Pukt et al v. Nexgrill Industries, Inc.
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
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
The Pukts move for leave to amend their complaint to add
allegations to support an award of punitive and enhanced
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.
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
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
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.
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.
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.
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
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
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
plaintiff has stated “a claim to relief that is plausible on its
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The Pukts’ claims are brought under New Hampshire law.
Hampshire prohibits punitive damages, unless specifically
allowed by statute.
The Pukts cite no statute that
allows punitive damages for product liability claims.
Therefore, the request for punitive damages is futile and is
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).
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
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
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
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.
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.
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.
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
The Pukts are granted leave to file an amended complaint
that seeks enhanced compensatory damages but not punitive
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.
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
Joseph DiClerico, Jr.
United States District Judge
May 31, 2016
cc: Raymond E. Mack, Esq.
Joseph L. McGlynn, Esq.
Kevin Truland, Esq.
Richard F. Wholley, Esq.
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