Desir v. Wendell et al

Filing 56

ORDER granting 52 Motion to Amend/Correct/Supplement in part. For the reasons stated in the within Memorandum and Order, Plaintiff's motion for leave to amend the Complaint is granted insofar as it relates back to the filing of the Third-part y Complaint and is thus timely but remains pending subject to future communication with the Court with regard to Plaintiff's citizenship. In light of the within Memorandum and Order, an in-person status conference is scheduled for May 17, 2016 at 5:00 p.m. The parties should be prepared to discuss the following: (1) Plaintiff's citizenship for diversity purposes; (2) what information, if any, need be exchanged by the parties to determine Plaintiff's citizenship during the relevan t time frame; and (3) whether Plaintiff's negligence claim against the current Defendants and/or Ray's Rapid could be timely filed in state court in New York, Georgia or other jurisdictions in the event this Court dismisses the action due t o a loss of subject-matter jurisdiction. In addition, though not explicitly briefed by the parties, there has been suggestion by both Plaintiff and Third-party Defendants in their respective motion papers of a possible declaratory judgment action. A ccordingly, counsel should also be prepared to discuss this topic. (Status Conference set for 5/17/2016 05:00 PM in Courtroom 504 North before Magistrate Judge Vera M. Scanlon.) Ordered by Magistrate Judge Vera M. Scanlon on 4/27/2016. (Weingarten, Richard)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------ X
:
REMOND DESIR,
:
:
Plaintiff,
:
:
-against:
WENDELL I. AUSTIN, LOGAN LYNN WRAY :
:
and LYNN TRUCKING,
:
:
Defendants.
------------------------------------------------------------ X
WENDELL I. AUSTIN, LOGAN LYNN WRAY :
and LYNN TRUCKING,
:
:
Third-party Plaintiffs,
:
:
-against:
:
RAY’S RAPID TRANSPORTING LLC and
:
REMUSAT CLAUDE THEBAUD,
:
:
Third-party Defendants.
:
------------------------------------------------------------ X

MEMORANDUM AND ORDER
13 CV 912 (VMS)1

VERA M. SCANLON, United States Magistrate Judge:
This is a personal-injury action arising out of a motor-vehicle accident and is before this
Court on the basis of diversity jurisdiction. Plaintiff Remond Desir (“Plaintiff”) seeks leave to
file an Amended Complaint pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”)
15(a). The Amended Complaint seeks to assert a direct claim for negligence against current
Third-party Defendant Ray’s Rapid Transporting, LLC (“Ray’s Rapid”). For the reasons stated
herein, Plaintiff’s motion for leave to amend the Complaint is granted insofar as it relates back
to the filing of the Third-party Complaint and is thus timely. Plaintiff’s motion to amend the

1

The parties have consented to my jurisdiction for all purposes. See ECF No. 38.
1

Complaint remains pending subject to future communication with the Court with regard to
Plaintiff’s citizenship as explained in detail below.
I.

BACKGROUND
a.

Procedural History2

The instant action arises from a motor-vehicle collision in Florida involving Plaintiff
and Defendant Wendell I. Austin (“Austin”), who at the time of the accident was operating a
vehicle and trailer owned, respectively, by Defendants Logan Lynn Wray (“Wray”) and Lynn
Trucking. See Complaint, ECF No. 1. On August 22, 2013, Austin, Wray and Lynn Trucking
(collectively, “Defendants,” “Third-party Plaintiffs” or “TPPs”) filed a Third-party Complaint
against Ray’s Rapid, Plaintiff’s employer, and Remusat Claude Thebaud (“Thebaud”)
(collectively, “Third-party Defendants” or “TPDs”), who was operating the vehicle in which
Plaintiff was a passenger when the accident occurred, alleging comparative negligence and
seeking common-law contribution and indemnification. See generally Third-party Complaint,
ECF No. 7.
Following discovery, Third-party Defendants Ray’s Rapid and Thebaud moved for
summary judgment seeking a declaration from the Court that Florida’s loss-allocating statute,
Fla. Stat. § 768.31 (2015), applied to the contribution and indemnification claims made by Thirdparty Plaintiffs Austin, Wray and Lynn Trucking and that summary judgment be granted in their
favor as a result.3 See generally ECF Nos. 41-45. For reasons unrelated to the within motion,

2

Facts relating to the procedural history of the case are taken from the docket.

3

Florida has abolished joint and several liability such that a given defendant can only be
liable for her equitable share of liability. See Fla. Stat. § 768.81. Specifically, with respect to
negligence actions, “Florida’s comparative fault statute states that ‘[i]n a negligence action, the
court shall enter judgment against each party liable on the basis of such party’s percentage of
fault and not on the basis of the doctrine of joint and several liability.’” Maguire v. Demos, 10
Civ. 782 (SCB), 2012 U.S. Dist. LEXIS 32305, at *5 (M.D. Fla. Mar. 12, 2012) (quoting Fla.
2

Third-party Defendants’ motion for summary judgment was denied, but because the parties had
been permitted to brief the choice-of-law question as a pre-trial motion in limine, this Court
construed Third-party Defendants’ motion as such. See generally December 21, 2015
Memorandum and Order (“12/21/15 M&O”), ECF No. 48, p. 9. Third-party Defendants’ motion
in limine was granted, thus resulting in the finding that Florida’s loss-allocating statute applied to
Plaintiff’s and Defendants/Third-party Plaintiffs’ actions. See 12/21/15 M&O, ECF No. 48, p.
19-20. When granting Third-party Defendants’ motion in limine, this Court concluded that, at
the time of the March 2, 2011 motor vehicle accident, Plaintiff was domiciled in Georgia. See
12/21/15 M&O, ECF No. 48, p. 13-15.
b.

March 2, 2011 Motor-Vehicle Accident

According to Plaintiff, at the time of the motor-vehicle accident, Plaintiff owned Ray’s
Rapid, a company which transported vehicles to and from car dealerships. See Third Party
Plaintiffs’ 56.1 Statement, ECF No. 44, Attachment #4 (“TPPs’ 56.1”) ¶¶ 2-3. In line with his
business, Plaintiff hired Thebaud to drive a freightliner truck to transport vehicles from Georgia
to Florida. See TPPs’ 56.1 ¶ 5. During the drive, Plaintiff—who was a passenger in the
freightliner—became tired and went to the sleeper section of the vehicle. See TPPs’ 56.1 ¶¶ 6-7.
With Plaintiff in the rear, the freightliner truck collided with Austin, who was operating a Mack
dump truck owned by his employer, Lynn Trucking, on Interstate 75 in Florida. See Plaintiff’s

Stat. § 768.81(3) (2011)). “In order to allocate any fault to a non[-]party, a defendant must
affirmatively plead this fault and prove it at trial ‘by a preponderance of the evidence.’” T & S
Enters. Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So.3d 411, 412
(Fla. 2d DCA 2009) (quoting Fla. Stat. § 768.81(3)(a)). “The current version of § 768.81 has
essentially rendered a third-party complaint for contribution in a negligence action obsolete.”
Maguire, 2012 U.S. Dist. LEXIS 32305, at *5 (citing T & S Enters., 11 So.3d at 413). For all
practical purposes, a declaration by the Court that Florida’s loss-allocating statute applied to the
parties’ claims in this litigation rendered Third-party Defendants liability-proof as to the Thirdparty Plaintiffs.
3

Proposed Amended Complaint (“PAC”), ECF No. 52, Attachment #1, p. 17 ¶ 13; TPPs’ 56.1 ¶¶
10-12, 15.
In essence, the parties blame one another for the accident. Third-party Defendants and
Plaintiff claim that Austin negligently pulled on to the interstate from the shoulder and made
contact with the front right corner of Plaintiff and Thebaud’s freightliner. See Third-party
Defendants’ Affirmation in Support, ECF No. 41, Attachment #1 ¶ 23; Plaintiff’s Affirmation in
Opposition, ECF No. 42 ¶ 7. According to Defendants/Third-party Plaintiffs, the collision was
the result of Thebaud rear-ending Austin’s vehicle. See TPPs’ 56.1 ¶¶ 13-20.
c.

The Proposed Amended Complaint

Plaintiff now seeks leave to file an Amended Complaint which adds a direct claim for
negligence against current Third-party Defendant Ray’s Rapid.4 See generally PAC, ECF No.
52, Attachment #1. Stated another way, Plaintiff has moved to amend his Complaint to add
Third-party Defendant Ray’s Rapid as a direct defendant. Third-party Defendant Ray’s Rapid
opposes, arguing that Plaintiff’s proposed amendment is barred by the applicable statute of
limitations and is not saved by the “relation-back” doctrine under Fed. R. Civ. P. 15(c)(1)(C).
See Third-party Defendants’ Opposition, ECF No. 53, Attachment #1, p. 4.
II.

LEGAL STANDARD
Under Rule 15(a), when a party cannot amend its pleading as a matter of course, “a party

may amend its pleading only with the opposing party’s written consent or the court’s leave. The
court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This
permissive standard is consistent with our strong preference for resolving disputes on the

4

Plaintiff has not requested leave to add a direct claim for negligence against current
Third-party Defendant Thebaud.
4

merits.” Williams v. Citigroup, Inc., 659 F.3d 208, 212-13 (2d Cir. 2011). In determining
whether to grant leave to amend, the Court must accept the moving party’s non-conclusory
factual pleadings and draw all reasonable inferences in that party’s favor, “to determine whether
the allegations plausibly give rise to an entitlement to relief.” Panther Partners Inc. v. Ikanos
Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012).
“[M]otions to amend should generally be denied in instances of futility, undue delay, bad
faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed,
or undue prejudice to the non-moving party.” Burch v. Pioneer Credit Recovery, Inc., 551 F.3d
122, 126 (2d Cir. 2008); see Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 71
(2d Cir. 2012) (“[A] request to replead should be denied in the event that amendment would be
futile.”). A motion to amend will be considered futile if the Court determines, “as a matter of
law, that proposed amendments would fail to cure prior deficiencies or to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Panther Partners, 681 F.3d at 119; see
Doyle v. United Airlines, Inc., 914 F. Supp. 2d 325, 333 (E.D.N.Y. 2012) (same).
III.

DISCUSSION
A.

The Relation-Back Doctrine

Courts may deny a motion to amend where the proposed claims would be time-barred
and therefore futile. See Twersky v. Yeshiva Univ., 579 Fed. Appx. 7, 12 (2d Cir. 2014)
(summary order) (finding that “the district court correctly concluded that amendment would have
been futile” where the proposed amendments involved untimely claims); Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (affirming dismissal of claims and denial of
cross-motion to amend as to claims that were time-barred). In general, “[t]he date of the filing of
the motion to amend is the date the action was commenced for statute of limitations purposes

5

since the defendant is on notice of the new claims as of the filing of the motion.” Lekic v. 222 E.
8th St. LLC, 11 Civ. 1242 (ARR) (MDG), 2012 U.S. Dist. LEXIS 137500, at *11 (E.D.N.Y.
Sept. 25, 2012).
Otherwise untimely claims may be permitted under the relation-back doctrine. Pursuant
to Fed. R. Civ. P. 15(c)(1), “[a]n amendment to a pleading relates back to the date of the original
pleading when:
(A) the law that provides the applicable statute of limitations
allows relation back;
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set
out—in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party’s identity.
Fed. R. Civ. P. 15(c)(1)(A)-(C).
Under Fed. R. Civ. P. 15(c)(1)(A), “if the applicable statute of limitations is determined
by state law . . . courts should assess both the state and federal relation[-]back doctrines and
apply whichever law is more generous.” Anderson v. City of Mount Vernon, 09 Civ. 7082 (ER)
(PED), 2014 U.S. Dist. LEXIS 44055, at *6 (S.D.N.Y. Mar. 28, 2014); see In re Vitamin C
Antitrust Litig., 995 F. Supp. 2d 125, 132 (E.D.N.Y. 2014) (same); Amaya v. Garden City
Irrigation, Inc., 71 Fed. R. Serv. 3d 137 (E.D.N.Y. 2008) (same). Stated another way, “[u]nder
federal law, if a claim ‘arises under state law, . . . relation back is to be determined by whichever
procedural rule gives the most favorable result to the plaintiff.’” EverHome Mortg. Co. v.
6

Charter Oak Fire Ins. Co., 07 Civ. 98 (RRM) (RML), 2012 U.S. Dist. LEXIS 34516, at *28-29
(E.D.N.Y. Mar. 14, 2012) (quoting Smith v. Rochester Tel. Bus. Mktg. Corp., 786 F. Supp. 293,
309 (W.D.N.Y. 1992), aff’d, 40 F.3d 1236 (2d Cir. 1994)); Pape v. Board of Educ. of
Wappingers Central School Dist., 07 Civ. 8828 (KMK), 2009 U.S. Dist. LEXIS 91738, at *41
(S.D.N.Y. 2009); Lieber v. Vill. of Spring Valley, 40 F. Supp. 2d 525, 532 (S.D.N.Y. 1999)
(“[I]f a state’s rules regarding relation back are less rigorous than the federal rules, state
principles apply.”); see Da Cruz v. Towmasters of N.J., 217 F.R.D. 126, 129 (E.D.N.Y. 2003)
(noting that Fed. R. Civ. P. 15(c)(1)(A) was added to clarify that “where state law governs the
statute of limitations, relation back may apply if it would be permissible under state law”).
In this case, state law determines the statute of limitations to be applied to Plaintiff’s
proposed negligence claim—a state law cause of action—against Third-party Defendant Ray’s
Rapid. Therefore, the Court must assess the availability of the relation-back doctrine under both
federal and New York relation-back principles, then apply the more generous of the two. See
Pape, 2009 U.S. Dist. LEXIS 91738, at *41.
B.

Statute of Limitations

As jurisdiction in this case is premised upon diversity of citizenship, the choice-of-law
rules and statutes of limitations of the state in which this Court sits are applied. See Stuart v.
American Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998) (“Where jurisdiction rests upon
diversity of citizenship, a federal court sitting in New York must apply the New York choice-oflaw rules and statutes of limitations.”); see also Forest Park Pictures v. Universal Television
Network, Inc., 683 F.3d 424, 433 (2d Cir. 2012) (“A federal court sitting in diversity jurisdiction
applies the choice of law rules of the forum state.”); Cantor Fitzgerald Inc. v. Lutnick, 313 F.3d
704, 709 (2d Cir. 2002) (“[I]t is well established that in diversity cases[,] state law governs not

7

only the limitations period but also the commencement of the limitations period. . . . To
determine which state’s law applies, a federal court sitting in diversity must apply the conflictof-laws rules of the state in which the federal court sits.”)
“New York courts generally apply New York’s statutes of limitations, even when the
injury giving rise to the action occurred outside New York.” Stuart, 158 F.3d at 627. “This
general rule, however, is subject to . . . New York’s ‘borrowing’ statute, [N.Y.] C.P.L.R. § 202.”
Id. New York’s “borrowing” statute provides that “[a]n action based upon a cause of action
accruing without the state cannot be commenced after the expiration of the time limited by the
laws of either the state or the place without the state where the cause of action accrued, except
that where the cause of action accrued in favor of a resident of the state the time limited by the
laws of the state shall apply.” N.Y. C.P.L.R. § 202. Thus, “[u]nder [N.Y.] C.P.L.R. § 202, when
a non[-]resident plaintiff sues upon a cause of action that arose outside of New York, the court
must apply the shorter limitations period, including all relevant tolling provisions, of either: (1)
New York; or (2) the state where the cause of action accrued.” Stuart, 158 F.3d at 627; see Muto
v. CBS Corp., 668 F.3d 53, 57 (2d Cir. 2012) (accord); Cantor Fitzgerald, 313 F.3d at 710
(accord). “However, plaintiffs who are residents of the State of New York are ‘affected only by
the New York limitations period.’” Landow v. Wachovia Secs., LLC, 966 F. Supp. 2d 106, 120
(E.D.N.Y. 2013) (quoting Braniff Airways, Inc. v. Curtiss-Wright Corp., 424 F.2d 427, 428 (2d
Cir. 1970)); see Kilmer v. Flocar, Inc., 212 F.R.D. 66, 70 (N.D.N.Y. 2002) (“[W]hile non-New
York State residents always face the shorter statute of limitations as between New York and the
accrual state, New York State residents are always subject to the New York statute of
limitations.”)

8

Here, Plaintiff was a Georgia domiciliary when the cause of action accrued (i.e., March 2,
2011), as this Court has previously found. See 12/21/15 M&O, ECF No. 48, p. 14-15. As such,
this Court must apply the shorter limitations period of either: (1) New York, where this Court
sits; or (2) Florida, where the cause of action accrued. See Stuart, 158 F.3d at 627. New York
applies a three-year statute of limitations for negligence actions, see N.Y. C.P.L.R. § 214,
whereas negligence claims are subject to a four-year statute of limitations in Florida, see In re
Fosamax Products Liability Litigation, 13 Civ. 6170 (JFK), 2014 U.S. Dist. LEXIS 112779, at
*8 (S.D.N.Y. Aug. 13, 2014) (“Under Florida law, negligence claims are subject to a four-year
statute of limitations.”) (citing Fla. Stat. § 95.11(3)(a)). Accordingly, New York’s three-year
statute of limitations applies.5
c.

Application of Relation-Back Doctrine

The subject motor-vehicle accident occurred on March 2, 2011, and thus, the relevant
date for determining whether Plaintiff’s direct claim against Third-party Defendants is timebarred is March 2, 2014. Plaintiff first sought leave to amend his Complaint on February 24,
2016, see ECF No. 52, which is otherwise untimely, unless the proposed amendment relates back
to Defendants/Third-party Plaintiffs’ filing of their Third-party Complaint against Third-party
Defendants on August 22, 2013, see Third-party Complaint, ECF No. 7. The Court begins by
analyzing the relation-back doctrine under New York state law.
“Under New York law, ‘an amendment of the complaint may be permitted, in the court’s
discretion, and a direct claim asserted against the third-party defendant . . . relates back to the

It is worth noting that, even if the Court considered Plaintiff a New York resident—as he
advocates—New York’s three-year statute of limitations would still apply. See Landow, 966 F.
Supp. 2d at 120 (“[P]laintiffs who are residents of the State of New York are ‘affected only by
the New York limitations period.’”) (quoting Braniff Airways, 424 F.2d at 428).
5

9

date of service of the third-party complaint,’ as long as the third-party complaint and proposed
amended complaint are based on the same transaction or occurrence.” Smith v. Bank of N.Y.
Mellon Corp., 09 Civ. 9212 (JGK), 2011 U.S. Dist. LEXIS 44018, at *3 (S.D.N.Y. Apr. 25,
2011) (quoting Duffy v. Horton Mem. Hosp., 488 N.E.2d 820, 823 (1985)); Northbrook Nat’l
Ins. Co. v. J & R Vending Corp., 167 F.R.D. 643, 648 (E.D.N.Y. 1996) (“The New York Court
of Appeals permits, in the court’s discretion, a direct claim by plaintiff against the third-party
defendant to relate back to the date of commencement of the third-party action for purposes of
computing the Statute of Limitations period where the third-party action is commenced prior to
the expiration of the applicable statute of limitations and the direct claim by plaintiff is based on
the same transaction or occurrence as the third-party action.”).
A review of the New York Court of Appeals’ seminal decision in Duffy v Horton Mem.
Hosp., 488 N.E.2d 820 (1985), is useful. In Duffy, the plaintiff and her husband filed a medical
malpractice action against the defendant hospital alleging that defendants had failed to recognize
and diagnose an early stage of the husband’s lung cancer. Id. at 821. The defendants brought a
timely third-party action against the husband’s family physician, who had also treated the
husband. Id. Following the expiration of the statute of limitations and the husband’s death, the
plaintiff sought to amend her complaint to name the family physician as a direct defendant. Id.
When determining whether the plaintiff’s direct claim against the third-party family
physician was timely, the Court of Appeals discussed the policy underlying the statute of
limitations bar:
A defendant should be secure in his reasonable expectation that the
slate has been wiped clean of ancient obligations, and he ought not
to be called on to resist a claim where the evidence has been lost,
memories have faded, and witnesses have disappeared. There is
also the need to protect the judicial system from the burden of
adjudicating stale and groundless claims.
10

An amendment which merely adds a new theory of recovery or
defense arising out of a transaction or occurrence already in
litigation clearly does not conflict with these policies. A party is
likely to have collected and preserved available evidence relating
to the entire transaction or occurrence and the defendant’s sense of
security has already been disturbed by the pending action.
Id. at 822-23 (internal quotations & citations omitted). In holding that the plaintiff’s direct claim
against the third-party family physician related back to the original third-party complaint
pursuant to N.Y. C.P.L.R. 203(e),6 the Court of Appeals explained that, “where, within the
statutory period, a potential defendant is fully aware that a claim is being made against him with
respect to the transaction or occurrence involved in the suit, and is, in fact, a participant in the
litigation, permitting an amendment to relate back would not necessarily be at odds with the
policies underlying the Statute of Limitation,” and thus, “[i]n such cases, there is room for the
exercise of a sound judicial discretion to determine whether, on the facts, there is any operative
prejudice precluding a retroactive amendment.” Id. As such, under New York law, a plaintiff
can amend his or her complaint to assert a direct claim against a third-party defendant, absent
prejudice to that defendant, if the third-party complaint was served within the applicable
limitations period “where the third-party complaint and the amended complaint are based on the
same transaction or occurrence.” Id. at 821.
Here, Plaintiff’s direct claim against Third-party Defendant Ray’s Rapid arises out of the
same transaction or occurrence as the Third-party Complaint, namely the March 2, 2011 motor
vehicle accident. See Third-party Complaint, ECF No. 7 ¶¶ 4, 9-10; compare PAC, ECF No. 52,
p. 17 ¶¶ 13-14. Third-party Defendant Ray’s Rapid did not even argue in its opposition, much

6

N.Y. C.P.L.R. 203(e) was redesignated N.Y. C.P.L.R. 203(f) in 1992.
11

less establish, that it will be prejudiced if Plaintiff’s motion is granted,7 and it is indisputable that
it had notice of the claim sought to be interposed, as well as notice of the occurrence upon which
those claims are based. Accordingly, Plaintiff’s direct claim against Third-party Defendant
Ray’s Rapid relates back to August 22, 2013, when Ray’s Rapid was served as a third-party
defendant, and is thus timely. See, e.g., Smith, 2011 U.S. Dist. LEXIS 44018, at *3-4 (finding
that the plaintiff’s direct claim against a third-party defendant related back to the filing of the
third-party complaint pursuant to New York state law and was thus, timely); Deputron v. A & J
Tours, Inc., 93 A.D.3d 629, 629-30 (2nd Dep’t 2012) (same); Richards v. Passarelli, 77 A.D.3d
903, 905 (2nd Dep’t 2010) (affirming the granting of a motion to amend where the third-party
corporate defendant, “which had been impleaded as a third-party defendant prior to the
expiration of the limitation period applicable to the plaintiff’s claim, was fully aware that a claim
was being made against it with respect to the plaintiff’s accident, and was a participant in the
litigation”); Boxhorn v Alliance Imaging, Inc., 74 A.D.3d 1735, 1735-36 (4th Dep’t 2010) (“In
support of her motion, plaintiff established that the relation-back doctrine applied for purposes of
computing the statute of limitations because her claims against the third-party defendants related
back to those asserted in the third-party complaint, which was timely served.”); Bevilacqua v
Bloomberg, L.P., 70 A.D.3d 411, 413-14 (1st Dep’t 2010) (holding that, “[b]ecause the second
third-party complaint was properly filed and served, plaintiffs’ claims against [the third-party
defendants], asserted in the amended complaint, relate back, for statute of limitation purposes, to
the date of service of the second third-party complaint”); Anderson v. Carney, 161 A.D.2d 1002,

7

In fact, neither Ray’s Rapid nor Plaintiff even touched on the applicability (or
inapplicability) of the relation-back doctrine under New York law in their respective motion
papers. Instead, both parties focused entirely on the impact of the relation-back doctrine under
federal law (i.e., Fed. R. Civ. P. 15(c)(1)(C)), which—as explained in footnote 8, infra—need not
be considered at this time.
12

1003 (3rd Dep’t 1990) (citing Duffy and explaining, “[w]e are instructed that [N.Y. C.P.L.R.
203(f)] is available to add third-party defendants as defendants after the [s]tatute of [l]imitations
has run as an application addressed to the sound discretion of the trial court upon a motion to
amend the complaint, and requires the court to determine, as a question of fact, whether any
prejudice will result from a retroactive amendment”).8
Therefore, Plaintiff’s motion seeking leave to amend the Complaint to assert a negligence
claim against Third-party Defendant Ray’s Rapid is granted insofar as it relates back to the filing
of the Third-party Complaint and is thus, timely.
D.

Effect Of Adding Ray’s Rapid On This Court’s Subject-Matter Jurisdiction

Although Plaintiff’s direct claim against Third-party Defendant Ray’s Rapid is
permissible under New York’s relation-back doctrine, the Court must address the effect of such
an amendment, if any, on the Court’s subject-matter jurisdiction. Prior to the filing of Plaintiff’s
motion to amend, the Court requested that the parties additionally brief the question of whether
adding Ray’s Rapid as a direct defendant would destroy diversity and thus, eliminate this Court’s
subject-matter jurisdiction. See 12/21/15 M&O, ECF No. 48, p. 21. Plaintiff addressed the
issue, albeit extremely briefly, see Plaintiff’s Motion to Amend (“Pl’s Mot.”), ECF No. 52,
Attachment #1, p. 11-12, while Third-party Defendants failed entirely to address it, see generally
Third-party Defendants’ Opposition, ECF No. 53, Attachment #1.

8

Because this Court finds that Plaintiff’s Amended Complaint relates back to the filing of
the Third-party Complaint under New York state law, the Court need not discuss whether the
amendment would also relate back under federal law. See Laureano v. Goord, 2007 U.S. Dist.
LEXIS 74754, at *15-16 (S.D.N.Y. Sept. 4, 2007), adopted by 2007 U.S. Dist. LEXIS 72514
(S.D.N.Y. Sept. 28, 2007) (“Whether a claim relates back should be analyzed under both federal
and state law, and whichever law that affords a more forgiving principle of relation back should
be utilized.”) (internal quotations omitted).
13

Plaintiff fleetingly argues that diversity of citizenship will not be destroyed because, at
the time the within lawsuit was filed, Plaintiff was a citizen of New York and Ray’s Rapid was a
citizen of Georgia. See Pl’s Mot., ECF No. 52, Attachment #1, p. 11. Although it is undisputed
that Ray’s Rapid is, and has always been, a Georgia citizen, see 28 U.S.C. § 1332(c)(1) (“[A]
corporation shall be deemed to be a citizen of every State . . . by which it has been incorporated .
. . .”), Plaintiff’s citizenship—in this Court’s view—remains unclear.
According to Plaintiff’s Complaint, which was filed in February 2013, and his Proposed
Amended Complaint, which was filed in February 2016, Plaintiff resides in New York. See
Complaint, ECF No. 1 ¶ 1; PAC, ECF No. 52, Attachment #1, p. 15 ¶ 1. Plaintiff likewise filed
an affidavit in support of his motion seeking leave to amend, which was notarized on January 26,
2016, in which he similarly claims to reside in New York. See Plaintiff’s Affidavit, ECF No. 52,
p. 5 ¶ 1. Nonetheless, for reasons which will not be repeated herein, this Court previously
concluded that Plaintiff was a Georgia domiciliary as of at least March 2011. See 12/21/15
M&O, ECF No. 48, p. 13-15. More significantly, pursuant to this Court’s inquiry into publically
available Georgia records, in 2012, 2015 and 2016, Plaintiff filed with the Georgia Secretary of
State9 an annual registration on behalf of Ray’s Rapid as the corporation’s registered agent,
which appears to indicate that Plaintiff resides in Georgia.10 Notably, Ray’s Rapid’s 2016 annual
registration was filed on February 3, 2016, just eight (8) days after Plaintiff’s affidavit in support
of his motion seeking leave to amend was notarized.

9

See
https://ecorp.sos.ga.gov/BusinessSearch/BusinessInformation?businessId=1263586&businessTy
pe=Domestic%20Limited%20Liability%20Company (last visited April 20, 2016).
10

According to the Georgia Secretary of State’s website, an annual registration was filed on
behalf of Ray’s Rapid in 2013, although the document is inaccessible. Along the same vein, a
document appearing to dissolve the corporation was filed in 2014, although it is unclear who
filed the document or its legal effect.
14

Further complicating the issue is a change in the relevant time frame. For purposes of the
choice-of-law analysis conducted earlier in this litigation, the Court was required to determine
the parties’ domiciles as of the time of the motor-vehicle accident (i.e., March 1, 2011). See
Youngman v. Robert Bosch LLC, 923 F. Supp. 2d 411, 420 (E.D.N.Y. 2013). For purposes of
diversity, however, the Court must determine the parties’ domiciles as of the filing of the
Proposed Amended Complaint. See Chen v. Sun, 13 Civ. 280 (ALC) (KNF), 2016 U.S. Dist.
LEXIS 7253, at *3 (S.D.N.Y. Jan. 21, 2016) (“While the existence of jurisdiction ordinarily
depends on the facts as they existed when the complaint was filed, ‘when a plaintiff files a
complaint in federal court and then voluntarily amends the complaint, courts look to the
amended complaint to determine jurisdiction.’”) (quoting Rockwell Int’l Corp. v. United States,
549 U.S. 457, 473-74 (2007)). At this point, the Court is unable to determine Plaintiff’s
citizenship as of February 2016 (i.e., when Plaintiff sought leave to amend the Complaint),
particularly against the backdrop of the conflicting evidence available to the Court.11
IV.

CONCLUSION

For the reasons stated above, Plaintiff’s motion for leave to amend the Complaint is
granted insofar as it relates back to the filing of the Third-party Complaint and is thus
timely but remains pending subject to future communication with the Court with regard to
Plaintiff’s citizenship.
In light of the above, a status conference is scheduled for May 17, 2016 at 5:00 p.m.
The parties should be prepared to discuss the following: (1) Plaintiff’s citizenship for diversity

11

Assuming for a moment that this Court ultimately concludes that Plaintiff is a Georgia
domiciliary for diversity purposes, Plaintiff’s assertion of a direct claim for negligence against
Ray’s Rapid would destroy diversity. See Herrick Co. v. SCS Commc’ns, Inc., 251 F.3d 315,
322 (2d Cir. 2001) (“[D]iversity jurisdiction is available only when all adverse parties to a
litigation are completely diverse in their citizenships.”).
15

purposes; (2) what information, if any, need be exchanged by the parties to determine Plaintiff’s
citizenship during the relevant time frame; and (3) whether Plaintiff’s negligence claim against
the current Defendants and/or Ray’s Rapid could be timely filed in state court in New York,
Georgia or other jurisdictions in the event this Court dismisses the action due to a loss of subjectmatter jurisdiction.
In addition, though not explicitly briefed by the parties, there has been suggestion by both
Plaintiff and Third-party Defendants in their respective motion papers of a possible declaratory
judgment action. Accordingly, counsel should also be prepared to discuss this topic.
Dated: Brooklyn, New York
April 27, 2016

Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge

16