Pukt et al v. Nexgrill Industries, Inc.

Filing 127

ORDER granting in part 71 Motion for Leave to Amend the 1 Complaint. Motion is granted, except for the remedy of punitive damages. (Amended Pleadings due by 6/8/2016). So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph and Barbara Pukt
v.

Civil No. 14-cv-215-JD
Opinion No. 2016 DNH 091

Nexgrill Industries, Inc.

O R D E R
Joseph and Barbara Pukt brought suit against Nexgrill
Industries, Inc., alleging claims that arose from damage to
their property after a grill manufactured by Nexgrill caught
fire.

The Pukts move for leave to amend their complaint to add

allegations to support an award of punitive and enhanced
compensatory damages.1

Nexgrill objects.
Standard of Review

In response to a motion for leave to amend a complaint,
“[t]he court should freely give leave when justice so requires.”2

“Enhanced compensatory damages are
substantive claim.” Jenks v. Textron,
*1 (D.N.H. July 10, 2012). Therefore,
add allegations to support that remedy
add a claim.
1

a remedy not a
Inc., 2012 WL 2871686, at
the Pukts are moving to
and are not seeking to

In this case, the scheduling order does not include a
deadline for seeking leave to amend the complaint. Therefore,
the Pukts need not first seek leave to amend the scheduling
order. Cf. Martinez v. Petrenko, 792 F.3d 173, 180 (1st Cir.
2015) (explaining standard under Federal Rule of Evidence
16(b)(4)).
2

Fed. R. Civ. P. 15(a)(2).

To decide if justice requires leave

to amend, the court considers all of the circumstances to
“balance pertinent considerations.”

Palmer v. Champion Mortg.,

465 F.3d 24, 30-31 (1st Cir. 2006).

Generally, the motion

should be allowed in the absence of “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment,” or another appropriate
circumstance.
A.

Foman v. Davis, 371 U.S. 178, 182 (1962).

Undue Delay and Prejudice
In its objection to the motion for leave to amend, Nexgrill

asserts that the motion is too late and that the proposed
amendment of the complaint will prejudice Nexgrill.

At the

final pretrial conference, however, Nexgrill’s counsel conceded
that it has all of the relevant information for its defense.
The only prejudice would be the extra time necessary to prepare
the defense for trial.
Because of other circumstances raised during the final
pretrial conference, the trial scheduled to begin on June 7,
2016, has been continued until a date next fall, which remains
to be determined.

Therefore, any prejudice that might have

resulted from the proximity of trial is no longer an issue.

2

The Pukts waited until less than a month before the date
the trial was scheduled to begin to seek leave to amend, despite
knowing the underlying facts for six months to a year.
Counsel’s only explanation for the delay was an expectation that
the case would settle.
facts for months.

Nexgrill, too, has known the underlying

Despite the delay, the lack of prejudice to

Nexgrill weighs in favor of allowing the amendment.
B.

Futility
Nexgrill contends that the new damages allegations are

futile because State Farm Mutual Insurance Company is the real
party in interest and a subrogee cannot recover more than it
actually paid.

Nexgrill also contends that there are no facts

in the case to support enhanced damages.
An amendment is futile if it cannot survive the standard
applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6).

Platten v. HG Bermuda Exempted Ltd., 437

F.3d 118, 132 (1st Cir. 2006).

In considering a motion under

Rule 12(b)(6), the court assumes the truth of the properly
pleaded facts and takes all reasonable inferences from the facts
that support the plaintiff’s claims.

Mulero-Carrillo v. Roman-

Hernandez, 790 F.3d 99, 104 (1st Cir. 2015).

Based on the

properly pleaded facts, the court determines whether the

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plaintiff has stated “a claim to relief that is plausible on its
face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

The Pukts’ claims are brought under New Hampshire law.

New

Hampshire prohibits punitive damages, unless specifically
allowed by statute.

RSA 507:16.

The Pukts cite no statute that

allows punitive damages for product liability claims.
Therefore, the request for punitive damages is futile and is
denied.
New Hampshire recognizes enhanced compensatory damages when
the defendant’s actions are “wanton, malicious, or oppressive.”
Stewart v. Bader, 154 N.H. 75, 87 (2006).

“‘Wanton conduct

means that the actor is aware that his actions are causing a
great risk of harm to others.”

Collins v. Dartmouth-Hitchcock

Med. Ctr., 2014 WL 1364957, at *2 (D.N.H. Apr. 7, 2014) (quoting
Johnson v. The Capital Offset Co., Inc., 2012 WL 781000, at *1
(D.N.H. Mar. 6, 2012)).

The allegations in the complaint, taken

in the proper light, support at least wanton conduct by
Nexgrill.
There is no dispute that this is a subrogation case and
that State Farm is the subrogee of the Pukts as to their claims
against Nexgrill arising out of the fire and ensuing damage to
their home.

Nexgrill argues that State Farm cannot recover

enhanced damages because it is entitled to only the amount it
paid the Pukts.

In support, Nexgrill cites authority that as a
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general rule a subrogee can be indemnified for only the amount
it actually paid.

See Chase v. Ameriquest Mortg. Co., 155 N.H.

19, 28 (2007).
The subrogation issue in Chase arose out of a mortgage the
plaintiff’s ex-husband obtained by forging the plaintiff’s
signature and involved the plaintiff’s homestead right to the
property that had been mortgaged.

155 N.H. at 20-21.

The New

Hampshire Supreme Court explained in some detail that the result
in Chase was based on principles of equity.

Id. at 25-27.

Ameriquest paid the underlying mortgage on the property but
issued a mortgage for more than that amount.

Id. at 28.

The

court held that Ameriquest could recover the amount the
plaintiff owed on the underlying mortgage but not the additional
amount owed for the new mortgage.

Id.

Given the unusual circumstances in Chase, it is far from
clear that the limitation on recovery by the subrogee in that
case would apply here.
plaintiffs in this case.

Further, the Pukts remain the named
As discussed briefly at the final

pretrial conference, whether the Pukts or State Farm would
receive enhanced damages, if any are awarded, would be a matter
to be resolved between State Farm and the Pukts and is not an
issue in this case.

Therefore, Nexgrill has not shown that the

proposed allegations to support enhanced damages would be
futile.
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C.

Summary

The Pukts are granted leave to file an amended complaint
that seeks enhanced compensatory damages but not punitive
damages.

The requests for punitive damages shall be removed

from the amended complaint.
In addition, during the final pretrial conference, counsel
for the Pukts stated that they were not pursuing their claim for
breach of warranties, Count II.

The court concludes that the

Pukts are voluntarily dismissing the breach of warranties claim.
Therefore, the amended complaint shall be revised to omit the
claim for breach of warranties and the strict liability claim
shall be renumbered as Count II.
Conclusion
For the foregoing reasons, the plaintiffs’ motion for leave
to amend the complaint (document no. 71) is granted except for
the remedy of punitive damages.

The plaintiffs shall file the

amended complaint, as allowed in this order, on or before June
8, 2016.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
May 31, 2016

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cc: Raymond E. Mack, Esq.
Joseph L. McGlynn, Esq.
Kevin Truland, Esq.
Richard F. Wholley, Esq.

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