769, 776 (S.D.
Miss. 2012) (quoting McKee v. Brimmer, 39 F.3d 94, 96 (5th Cir.
The fact of an employer/employee relationship alone,
however, does not create a duty in all situations.
And there is
no precedent in Mississippi law to suggest any arguable basis for
finding a duty on the part of an employer (1) to first discover
potential hazards that its employees might encounter, not on the
employer’s premises but somewhere out in the world, and then,
because of the possibility that its employees might fail to become
aware of such hazards on their own, (2) to warn its employees of
such hazards in order to minimize the risk of harm to the public
This court’s task in a diversity action is to apply the law
of Mississippi, not “to create ... a duty, which is not yet
recognized by the Mississippi Supreme Court, nor which is a
rational extension of an already existing duty.”
Thus, in Cameron
v. Werner Enterprises, Inc., No. 2:13CV243-KS-JCG, 2015 WL
4393068, at *2 (S.D. Miss. July 15, 2015), a wrongful death action
involving a collision between two commercial vehicles around 4:00
a.m. in heavy fog, the court refused to find a duty on the part of
the defendant employer to utilize a Qualcomm message system to
alert its drivers of weather problems.
Its function, the court
wrote, was “to apply Mississippi law and not to create or adopt
innovative theories of recovery.”
Id. at 3 (citing Allstate Ins.
Co. v. Receivable Fin. Co., 501 F.3d 398, 411 (5th Cir. 2007) (“We
have long followed the principle that we will not create
innovat[ive] theories of recovery or defense under local law, but
will rather merely apply it as it currently stands.”) (citation
omitted); and Janus, 48 F.3d 532, 1995 WL 84545, at *2 (5th Cir.
1995) (rejecting the plaintiffs' negligence claim that depended
upon a legal duty not yet recognized by Mississippi's highest
The court “declined to contravene this well established
principle” and rejected the plaintiff’s “novel, unsupported
arguments” in support of a duty to warn employee drivers of
hazardous weather conditions.
Plaintiff’s theory here, both as to Lovelace and UPS, is
likewise novel, and finds no support in Mississippi law.
Accordingly, for the reasons set forth herein, it is ordered that
the magistrate judge’s order granting Franklin/Double J’s motion
to amend is vacated.
It is further ordered that Franklin/Double
J’s motion to amend to add claims against UPS and Lovelace is
denied on the basis of futility.
SO ORDERED this 19th day of September, 2017.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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