Zurich North American Insurance Company et al v. Rodriguez et al
Filing
19
ORDER granting in part and denying in part 13 Motion to Amend/Correct all in accordance with the Opinion preceding the order. Signed by Magistrate Judge William I. Arbuckle on 09/06/2017 (Arbuckle, William)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ZURICH NORTH AMERICAN INS.
CO. et al.,
Plaintiffs
v.
JOSE A. RODRIGUEZ, et al.,
Defendants
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CIVIL NO. 4:17-cv-0667-WIA
(ARBUCKLE, M.J.)
OPINION & ORDER ON MOTION TO AMEND COMPLAINT
(Doc. 13)
I.
BACKGROUND & PROCEDURAL HISTORY
This case arises from a chain reaction collision on Interstate 80 during a
snow storm on March 29, 2015. On March 17, 2017, twelve days before the
expiration of the statute of limitations, Plaintiffs Zurich North American Insurance
Company, a/s/o Minuteman Spill Response, LLC a/k/a and d/b/a Minuteman
Environmental Services and Minuteman Spill Response, Inc. a/k/a and d/b/a
Minuteman Environmental Services filed a Complaint in the Court of Common
Pleas of Clinton County against Defendants Jose A. Rodriguez, Hunanyan Garik,
and Norayr Vardanyan, d/b/a VV Trucking.
Defendant, Norayr Vardanyan d/b/a VV Trucking filed a notice of removal
on April 13, 2017, (Doc. 1) alleging diversity of citizenship (Doc. 1, ¶¶1,15).
Page 1 of 10
Answers were filed by Defendant Norayr Vardanyan on April 20, 2017 (Doc. 3)
and Defendant Rodriquez on July 6, 2017 (Doc. 9).1 On August 3, 2017 Plaintiff
filed a Motion for Leave to File an Amended Complaint with a proposed amended
complaint attached (Doc. 13).2
The short version of the crash as gleaned from the proposed amended
complaint (Doc. 13-1, ¶8) is that Vehicle #1 (Minuteman, insured by Zurich) was
stopped on the side of the road during a snow squall. Vehicle #2 (owned by
Rodriguez) crashed into Vehicle #1.
Then Vehicle #3 (Owned by Norayr
Vardanyan dba VV Trucking, and driven by either Garik Hunanyan or Vardan
Vardanyan) crashed into Vehicle #2, pushing it again into Vehicle #1. According
to the Motion to Amend (Doc. 13, ¶7) the police report of the accident states that
Hunanyan Garik was the driver and sole occupant of vehicle #3. According to the
Motion to Amend (Doc. 13, ¶6) “Defendant’s [sic] only disclosed that Hunanyan
Garik was not the driver of the truck that caused the damage to Plaintiff’s insured’s
vehicle in its [sic] 26a disclosures.”
1
For purposes of completeness it should be noted Defendant Norayr Vardanyan d/b/a VV
Trucking filed a crossclaim against Defendant Rodriguez as a part of the answer (Doc. 3) to the
original complaint (Doc. 1-1). Rodriguez filed and answer to the cross-complaint (Doc. 10).
The crossclaim and answer do not factor into this decision.
2
That motion did not include a certificate of concurrence/non-concurrence and a proposed order
as required by the local rules 5.1(g) and 7.1. The Plaintiff was notified of this omission by the
Clerk’s Office and then filed Doc. 15 which was identical to Doc. 13 but added the required
certificate and proposed order.
Page 2 of 10
The Motion to Amend the Complaint does not comply with Local Rule
15.1(b)(2) which directs that:
The party filing the motion requesting leave to file an amended
pleading shall provide: (1) the proposed amended pleading as set
forth in subsection (a) of this rule, and (2) a copy of the original
pleading in which stricken material has been lined through and any
new material has been inserted and underlined or set forth in boldfaced type (emphasis added).
This failure, and the lack of specificity in Plaintiffs’ motion (Doc. 13, pp. 12) and supporting brief (Doc. 13, pp. 3-5), required the court to search the Original
Complaint (Doc. 1), the Proposed Amended Complaint (Doc. 13-1), and the Joint
Case Management Plan (Doc. 7) to determine what changes were proposed. The
Motion to Amend the Complaint states that Plaintiffs intend to “add parties [sic]
that were not named in the Original Complaint.” (Doc. 13, ¶5). My review of the
Proposed Amended Complaint however can only find one additional party, Vardan
Vardanyan (alleging that he might be the driver of vehicle #3). I also note that, in
the Joint Case Management Plan, Defendant Rodriguez denies being the driver of
vehicle #2 but apparently does not deny being the owner.3 In both their Original
Complaint (Doc. 1-1, p. 7, ¶11) and proposed Amended Complaint (Doc. 13-1, ¶8),
3
“Defendant Rodriguez maintains that he was not operating his vehicle but was riding as a
passenger in his vehicle at the time of the subject accident. So that there is no legal liability
against him since he was not driving at the time and there is no other basis to hold him liable for
the subject accident.” (Doc. 7, p. 2).
Page 3 of 10
Plaintiffs claim that Defendant Rodriguez was both the owner and driver of vehicle
#2.4
In their Motion to Amend (Doc. 13), Plaintiffs have proffered that the police
report filed after this accident names Hunanyan Garik as the sole occupant and also
the driver of vehicle #3; and that despite two years of discussions between the
insurance carriers for the parties, Plaintiffs first learned of the existence of the
proposed additional defendant Vardan Vardanyan (the probable driver of vehicle
#3) when the Rule 26 disclosure was filed by Defendant Norayr Vardanyan (the
owner of vehicle #3). Plaintiffs allege that they promptly filed the Motion for
Leave to Amend on August 10, 2017 but do not disclose when the Rule 26(a)
Disclosure was received. Plaintiffs’ Motion to Amend is more than two years from
the occurrence of the incident that gives rise to this litigation.
In response to Plaintiffs’ Motion to Amend Defendant Norayr Vardanyan
d/b/a VV Trucking filed a Brief in Opposition raising only one objection – that
Plaintiffs are barred from adding a new defendant based on the statute of
limitations. (Doc.16). Defendant Rodriguez then filed a letter joining in the
objection for the same reason. (Doc.17).
4
Plaintiffs claim the Minuteman vehicle was “involved in an accident with vehicles driven by
the Defendants Jose A. Rodriguez and Hunanyan Garik.” Statement by Plaintiff in the Joint
Case Management Plan (Doc. 7, p. 2)(emphasis added).
Page 4 of 10
II.
DISCUSSION
Every discussion of a procedural question should begin with and be guided
by Rule 1 of the Federal Rules of Civil Procedure. Rule 1 provides that the Federal
Rules of Civil Procedure “should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and inexpensive determination of
every action and proceeding. (emphasis added)”
Rule 15 of the Federal Rules of Civil Procedure governs amended pleadings.
Pursuant to this rule, “a party may amend its pleading only with the opposing
party's written consent or the court's leave. (emphasis added)” Furthermore, this
rule expressly provides that, “[t]he court should freely give leave [to amend] when
justice so requires.” (emphasis added).
However, upon review of Plaintiffs’
motion, and Defendants’ response, I find that I need not conduct a merits analysis
of whether justice requires an amended complaint because Defendants do not have
standing to object to the addition of a new defendant by raising a statute of
limitations defense.
A.
DEFENDANTS LACK STANDING TO RAISE AN
AFFIRMATIVE DEFENSE ON BEHALF OF A NEW PARTY
Whether the alleged actions of some defendants and their insurers, if true,
are sufficient to toll the statute of limitations is not before me. Instead, I must
Page 5 of 10
decide whether Defendants may raise a statute of limitations defense on behalf of a
new defendant named in a proposed amended complaint.
Rule 15(c) of the Federal Rules of Civil Procedure governs the relation back
of amended pleadings. Rule 15(c) provides that an amended pleading that adds a
new party relates back to the date of the original pleading where: (1) the
amendment asserts a claim or defense that arose out of the conduct, transaction or
occurrence set out in the original complaint; and (2) within 90 days of the filing of
the original complaint the new party either received notice or “knew or should
have known” that the action would have been brought against it but for a mistake
of identity.
I conclude that the issue of whether or not the facts of this case satisfy the
requirements of Rule 15(c) is a matter to be determined if and when Mr. Vardan
Vardanyan (or anyone else) is properly joined and decides to raise the statute of
limitations defense. As explained by the Third Circuit in Stephens v. Clash, 796
F.3d 281, 288 (3d Cir. 2015):
A statute of limitations defense is an affirmative defense that a
defendant must usually plead in his answer. Schmidt v. Skolas, 770
F.3d 241, 249 (3d Cir. 2014). Nevertheless, “we permit a limitations
defense to be raised by a motion under Rule 12(b)(6) only if the time
alleged in the statement of a claim shows that the cause of action has
not been brought within the statute of limitations.” Id. (quoting
Robinson v. Johnson, 313 F.3d 128, 134–35 (3d Cir. 2002)) (internal
quotation marks omitted).”
Page 6 of 10
I could find no authority, nor has any party directed me to any, that gives standing
to a current defendant to object to the addition of a new defendant solely on the
basis of a statute of limitations defense for the proposed new defendant.
It is hornbook law that the statute of limitations is a waivable but absolute
defense.5 It may be that Mr. Vardan Vardanyan (or anyone else), if added and
served, could chose to forego raising the statute of limitations if for no other reason
than to avoid litigating the facts raised by the competing briefs on this issue. See
Fed.R.Civ.P. 8. On the other hand, any added defendant may choose to lead with
that defense.
B.
PLAINTIFFS’ PROPOSED
REJECTED AS FILED
AMENDED
COMPLAINT
IS
I recognize that all parties will have to plead anew to a second amended
complaint, requiring new answers and cross-claims. Given the confusing state of
the current pleadings this may be a good thing. As a matter of law:
An amended complaint takes the place of the original complaint,
effectively invalidating the original complaint. Crysen/Montenay
Energy Co. v. Shell Oil Co. (In re Crysen/Montenay Energy Co.), 226
F.3d 160, 162 (2d Cir. 2000) (“[A]n amended pleading ordinarily
supersedes the original and renders it of no legal effect”); see 6
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL
5
It is a frequently stated proposition of virtually universal acceptance by the federal courts that a
failure to plead an affirmative defense as required by Federal Rule 8(c) results in the waiver of
that defense and its exclusion from the case. See Arthur R. Miller & Mary Kay Kane, FEDERAL
PRACTICE & PROCEDURE § 1278 (3d ed. Rev. 2017).
Page 7 of 10
PRACTICE & PROCEDURE § 1476 (2d ed. 1990) (“A pleading that has
been amended ... supersedes the pleading it modifies.... Once an
amended pleading is interposed, the original pleading no longer
performs any function in the case....”). Therefore, since the complaint
in this case had been amended, Smith's original complaint was now a
nullity with no legal effect.
Smith v. Price, Civ. No. 3:11-CV-1581, 2012 WL 1068159 (M.D.Pa. Mar. 5,
2012), report and recommendation adopted by 2012 WL 1072282 (M.D.Pa. Mar.
29, 2012).
The Proposed Amended Complaint in this case (Doc.13-1) identifies each
Defendant by name and then uses the boilerplate language: “…with an address as
captioned above.” This language was appropriate in the original state court
complaint where the parties’ addresses are set forth in the caption of the complaint.
It is not appropriate in a federal pleading, and giving Plaintiffs’ counsel the benefit
of the doubt, this language was probably simply a cut-and-paste from the Original
State Court Complaint (Doc. 1). I also note that, from all the pleadings to date it
appears that the complaint was properly removed based upon diversity of
citizenship. If the Second Amended Complaint does not adequately describe the
residence of the parties as diverse, a motion challenging this court’s jurisdiction
would be in order, thereby further delaying these proceedings and conflicting with
the spirit of Fed.R.Civ.P. 1.
For these reasons, Plaintiffs’ Motion to Amend their Complaint (Doc. 13) is
granted, but the Proposed Amended Complaint is rejected as filed. Plaintiffs are
Page 8 of 10
granted leave of court to file a Second Amended Complaint within ten (10) days of
this order if they still want to amend their Original Complaint. In keeping with the
spirit of Rule 1, if Plaintiffs’ only intention is to add additional defendants, a
separate motion for leave to file an amended complaint will not be required.
However, if Plaintiffs seek to plead additional or different facts, or add any
additional claim against any existing Defendant, they must do so either with the
consent of the parties or by seeking leave of court.
Should Plaintiffs choose to file an amended complaint they must do so
within ten (10) days of this order. I remind counsel that any amended complaint
shall be complete in all respects. It shall contain all claims against all of the
defendants. It shall be a new pleading which stands by itself as an adequate
complaint without reference to the original complaint. It shall not incorporate by
reference the Original Complaint. I also encourage Plaintiffs to identify each
defendant in a separate paragraph, setting forth each defendant’s name, address,
and role in this case. An amended complaint filed pursuant to this Opinion and
Order shall be titled as the “Second Amended Complaint” and contain the docket
number of this case.
Page 9 of 10
III.
ORDER
For the reasons set forth in this Opinion, Plaintiffs’ Motion to Amend their
Complaint (Doc. 13) is GRANTED in part, and DENIED in part as follows:
(1)
Plaintiffs’ Proposed Amended Complaint (Doc. 13-1) is REJECTED;
(2)
Plaintiffs’ Request for Leave to Amend their Complaint is
GRANTED. If Plaintiffs choose to amend their complaint, they shall
file a second amended complaint within ten (10) days of the date of
this order subject to the conditions outlined in this order. Counsel is
also reminded that LR 15.1(a) regarding service of an amended
pleading requires that service be completed within thirty (30) days of
the filing of the amended complaint and L.R. 4.1 regarding proof of
service requires filing of that proof within fourteen (14) days.
(3)
If Plaintiffs do not file a second amended complaint within ten (10)
days, this case will proceed on the original complaint (Doc. 1-1, pp. 410).
Date: September 6, 2017
SO ORDERED
s/William I. Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
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