Geris et al v. DiSilva Taunton Express Inc. et al

Filing 101

DECISION AND ORDER granting Plaintiffs' 90 MOTION to Dismiss the Second-Amended Answer, and denying Defendants' 95 Cross MOTION to Amend/Correct the Answer. A telephone conference is scheduled for 7/23/2014 at 1:15 p.m. Signed by Hon. John T. Curtin on 4/16/2014. (JEC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LORNA GERIS, Individually, and as
Personal Representative of the Estate of FRED GERIS,
and as Parent and Natural Guardian of
CHRISTOPHER, MATTHEW, and KRISTINE GERIS;
and, THE WORKPLACE SAFETY &
INSURANCE BOARD OF ONTARIO,
as Subrogee,
Plaintiffs,
-vs-

07-CV-376-JTC

DiSILVA TAUNTON EXPRESS, INC., and
JOSE L. MARTE,
Defendants.

In this diversity action, plaintiffs seek damages for wrongful death arising out of a
motor vehicle accident which occurred on February 22, 2006, resulting in the death of
plaintiffs’ decedent, Fred Geris. Now pending are plaintiffs’ motion to dismiss defendants’
second amended answer containing two previously unpleaded affirmative defenses, which
was filed and served on December 11, 2013 without written consent or leave of court, and
defendants’ subsequently-filed cross-motion for leave to amend the answer. For the
reasons that follow, plaintiffs’ motion to dismiss is granted, and defendants’ cross-motion
for leave to amend is denied.

BACKGROUND
Plaintiffs Lorna Geris, as personal representative of the estate of Fred Geris, and
the Workplace Safety & Insurance Board of Ontario, Canada (“WSIB”), as subrogee

seeking reimbursement of amounts paid as workers’ compensation survivor benefits,
commenced this action on May 2, 2007, by filing a summons and complaint in New York
Supreme Court, Erie County, asserting causes of action for wrongful death, conscious
suffering, compensatory damages, and punitive damages against defendants DiSilva
Taunton Express, Inc. (“DTE”) and its employee Jose Marte (Item 1, pp. 8-15). The case
was removed to this court by notice of removal dated June 13, 2007, on the basis of
complete diversity of citizenship of the parties (id. at 2). Defendants filed an answer on
June 18, 2007, asserting nine affirmative defenses–including defenses based on
N.Y.C.P.L.R. Article 16 regarding the limited liability of joint tortfeasors, and Ms. Geris’s
election to receive survivor benefits under Ontario’s Workplace Safety and Insurance Act
(“WSIA”) (see Item 2)
Following substantial litigation, including resolution of discovery disputes, several
extensions of the deadline for fact discovery, and preliminary attempts at mediation,
plaintiffs were granted leave to file an amended complaint on February 3, 2012, adding
claims on behalf of Ms. Geris and her children for compensatory damages based on loss
of “love, society, companionship, advice, care, guidance and support” (Item 54, ¶¶ 42, 46).
Defendants promptly filed an amended answer on February 17, 2012, asserting the same
nine affirmative defenses (Item 55), followed by a “corrected” amended answer filed on
February 24, 2012, adding a tenth additional affirmative defense based on lack of subject
matter jurisdiction (Item 57). The court then issued a series of orders approving an
amended schedule for completion of further mediation, fact and expert discovery, and
dispositive motion practice (Item 56).

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On December 17, 2012, defendants moved for summary judgment raising several
legal arguments based primarily on the grounds that Ms. Geris’s claims against DTE and
Mr. Marte, and the claims based on WSIB’s right to subrogation, were barred by operation
of New York law or were waived by virtue of Ms. Geris’s acceptance of worker’s
compensation survivor benefits under Ontario law. Defendants also sought dismissal of
plaintiffs’ claim for punitive damages for failure to present facts showing wanton and
reckless disregard for public safety. Plaintiffs responded to the motion, and cross-moved
for partial summary judgment on liability based on Mr. Marte’s negligence as a matter of
law, as evidenced by his conviction in state court on a guilty plea to the charge of failing
to yield the right of way in violation of New York Vehicle & Traffic Law.
By decision and order entered July 25, 2013, this court denied both motions. Geris
v. DiSilva Taunton Exp., Inc., 2013 WL 3873072 (W.D.N.Y. July 25, 2013) (Item 83). The
court rejected defendants’ challenges based on operation of state law or waiver, and found
triable issues of fact with respect to the punitive damages claim. See id., 2013 WL
3873072, at *7-16. With regard to plaintiffs’ cross-motion, the court determined that it was
precluded from entering partial judgment in plaintiffs’ favor on liability–notwithstanding the
persuasive proof of defendants’ negligence as a matter of law–because reasonable jurors
could disagree as to the probative value of the opinions of defendants’ accident
reconstruction experts on the issue of Mr. Geris’s comparative negligence. See id. at *1618.
Following further conference with counsel, the court adopted the parties’ joint
proposal establishing a schedule for completion of the depositions of plaintiffs’ experts by
December 15, 2013, and completion of depositions of defendants’ experts by March 15,
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2014 (see Items 87 & 88). Then, on December 11, 2013, without obtaining plaintiffs’
consent or leave of court, defendants filed a “Second Amended Answer” eliminating the
subject matter jurisdiction defense and asserting the following two previously unpleaded
“affirmative” defenses:

TENTH AFFIRMATIVE DEFENSE
22.
The plaintiffs have failed to sue all parties that the plaintiffs’
claim have responsibility for the accident, for Mr. Geris’s ejection from the
tractor trailer, and for plaintiffs’ damages, if they are entitled to any.

ELEVENTH AFFIRMATIVE DEFENSE
23.
Any liability or responsibility for payment of the defendants is
limited to their equitable share, pursuant to CPLR Article 14 and Article 16
and any other applicable statute, law, or rule.

(Item 89, ¶¶ 22, 23).
Plaintiffs have now moved to dismiss the second amended answer for failing to
comply with the requirements of Rule 15 of the Federal Rules of Civil Procedure, or in the
alternative, to strike the newly-added defenses for failure to comply with Fed. R. Civ. P.
12(f) (Item 90). In response, defendants filed a cross-motion for leave to amend (Item 95).
For the reasons that follow, plaintiffs’ motion to dismiss the second amended
answer is granted, and defendants’ motion for leave to amend the answer is denied.

DISCUSSION
Under Rule 15, a party may amend its pleading “once as a matter of course within
… 21 days after serving it ….” Fed. R. Civ. P. 15(a)(1)(A). “In all other cases, a party may

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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).
Where, as here, a party has filed an untimely amended pleading without the
opposing party’s written consent or obtaining prior leave of court, some courts have held
that the amended pleading is without legal effect and should be stricken. See, e.g.,
Chevron Corp. v. Donziger, 2013 WL 624648, at *2 (S.D.N.Y. Feb. 20, 2013) (citing Murray
v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (“Generally speaking, an amendment that
has been filed or served without leave of court or consent of the defendants is without legal
effect.”); U.S. ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296 (5th Cir. 2003)
(“[F]ailing to request leave from the court when leave is required makes a pleading more
than technically deficient. The failure to obtain leave results in an amended [pleading]
having no legal effect.”), cited in Bristol Village, Inc. v. Louisiana–Pacific Corp., 916 F.
Supp. 2d 357, 362 (W.D.N.Y. 2013). In other cases, courts have allowed untimely
amended pleadings served without consent or judicial permission to stand “as long as the
court would have granted leave to amend if it had been sought and none of the parties
would be prejudiced by allowing the change.” Little v. National Broadcasting Co., Inc., 210
F. Supp. 2d 330, 372 (S.D.N.Y. 2002) (citing Charles Alan Wright, Arthur R. Miller & Mary
Kay, 6 FED. PRAC. & PROC. CIV. 2d § 1484 (“Permitting an amendment without formal
application to the court under these circumstances is in keeping with the overall liberal
amendment policy of Rule 15(a) and the general desirability of minimizing needless
formalities.”)).

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As often noted by the Second Circuit, “[l]eave to amend, though liberally granted,
may properly be denied for: ‘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, etc.’ ” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)); see also State Teachers Retirement Bd. v.
Fluor Corp. 654 F.2d 843, 856 (2d Cir. 1981) (“Reasons for a proper denial of leave to
amend include undue delay, bad faith, futility of the amendment, and perhaps most
important, the resulting prejudice to the opposing party.”). Although “[m]ere delay, …
absent a showing of bad faith or undue prejudice, does not provide a basis for the district
court to deny the right to amend…,” Ruotolo, 514 F.3d at 191, “the longer the period of an
unexplained delay, the less will be required of the nonmoving party in terms of a showing
of prejudice.” Advocat v. Nexus Industries, Inc., 497 F. Supp. 328, 331 (D.Del.1980),
quoted in Evans v. Syracuse City School Dist., 704 F.2d 44, 47 (2d Cir. 1983).
As a practical matter, … any delay in asserting an affirmative defense for a
significant period of time will almost invariably result in some “prejudice” to
the nonmoving party. … [T]he proper standard is one that balances the
length of the delay against the resulting prejudice.
Advocat, 497 F. Supp. at 331 (quoted in Evans, 704 F.2d at 46-47).
In this case, as noted above, defendants’ second amended answer was filed on
December 11, 2013, 22 months after plaintiffs’ amended complaint was filed on February
3, 2012. According to defendants, it was not until the December 3, 2013 deposition of
plaintiffs’ seat belt expert, Stephen Syson, that it became apparent how strongly plaintiffs
intended to rely on the theory that Mr. Geris’s death may have been caused at least in part
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by a defective seat belt manufactured by Indiana Mills Manufacturing, Inc., and the second
amended answer was filed shortly thereafter to put plaintiffs on clear notice that the failure
to name Indiana Mills as a defendant allows defendants to point to the “empty chair” at
trial, obtain an apportionment of liability against Indiana Mills as joint tortfeasor under
C.P.L.R. Article 16, and reduce defendants’ equitable share accordingly under C.P.L.R.
Article 14.
However, the court’s review of the record renders this justification for the delay in
pleading the “empty chair/equitable share” defenses unavailing. Mr. Syson’s January 18,
2011 expert report, stating the basis for his defective Indiana Mills seat belt theory, was
disclosed to defendants on February 1, 2011, in accordance with the discovery schedule
then in effect (see, e.g., Item 39). This disclosure should have put defendants on notice
that plaintiffs intended to rely at least to some extent on the theories of causation put forth
by their retained seat belt expert, and the nearly three-year delay in attempting to assert
plaintiffs’ failure to sue the seat belt manufacturer as an affirmative defense is certainly
significant, if not inordinately lengthy. Considering the prejudice to plaintiffs as measured
by the time and resources spent during that period engaging in discovery and dispositive
motion practice to address the difficult legal and factual issues raised by the properly
interposed affirmative defenses, as well as the further delay in reaching a final disposition
in this action likely to result from the parties’ attempts to address the previously unpleaded
matters raised by the additional defenses, this delay must be deemed to be undue.
The court’s difficulty in overlooking this undue delay is compounded by its doubts
about the necessity of granting leave to amend in order to raise these matters. With
respect to the proposed Tenth Affirmative Defense based on plaintiffs’ failure to sue all
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potentially responsible parties, “[i]t has long been the rule that it is not necessary for all joint
tortfeasors to be named as defendants in a single lawsuit.” Temple v. Synthes Corp., 498
U.S. 5, 8 (1990). Following this rule, “[c]ourts have held that since a tortfeasor who is
found liable can seek contribution from a joint tortfeasor, defendants are not prejudiced by
the failure to join all tortfeasors in one action.” Chang Young Bak v. Metro-North R. Co.,
2013 WL 1248581, at *4 (S.D.N.Y. Mar. 26, 2013) (citing Crowthers McCall Pattern, Inc.
v. Lewis, 129 B.R. 992, 1003 (S.D.N.Y. 1991)).
With respect to the proposed Eleventh Affirmative Defense based on the limitation
of liability provisions of C.P.L.R. Article 16, this defense was asserted in the original answer
and would survive dismissal of the improperly filed second amended answer. Significantly,
Article 16—which allows a joint tortfeasor to limit its liability for non-economic loss1 to its
proportional share upon proof that it is fifty percent or less culpable for the plaintiff's injury
(see, e.g., Bifaro v. Rockwell Automation, 269 F. Supp. 2d 143, 146 (W.D.N.Y. 2003))
—expressly states that it does not apply to “any person held liable by reason of his use,
operation, or ownership of a motor vehicle ….” C.P.L.R. § 1602(6). The claims for noneconomic loss in this action (in addition to wrongful death damages), which were pleaded
and have been extensively litigated as claims for damages arising from defendants’ use,
operation, and ownership of a tractor-trailer, are clearly subject to the express exemption
of § 1602(6), precluding defendants from asserting Article 16 protection from imposition
of joint and several liability for the consequences of the conduct giving rise to any noneconomic losses suffered by plaintiffs. Cf. Bifaro, 269 F. Supp. 2d at 146 (Article 16's

1

As defined in Article 16, “ ‘non-economic loss' includes but is not limited to pain and suffering,
mental anguish, loss of consortium or other damages for non-economic loss.” N.Y.C.P.L.R. § 1600.

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limitation of liability remains inapplicable, and traditional rule of joint and several liability
remains in effect, for economic loss, for parties allocated more than fifty percent of the
liability, and for defendants who satisfy one or more of the exemptions set forth in CPLR
§ 1602).
Moreover, there is ample appellate level support for the principle that the limitation
of liability afforded by Article 16, to the extent it applies, is statutory in nature and is not
required to be pleaded as an affirmative defense. See, e.g., Cooper v. Burt's Reliable,
Inc., 964 N.Y.S.2d 195, 198 (App. Div. 2d Dep’t 2013); Arnold v. Siegel, 745 N.Y.S.2d 431,
431 (App. Div. 2d Dep’t 2002); Marsala v. Weinraub, 617 N.Y.S.2d 809, 810 (App. Div. 2d
Dep’t 1994).
The proposed Eleventh Affirmative Defense based on C.P.L.R. Article 14 fares no
better. C.P.L.R. § 1401 provides that:
[T]wo or more persons who are subject to liability for damages for the same
personal injury, injury to property or wrongful death, may claim contribution
among them whether or not an action has been brought or a judgment has
been rendered against the person from whom contribution is sought.
Defendants also specifically refer to C.P.L.R. § 1402, which provides that:
The amount of contribution to which a person is entitled shall be the excess
paid by him over and above his equitable share of the judgment recovered
by the injured party; but no person shall be required to contribute an amount
greater than his equitable share. The equitable shares shall be determined
in accordance with the relative culpability of each person liable for
contribution.
The doctrine embodied by these provisions was adopted by the state legislature as
a device to ensure fairness as among tortfeasors found to be jointly liable for the losses
suffered by a plaintiff, by providing a statutory device to distribute the losses more equitably
among the culpable parties according to their relative degree of fault, while leaving the
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claimant’s right to recovery “generally unaffected ….” Sommer v. Federal Signal Corp. 79
N.Y.2d 540, 556-57 (1992) (citing C.P.L.R. § 1404 (“Nothing contained in this article shall
impair the rights of any person entitled to damages … any right of indemnity or subrogation
under existing law.”)); see also Jones v. Kalache, 915 N.Y.S.2d 479, 482 (Sup. Ct. 2011).
In this case, plaintiffs have chosen to sue only the owner and operator of the tractortrailer involved in the accident resulting in the injury to Mr. Marte, and—whether through
inadvertence, mistake, or strategy—have not sought recovery from Indiana Mills or any
other potential joint tortfeasor who might have contributed in some way to the harm
suffered. By its terms, Article 14 affords defendants the right to seek contribution from a
joint tortfeasor “whether or not an action has been brought or a judgment has been
rendered against the person from whom contribution is sought …,” and there is nothing in
the statue that would require a defendant to plead that right as an affirmative defense to
the direct action against it.
Based on these considerations, the court finds that defendants have failed to
demonstrate that justice requires granting leave to file a second amended answer in order
to assert previously unpleaded affirmative defenses.

CONCLUSION
For the foregoing reasons, plaintiffs’ motion (Item 90) to dismiss the second
amended answer is granted, and defendants’ motion (Item 95) for leave to amend the
answer is denied. The “corrected” amended answer filed on February 24, 2012 (Item 57)
shall remain as the operative responsive pleading in the case.

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A telephone conference with counsel is scheduled for July 23, 2014, at 1:15 p.m.,
to discuss a schedule for further proceedings in the case. The court will initiate the call.

So ordered.
\s\ John T. Curtin
JOHN T. CURTIN
United States District Judge
Dated:

April 16, 2014

p:\pending\2007\07-276.apr16.2014

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