Annese v. US Xpress Inc et al
Filing
108
MEMORANDUM OPINION AND ORDER granting 90 FIRST MOTION to Amend/Correct Complaint filed by Andrea T Annese. Signed by Honorable Robin J. Cauthron on 12/18/18. (wh)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANDREA T. ANNESE,
Plaintiff,
vs.
U.S. XPRESS, INC. and
GLENN ANDERS,
Defendants.
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No. CIV-17-655-C
MEMORANDUM OPINION AND ORDER
This case arises from events that occurred on March 9, 2016. Plaintiff Andrea T.
Annese alleges Defendant Glenn Anders negligently drove a tractor-trailer owned by
Defendant U.S. Xpress and caused an accident which resulted in damages. Plaintiff alleges
that Defendant U.S. Xpress is vicariously liable for the negligent actions of Defendant Anders
under a respondeat superior or vicarious liability theory. Defendant U.S. Xpress admitted in
its Answer that Defendant Anders was acting within the course and scope of his employment
while driving the tractor-trailer. Plaintiff also asserts a negligent entrustment claim against
Defendant U.S. Xpress, Inc. Plaintiff filed a Motion for Leave of Court to file an Amended
Complaint (Dkt. No. 90) and requests leave of the Court to file an Amended Complaint to
assert a claim of negligent hiring, training, retention, and supervision against Defendant U.S.
Xpress, Inc.
Plaintiff relies on the recent Oklahoma Supreme Court opinion in Fox v. Mize, 2018
OK 75, 428 P.3d 314 (2018), as the basis to amend her Complaint to include a negligent hiring
claim. Defendants argue that Plaintiff did not properly file her Motion in the timeframe
provided by this Court’s Scheduling Orders. Finally, Defendants argue that Plaintiff’s Motion
unfairly affects Defendants’ ability to prepare their defense. Fed. R. Civ. P. 15(a)(2) states
that “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.” The Supreme
Court has articulated this particular standard with regard to Rule 15:
If the underlying facts or circumstances relied upon by a plaintiff may be a
proper subject of relief, he ought to be afforded an opportunity to test his claim
on the merits. In the absence of any apparent or declared reason–such as 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.–the leave sought should, as the rules require, be ‘freely given.’
Foman v. Davis, 371 U.S. 178, 182 (1962). From the record before the Court, it appears that
Plaintiff’s claim may be a proper basis for relief that should be tested on the merits. As a result
of the facts and circumstances brought forth by Plaintiff, this Court will grant leave to amend
when justice so requires. This Court finds that Plaintiff’s Motion should be granted and
Plaintiff is given leave to amend her Complaint.
CONCLUSION
Accordingly, Plaintiff’s Motion for Leave of Court to File an Amended Complaint
(Dkt. No. 90) is GRANTED. Plaintiff shall file her Amended Complaint within five days from
the date of this Order.
IT IS SO ORDERED this 18th day of December, 2018.
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