BAKALI v. JONES et al

Filing 45

MEMORANDUM OPINION & ORDER denying 37 Motion for Leave to File Third-Party Complaint Pursuant to F.R.C.P. 14 filed by EAGLE EXPRESS LINES, INC, GLENN A. JONES. Signed by Magistrate Judge Robert C. Mitchell on 6/20/2018. (spc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ABDUR RAUF BAKALI, as administratrix of
of the estate of OSMAN M. BAKALI,
Plaintiff,
vs.
GLENN A. JONES, et al.,
Defendants.

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Civil Action No. 17-1162

MEMORANDUM OPINION AND ORDER
Plaintiff, Abdur Rauf Bakali, as administrator of the estate of Osman M. Bakali,
deceased,1 brings this negligence action against Defendants, Glenn Jones and Eagle Express
Lines, Inc. (“Eagle Express”), arising out of a July 16, 2016 automobile accident in which Osman
Bakali (“Bakali”) was killed. The case was originally filed in the Superior Court of New Jersey,
then removed to the United States District Court for the District of New Jersey on the basis of
diversity of citizenship and finally transferred to this Court because the accident occurred in
Washington County, Pennsylvania. The action was filed in this Court on September 5, 2017.
Presently pending before the Court is a motion, filed by Defendants, for leave to file a
Third Party Complaint, which is attached to the motion as Exhibit A (ECF No. 37). The
proposed Third Party Complaint would name three Third-Party Defendants and assert claims
against them for negligence and negligent entrustment. Plaintiff has filed a brief in opposition to
the motion. For the reasons that follow, the motion for leave to file a Third Party Complaint will
be denied.

The Complaint refers to Plaintiff (father of the decedent) as the “Administrator” of the estate
and refers to “his” attorneys, but for some reason the caption utilizes the female term
“Administratrix.”
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Facts
According to the police report which is attached to the Notice of Removal, on July 16,
2016, Bakali was driving a car westbound on Interstate 70 with two passengers in the car,
Shamaas Nyazee and Daoud Ahmed Kahn. Bakali pulled the car onto the shoulder with the rear
left tire still in the travel lane and got out to examine the front of the car because he believed he
had hit something. As he returned to re-enter the vehicle, he and the car were struck by a truck
owned by Eagle Express and driven by Glenn Jones (“Jones”). Bakali was thrown from the
impact and landed face down on the shoulder, and he subsequently died from his injuries.
(Notice of Removal Ex. B.)2
Procedural History
This action was commenced on or about March 13, 2017 in the Superior Court of New
Jersey. Count I alleges a claim of negligence against both Defendants. Count II alleges a claim
of vicarious liability against Eagle Express. Count III alleges a claim of negligent hiring against
Eagle Express. Count IV indicates that, to the extent any other party is responsible for the
transport of goods or employment of the truck driver involved in the accident, Plaintiff will seek
to hold such parties liable.
On April 7, 2017, Eagle Express removed the case to the United States District Court for
the District of New Jersey on the basis of diversity of citizenship in that: Plaintiff was named
administrator of the estate by the probate court of Butler County, Ohio and the decedent was at

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ECF No. 1.

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the time of the accident a citizen of the State of Ohio; Eagle Express is an Illinois corporation
with a principal place of business in South Holland, Illinois; Jones is a citizen of the State of
New Jersey;3 and the amount in controversy, based on the death of the decedent, exceeded the
sum of $75,000, exclusive of interest and costs. (Notice of Removal ¶¶ 5-8, 13-15.)
On April 7, 2017, Defendants filed a motion (ECF No. 3) to transfer the case to this
district on the ground that the accident occurred in Washington County, Pennsylvania,4 was
investigated by Pennsylvania State Troopers and most of the other witnesses (EMTs, towing
company, coroner, witnesses to the accident) are all located here. Plaintiff did not file an
opposition to the motion. On September 5, 2017, Judge Shipp filed a Memorandum Order
granting the motion and transferring the case to this Court (ECF No. 4).
On June 4, 2018, Defendants filed a motion for leave to file a Third Party Complaint
(ECF No. 37) and they attached the proposed Third Party Complaint to their motion (ECF No. 37
Ex. A.) The proposed Third Party Complaint indicates that Bakali, Nyazee and Kahn were
traveling back from New York, where they had attended a wedding, in a rental car that was
rented by Zarqa Nyazee (the mother of Shamaas Nyazee), that the three men were in a “Joint
Venture” for this purpose, that they decided to travel back from the wedding without taking
adequate time to sleep, and that Zarqa Nyazee was the only individual permitted to drive the

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The Notice of Removal indicated that, although Jones was a New Jersey resident, service on
him had not been perfected and therefore he had not yet been “joined and served” and the case
could properly be removed by Eagle Express, although Jones consented to its removal. (ECF No.
1 ¶¶ 8-11.)
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The Complaint erroneous stated that the accident occurred in “Fallowfield Township,

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rental car. In Count I, Defendants seek to hold Shamaas Nyazee liable for his negligence in the
“Joint Venture” and in Count II, they seek to hold Daoud Kahn liable for his negligence. Count
III seeks to hold Zarqa Nyazee liable under a theory of “negligent entrustment.” On June 18,
2018, Plaintiff filed a brief in opposition (ECF No. 44).
Standard for Third-Party Joinder
Rule 14 of the Federal Rules of Civil Procedure provides that:
A defending party may, as third-party plaintiff, serve a summons and
complaint on a nonparty who is or may be liable to it for all or part of the claim
against it. But the third-party plaintiff must, by motion, obtain the court’s leave if
it files the third-party complaint more than 14 days after serving the original
answer.
Fed. R. Civ. P. 14(a)(1).
Defendants cite Scobie v. Waco Equipment Co., 2008 WL 1943551, at *1 (W.D. Pa. May
1, 2008), for the following list of factors courts consider when deciding whether to allow a thirdparty complaint to be filed:
(1) the timeliness of the motion; (2) whether the filing of the third-party complaint
will introduce an unrelated controversy or will unduly complicate the case to the
prejudice of the plaintiff; (3) whether the third-party complaint will avoid circuity
of action and settle related matters in one law suit; and (4) whether the evidence,
witnesses, and legal issues will be substantially the same in the defendant’s thirdparty action and plaintiff’s action.
Defendants contend that: 1) their motion is timely because they only recently learned that
Zarqa Nyazee was the person who rented the car and was the only authorized driver; 2) no
substantial unrelated controversy is introduced by joining these three defendants; 3) the evidence,

Washington County, New Jersey.” (Compl. ¶ 7.)
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witnesses and legal issues will be substantially similar; and 4) the claims are not obviously
unmeritorious.
Plaintiff argues that: 1) there was no business purpose for the trip and therefore no “joint
venture” was formed; 2) negligent entrustment requires proof of knowledge of incompetency and
not being a permitted driver is not incompetency, and breach of duty requires actual causation but
here no one (including the decedent) was actually operating the vehicle at the time of the
accident; 3) this motion—filed 15 months after the complaint was filed and 8 months after the
answer—is untimely, and Defendants do not indicate when they learned of the information that
would support the Third Party Complaint; 4) the right to indemnification does not arise until
payment is made; and 5) the Third Party Complaint would introduce non-diverse parties and
distinct issues about what occurred in the days prior to the accident and thus presents an entirely
separate case.5
Joint Ventures
The Pennsylvania Supreme Court has noted that:
It is only when the driver is the servant or agent of the passenger at the time of the
negligent act and that act is committed within the scope of the servant’s or agent’s
employment, or when the driver and the passenger are business partners and the
operation of the vehicle is in furtherance of the partnership business, that the
negligence of the driver will from the mere relationship of the parties be
imputable to the passenger. In all other cases, the test is ... [whether] the passenger
ha[d] a right to share in the control of the vehicle[.] Responsibility is
commensurate with authority.... Negligence in the conduct of another will not be
imputed to a party if he neither authorized such conduct, nor participated therein,
nor had the right or power to control it.
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The Court need not address all of these arguments.

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Rodgers v. Saxton, 158 A. 166, 169 (Pa. 1931). “This court has also noted that, to establish a
joint enterprise, it is not sufficient to prove that parties were merely riding together or that one
had accepted a ride for pleasure or that there existed some common purpose between the driver
and passenger to be served in the use of the vehicle.” Welc v. Porter, 675 A.2d 334, 340 (Pa.
Super. 1996).
According to the proposed Third Party Complaint (as well as the interviews contained in
the police report), the incident occurred while three individuals were riding together in a car
returning from a wedding. There is no basis for concluding that they were involved in a business
enterprise or that one employed the others. Thus, there was no joint venture. Therefore, both
Count I and Count II of the proposed Third Party Complaint state claims that are “obviously
unmeritorious.” Nova Prods, Inc. v. Kisma Video, Inc., 220 F.R.D. 238, 240 (S.D.N.Y. 2004).
Negligent Entrustment
Pennsylvania has adopted the Restatement (Second) of Torts § 308, which provides that:
“[i]t is negligence to permit a third person to use a thing or engage in an activity which is under
the control of the actor, if the actor knows or should know that such person intends or is likely to
use the thing to conduct himself in the activity in such a manner as to create an unreasonable risk
of harm to others.” See Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. 1998). A party seeking to
invoke such a claim must demonstrate that the lender had knowledge of the incompetency of the
person to whom the vehicle was entrusted at the time the vehicle was entrusted. Wertz v.
Kephart, 542 A.2d 1019, 1023-24 (Pa. Super. 1988). In addition, like any other negligence

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claim, Pennsylvania requires allegations and eventually proof of four elements: “(1) a duty or
obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the
conduct and the resulting injury; and (4) actual damages.” Grossman v. Barke, 868 A.2d 561, 566
(Pa. Super. 2005).
Plaintiff argues that there is no alleged basis for Zarqa Nyazee to have been aware that
her son or the other two individuals would use the car in a negligent manner at the time she
entrusted the car to her son to use it. Moreover, Shamaas Nyazee has stated that the car was
given to him several days before the incident, at which time he did not know that Bakali and
Kahn, who did not travel to the wedding with him, would request to ride home with him on the
morning of July 16, 2016; and that his mother did not learn that the three men had traveled
together until after the incident. (Nyazee Aff. ¶¶ 6-8, 10.)6 Thus, the three men did not drive to
the wedding together, Zarqa Nyazee did not allow the car to be driven to and from the wedding
within 48 hours such that the individuals would not have adequate time to sleep (her son arrived
at the wedding site three days earlier), the three men did not decide to travel back together until
after the wedding and Zarqa did not learn of this decision until after the incident occurred.
Moreover, as Plaintiff observes, even if Zarqa Nyazee had been aware of the travel plans, the fact
that there were three drivers means that they could have taken turns sleeping and driving and thus
the entrustment of the vehicle to three individuals for the length and time of travel would not
have been unreasonable. Furthermore, the fact that the three individuals were not named as

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ECF No. 44 Ex. 8.

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permitted drivers under the rental agreement does not indicate that they were incompetent as
drivers.
Finally, as Plaintiff notes, even assuming that some duty was breached in this case, no
one (including Bakali) was actually operating the vehicle at the time of the accident. Therefore,
there is no allegation that would support a causal connection between Zarqa Nyazee’s alleged
negligent entrustment of the vehicle and the injury that occurred when Bakali was struck and
killed. Therefore, Count III of the proposed Third Party Complaint states a claim that is
“obviously unmeritorious.”
AND NOW, this 20th day of June, 2018,
IT IS HEREBY ORDERED that Defendants’ Motion for Leave to File Third
Party Complaint Pursuant to F.R.C.P. 14 (ECF No. 37) is denied.

s/Robert C. Mitchell__________
ROBERT C. MITCHELL
United States Magistrate Judge

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