HUZINEC v. SIX FLAGS GREAT ADVENTURE, LLC et al

Filing 60

MEMORANDUM ORDER AND OPINION that Plaintiff's 56 Motion for Leave to File an Amended Complaint is GRANTED. It is further Ordered that Plaintiff shall file an Amended Complaint by 10/15/2019. Signed by Magistrate Judge Douglas E. Arpert on 09/27/2019. (jmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________________
EVAN HUZINEC,
:
:
:
Plaintiff,
:
:
v.
:
:
SIX FLAGS GREAT ADVENTURE, LLC, :
et al.,
:
Defendants.
:
:

Civil Action No. 16-2754 FLW-DEA

MEMORANDUM OPINION
AND ORDER

ARPERT, UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on a Motion by Plaintiff Evan Huzinec for leave to
file an Amended Complaint, seeking to add Six Flags Theme Parks Inc. as a Defendant. ECF No.
28. Defendants Six Flags Great Adventure LLC and Six Flags Entertainment Corp. oppose the
Motion. The Court has carefully reviewed the submissions of the parties and considers same
without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons set forth below, Plaintiff’s
Motion is GRANTED.
I.

BACKGROUND 1
Plaintiff filed his Complaint on May 16, 2016, alleging negligence and other claims

arising out of a July 5, 2014 incident in which he was injured by a falling cellphone while riding
the El Toro roller coaster at the Six Flags Great Adventure Park in Jackson, New Jersey. ECF
No. 1. Plaintiff allegedly sustained “extensive internal and external injuries in and about the
head, face, eye and body, including but not limited to, loss of vision in the right eye” and
The following facts are taken from Plaintiff’s Complaint and proposed Amended Complaint and are assumed true
for purposes of this Memorandum and Order.

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significant damage to the bones and structures of the right eye socket. Id. at Count 1 at ¶6.
Plaintiff claims the cause of this incident was Defendants’ negligence in the operation of the El
Toro ride and surrounding premises, namely failing to enforce a no-cellphone policy on the El
Toro ride. Id. at ¶5. Plaintiff further claims Defendants breached express and implied warranties
that their property and rides were safe. Id. at Count 2 at ¶3. Finally, Plaintiff claims Defendants
concealed evidence by failing to preserve surveillance video, the cellphone that struck Plaintiff,
written reports and other evidence at one time in their possession memorializing the incident and
the injuries to Plaintiff. Id. at Count 3 at ¶¶5,6.
Defendants filed a Motion to Dismiss on June 7, 2016. ECF No. 7. U.S. District Judge
Freda L. Wolfson dismissed Plaintiff’s claims for breach of implied and express warranty, as
well as Plaintiff’s claim for fraudulent concealment and request for punitive damages in Counts 3
and 4. See Order at ECF No. 11. Defendants then filed an Answer to the remaining Counts in the
Complaint, along with Affirmative Defenses and Crossclaims against unnamed persons or
entities listed as co-Defendants. ECF No. 12. Defendants filed a Third-Party Complaint in April
2017 against Brazilian tour operator For Fun Tours, two employees of For Fun Tours, and the
participant in a For Fun Tours trip visiting Six Flags who allegedly dropped the cellphone that hit
Plaintiff. ECF No. 16 at ¶¶3-6,15-17. Defendants shortly thereafter filed an Amended ThirdParty Complaint that added Celebration Tours and Travel, Inc., a Florida corporation Defendants
claim contracts with For Fun Tours to coordinate tours to destinations in the United States,
including Six Flags Great Adventure in Jackson, New Jersey. ECF No. 19 at ¶4. Celebration
Tours filed a Motion to Dismiss for lack of Jurisdiction in September 2017. ECF No. 30.
Plaintiff filed an informal application with the Court seeking to amend his Complaint.
Defendants by letter dated October 2, 2017 opposed, requesting that the Court order Plaintiff to

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file a formal motion, which this Court granted. See ECF No. 36. Plaintiff subsequently filed a
Motion to Amend on October 30, 2017, seeking to name Six Flags Theme Parks Inc. as a
Defendant, based on Defendants’ answers to interrogatories indicating that the safety and
operating manual for the El Toro ride is owned by Six Flags Theme Parks Inc. See ECF No. 39-3
at pp.2-3. That Motion was adjourned, ECF No. 43, and later terminated by this Court without
prejudice in December 2017 “subject to renewal after completion of the deposition of
Defendants’ corporate designee.” ECF No. 47 at ¶1. This Court in April 2018 issued a Letter
Order providing that the deposition of Defendants’ corporate designee “shall be conducted by
Plaintiff’s counsel no later than April 20, 2018.” ECF No. 49. Also in April 2018, Judge Wolfson
granted a Motion to Dismiss filed by Third Party Defendant Celebration Tours for lack of
personal jurisdiction. ECF Nos. 50,51. In May 2018, this Court stayed all deadlines and
discovery pending the completion of mediation. ECF No. 52. The action was restored to the
active docket by Order dated November 27, 2018. ECF No. 54. That Order set March 11, 2019
as the deadline for filing any motions to amend or join new parties. Id. That deadline was later
extended to April 28, 2019. ECF No. 55. On April 26, 2019, Plaintiff filed the instant Motion.
ECF No. 56. Defendants filed a Certification of Counsel in opposition to the Motion on May 6,
2019. ECF No. 58.
II.

LEGAL STANDARD
A party may amend its pleading once as a matter of right within either (1) twenty-one

days of serving it; or (2) where the pleading is one to which a responsive pleading is required,
the earlier of twenty-one days following service of the responsive pleading or a motion to
dismiss. Fed. R. Civ. P. 15(a)(1). Once those deadlines have expired, “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave” and “[t]he court
should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a). The decision to grant
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leave to amend rests within the sound discretion of the trial court. Zenith Radio Corp. v.
Hazeltine Research Inc., 401 U.S. 321, 330 (1970) (citing Foman v. Davis, 371 U.S. 178, 182
(1962) (Dictum)). In determining a motion for leave to amend, courts consider the following
factors: “(1) undue delay on the part of the party seeking to amend; (2) bad faith or dilatory
motive behind the amendment; (3) repeated failure to cure deficiencies through multiple prior
amendments; (4) undue prejudice on the opposing party; and/or (5) futility of the amendment.”
Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010)
(quoting Foman, 371 U.S. at 182)).
III.

ANALYSIS
Plaintiff cannot timely file an Amended Complaint as of right pursuant to Fed. R. Civ. P.

15(a). That rule limits amendments “as of right” to 21 days after the service of either a
responsive pleading or a Rule 12 motion, whichever is earlier. Defendants filed a Motion to
Dismiss in June 2016, ECF No. 7, followed in January 2017 by an Answer. ECF No. 12.
Regardless of which date the Court were to look to it is clear Plaintiff requires either Defendant’s
consent or this Court’s leave to amend the Complaint. As Defendants oppose the Motion,
Plaintiff can amend the Complaint only with this Court’s leave.
Plaintiff argues justice requires allowing him to add Six Flags Theme Parks Inc. as a
Defendant. Plaintiff points first to the El Toro Standard Operating Procedures manual it obtained
in discovery from Defendants, a manual stating that “[t]he information contained herein is
proprietary and is owned in its’ (sic) entirety by Six Flags, Inc. This manual is to be used
exclusively by authorized associates of Six Flags Theme Parks, Inc….” See Pl. Br. in Sup. of
Mot., ECF No. 56 at p.3 (quoting El Toro Standard Operating Procedures, at ECF No. 56,
Exhibit A) (filed under seal)). Plaintiff further points to the deposition of Jason Freeman, who

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testified as Defendants’ corporate designee pursuant to Fed. R. Civ. P. 30(b). Id. at pp.3-9.
Plaintiff contends Mr. Freeman testified that Six Flags Inc. is not in existence and “was the
company that was used prior to our bankruptcy.” Id. at p.4 (quoting Freeman Dep. at p.20:2223). Mr. Freeman further testified, Plaintiff says, that Six Flags Theme Parks Inc., which
employs him, is the parent company of Six Flags Great Adventure LLC, and that he is an officer
in both entities. Id. at pp.3-4 (citing Freeman Dep. at p.20:20-25). Plaintiff contends Mr.
Freeman testified that as Corporate Vice-President of Security, Safety, Health and
Environmental at Six Flags Entertainment Corp., though his employment by Six Flags Theme
Parks Inc., one of his jobs is to provide oversight and guidance to parks including Six Flags
Great Adventure LLC. Id. at p.5 (citing Freeman Dep. at p.90:12-18). In that function, Plaintiff
contends, Mr. Freeman testified that his duties include helping to create, implement and
promulgate safety policies. Id. at p.6 (citing Freeman Dep. at p.91:24-25, 92:1-10). Plaintiff
contends Mr. Freeman testified that one such policy that was changed was to make the no-phone
policy of the adjacent Kingda Ka ride also applicable to El Toro. Id. at p.9 (citing Freeman Dep.
at p.94:13-25, 95:1-3).
Plaintiff contends the manual provided in discovery and the testimony of Mr. Freeman
show that Six Flags Theme Parks Inc. “together with defendants, created, implemented and
promulgated the policies and procedures including cell phone policy at the park where plaintiff
was blinded.” Id. at p.10. Plaintiff says this demonstrates that the purpose of the instant motion is
not “undue delay, bad faith or dilatory motive” but solely prompted by the information it
obtained from Defendants in discovery. Id. Furthermore, Plaintiff says, “defendants will not be
prejudiced as a result of adding this entity at this junction of the litigation.” Id.

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Defendants oppose the Motion, arguing that the “policies and procedures for operation of
the El Toro roller coaster are established by Six Flags Great Adventure, LLC, based on state law
ASTM standards, and the manufacturer’s requirements.” See Cert. of Eichenbaum, ECF No. 58
at ¶19. Defendants contend “the ownership of intellectual property [related to the manual] has no
bearing whatsoever on the issues herein.” Id. at ¶20. Furthermore, Defendants contend, “[t]here
is absolutely no evidence to even suggest that [Six Flags Entertainment Corp.] or Six Flags
Theme Parks Inc. has any involvement whatsoever in these policies and procedures.” Id.
Defendants point to different sections of the deposition where, they contend, Mr.
Freeman testified that “each park creates its own [standard operating procedure] manuals.” Id. at
¶17 (quoting Freeman Dep., p,21:15-16). Defendants say Mr. Freeman also testified that the
person in charge of creating the policies at Six Flags Great Adventure LLC was Len Tutora. Id.
(quoting Freeman Dep., p.22:14-19). Defendants also point to the following deposition response
from Mr. Freeman, after being asked if in his role as an officer he considered the speed that the
roller coasters travel: “I don’t give specific advice or guidance on the ride [standard operating
procedure] unless I’m specifically asked, and on El Toro I was not asked.” Id. (quoting Freeman
Dep., p.98:7-13).
In accordance with Great Western, in considering a motion to amend the Complaint the
Court must consider whether there is any (1) undue delay on the part of the party seeking to
amend; (2) bad faith or dilatory motive behind the amendment; (3) repeated failure to cure
deficiencies through multiple prior amendments; (4) undue prejudice on the opposing party;
and/or (5) futility of the amendment.
As an initial matter, the Court concludes that the instant Motion is not the result of undue
delay on Plaintiff’s part, nor have there been repeated failures by Plaintiff to cure any

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deficiencies in the Complaint, while granting the Motion would not cause any undue prejudice to
Defendants. The Court observes that Plaintiff twice sought to amend the Complaint before the
instant Motion, the first time by informal application in October 2017, see ECF No. 36, and then
by Motion. See ECF No. 39. But that Motion was adjourned, ECF No. 43, and then terminated
by this Court without prejudice in December 2017 “subject to renewal after completion of the
deposition of Defendants’ corporate designee.” ECF No. 47 at ¶1. Then in May 2018, this Court
stayed all deadlines and discovery pending the completion of mediation, ECF No. 52, with the
action not restored to the active docket until this Court’s Order dated November 27, 2018. ECF
No. 54. That Order set March 11, 2019 as the deadline for filing any motions to amend or join
new parties, though that deadline was later extended to April 28, 2019. ECF No. 55. Plaintiff
filed this Motion on April 26, 2019. ECF No. 56.
Though the instant Motion was filed nearly three years after the Complaint was filed, the
preceding timeline makes clear Plaintiff sought to amend the Complaint during the discovery
period, based on evidence he says was received in discovery. The delay since then was the result
of this Court’s Orders and an interregnum during which the parties sought engaged in mediation.
It is thus clear to the Court that the instant Motion does not represent undue delay on Plaintiff’s
part, nor is it the result of repeated failures by Plaintiff to cure any deficiencies through multiple
prior amendments. It also is clear to the Court that Plaintiff’s desire to amend the Complaint for
the purpose of adding Six Flags Theme Parks Inc. has been well advertised both to the Court and
to Defendants. Furthermore, Six Flags Theme Parks Inc. is related corporately to Defendants.
Consequently, the Court concludes that granting the instant Motion would not result in undue
prejudice to Defendants. These Great Western factors then all weigh in favor of granting the
Motion.

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Plaintiff contends its purpose of seeking to add Six Flags Theme Parks Inc. as a
Defendant is to act on evidence obtained through discovery and does not represent bad faith or
dilatory motive on its part. Defendants’ opposition makes no express bad-faith argument,
contending rather that there is no evidence to support Plaintiff’s position that Six Flags Theme
Parks Inc. played any role in the events of July 5, 2014. The Court construes this as an argument
for futility of the proposed amendment and not bad faith on the part of Plaintiff in proposing the
amendment. The Court is satisfied that the instant Motion does not represent bad faith or dilatory
motive on behalf of the Plaintiff. Thus, this Great Western factor weighs in favor of granting the
Motion.
The last Great Western factor considers whether the proposed amendment would be
futile. As the Great Western Court concluded, “[u]nder Rule 15(a), futility of amendment is a
sufficient basis to deny leave to amend.” Great Western, 615 F.3d at 175. Futile “means that the
complaint, as amended, would fail to state a claim upon which relief could be granted.” Id.
(quoting In re Merck & Co. Sec., Derivative, & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007).
An amendment is futile if it “is frivolous or advances a claim...that is legally insufficient on its
face.” Harrison Beverage Co. v. Dribeck Imp., Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (internal
quotation marks and citations omitted). To evaluate futility, the Court uses “the same standard of
legal sufficiency” as applied to a motion to dismiss under Rule 12(b)(6). Shane v. Fauver, 213
F.3d 113, 115 (3d Cir. 2000). To determine if a pleading would survive a Rule 12(b)(6) motion,
the Court must accept all facts alleged in the pleading as true and draw all reasonable inferences
in favor of the party asserting them. Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004).
“[D]ismissal is appropriate only if, accepting all of the facts alleged in the [pleading] as true, the
p[arty] has failed to plead ‘enough facts to state a claim to relief that is plausible on its

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face[.]’” Duran v. Equifirst Corp., 2010 WL 918444, *2 (D.N.J. March 12, 2010) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Put
succinctly, the alleged facts must be sufficient to “allow[ ] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In determining futility, the Court considers
only the pleading, exhibits attached to the pleading, matters of public record, and undisputedly
authentic documents if the party’s claims are based upon same. See Pension Benefit Guar. Corp.
v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
As an initial matter, the Court observes that L. Civ. R. 15.1, which governs motions to
amend pleadings, requires that a motion to amend the complaint must be accompanied by “a
copy of the proposed amended pleading,” as well as a form of the amended pleading that
“indicate[s] in what respect[s] it differs from the pleading which it proposes to amend.”
Plaintiff’s motion did not come with such attachments. “The purpose of [the rule] is to give the
Court and the parties a chance to evaluate the sufficiency of the proposed amended pleading.”
Folkman v. Roster Fin. LLC, 2005 WL 2000169, at *8 (D.N.J. Aug. 16, 2005); see also P.
Schoenfeld Asset Mgt. v. Cendant Corp., 142 F.Supp.2d 589, 622 (D.N.J.2001). Because the
Motion was not filed with the required attachments, the Motion could be denied on that basis
alone. Obuskovic v. Wood, 2016 WL 6471023, at *1, n.2 (D.N.J. Oct. 31, 2016). However, the
preference in the Third Circuit is to dispose of cases on the merits whenever practicable. Hritz v.
Woma Corp., 732 F.2d 1178, 1181 (3d Cir.1984). Because Plaintiff’s stated intent is solely to
add one corporate entity as a Defendant and that corporate entity is related to the other
Defendants already in this action, it is a simple matter for the Court to insert Six Flags Theme
Parks Inc. wherever Six Flags Great Adventure LLC and Six Flags Entertainment Corp. already

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are referenced in the Complaint to conceptualize how a proposed Amended Complaint would
read and then review that proposed Amended Complaint through the prism of the futility-ofamendment prong.
As a threshold matter, the Court observes that Count I, which alleges negligence by the
Six Flags entities already listed in the Complaint survived Defendants’ Motion to Dismiss
pursuant to Judge Wolfson’s Opinion and Order. See ECF No. 50,51. Thus, the Court proceeds
on the premise that Count I is not futile on its face as to Six Flags Great Adventure LLC and Six
Flags Entertainment Corp.
Defendants contend the proposed Amended Complaint would be futile because “[t]here is
absolutely no evidence to support any suggestion that [Six Flags Entertainment Corp.] or Six
Flags Theme Parks, Inc. has any involvement whatsoever in these policies and procedures.” See
Cert. of Eichenbaum, ECF No. 58 at ¶19. The Court disagrees.
First, as already stated, the Court is proceeding on the premise that Count I is not futile
on its face as to Six Flags Entertainment Corp., contrary to Defendants’ assertions.
Second, Count I claims it was the negligence of Six Flags and “defendant, XYZ Entity
(A-Z)” that caused Plaintiff’s injuries. Defendants’ Rule 30 designee, Mr. Freeman, testified that
“Six Flags Theme Parks [] is basically the parent” and then that Six Flags Entertainment Corp.
“is the holding company for Six Flags assets.” See Pl.’s Br., ECF No. 56-2 at p.4 (citing Freeman
Dep., ECF No. 56-4 at p.20:18-25). Mr. Freeman further testified that he is employed by Six
Flags Theme Parks Inc. and is an officer of that entity as well as Defendant Six Flags Great
Adventure LLC. Id. at p.5 (citing Freeman Dep., ECF No. 56-5 at p.90:1-7). Mr. Freeman stated
that in his function as Corporate Vice President of Security, Safety, Health and Environmental at
Six Flags Entertainment Corp. he provides oversight and guidance to parks including Six Flags

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Great Adventure LLC. Id. (citing Freeman Dep., ECF No. 56-5 at p.90:12-18). In that position,
Mr. Freeman testified, he is “looking at what they’re doing to ensure that each park is following
the proper procedure based on state regulations and so on.” Id. at p.6 (citing Freeman Dep., ECF
No. 56-5 at p.90:13-23). Defendants contend Mr. Freeman testified that safety procedures were
solely the province of each individual Six Flags park and “it is based on ride manufacturers’”
policies as well as state regulations. See Cert. of Eichenbaum, ECF No. 58 at ¶17 (citing
Freeman Dep., p.44:14-20). But, the Court observes that Mr. Freeman also testified that the
policy regarding cellphones being allowed on the El Toro roller coaster was changed “to make it
consistent with its sister coaster that is adjacent to that ride…. The ride manufacturer did not
have that in their manual written that way whereas their other rides, same manufacturer, has it
written that says—Kingda Ka says nothing; El Toro says you can. We’ve decided to make it
consistent.” See Pl. Br. at p.9 (citing Freeman Dep. at p.94:13-25, p.95:1-3) (emphasis added). It
is clear Mr. Freeman used the plural noun in referring to the entity or entities that made that
change, and that Mr. Freeman holds positions in Six Flags Great Adventure LLC and Six Flags
Theme Parks Inc. Thus, the Court cannot conclude that adding Six Flags Theme Parks Inc.
would be futile in that the Amended Complaint would not state a claim for which relief can be
granted. The precise meaning of Mr. Freeman’s testimony will be tested through the litigation.
However, the Court is persuaded that one reasonable interpretation of Mr. Freeman’s testimony
is that Six Flags Theme Parks Inc., not only through its ownership interest in the El Toro
Standard Operating Procedures manual but through Mr. Freeman’s roles with multiple Six Flags
entities, is that Six Flags Theme Parks Inc. has a role in developing safety procedures for the
Jackson, New Jersey park and in assuring compliance with those procedures. Accordingly,
having considered the papers submitted and for the reasons set forth above,

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IT IS on this 27th day of September 2019
ORDERED that Plaintiff’s Motion for Leave to File an Amended Complaint be
GRANTED; and it is
FURTHER ORDERED that Plaintiff shall file an Amended Complaint by October 15,
2019.

s/ Douglas E. Arpert
DOUGLAS E. ARPERT
UNITED STATES MAGISTRATE JUDGE

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