Yearta v. Amusements of America, Inc., et al.

Filing 120

ORDER denying 101 Motion for Summary Judgment; denying 102 Motion to Dismiss; granting in part and denying in part 113 Motion to Substitute Party. Signed by Judge Samuel H. Mays, Jr on 1/6/2020. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
EDWARD ALAN YEARTA,
Plaintiff,
v.
AMUSEMENTS OF AMERICA, INC.;
DELTA FAIR, INC.; UNIVERSAL
FAIRS, LLC; and BELLE CITY
AMUSEMENTS, INC.,
Defendants.

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No. 2:17-cv-02117-SHM-jay

ORDER

Before the Court are three motions.

The first is Cross-

Defendant Belle City Amusements, Inc.’s (“Belle City”) January
4, 2019 Motion for Summary Judgment.

(ECF No. 101.)

Amusements

of America, Inc. (“AOA”) and Delta Fair, Inc. have brought
crossclaims against Belle City for indemnity and defense.

Belle

City seeks summary judgment on those crossclaims on the ground
that Belle City’s contract with AOA does not obligate it to
indemnify or defend AOA and Delta Fair for their losses in this
litigation.

AOA and Delta Fair responded on February 1, 2019.

(ECF No. 103.)
No. 104.)

Belle City replied on February 15, 2019.

(ECF

The second motion is AOA and Delta Fair’s January 18, 2019
Motion to Dismiss.
voluntary

dismissal

against Belle City.
(ECF No. 105.)

(ECF No. 102.)
without

AOA and Delta Fair seek the

prejudice

of

their

crossclaims

Belle City responded on February 15, 2019.

AOA and Delta Fair replied on February 28, 2019.

(ECF No. 108.)
The third motion is AOA and Delta Fair’s April 17, 2019
Motion to Substitute Liberty Corporate Capital, Ltd.
113.)

(ECF No.

AOA and Delta Fair seek to substitute their insurer,

Liberty Corporate Capital, Ltd. (“Liberty”), in their place.
They ask that, if the Court substitutes Liberty, it also grant
Liberty leave to amend the crossclaims against Belle City and
add new claims against ACE American Insurance Company (“ACE”),
Belle City’s insurer, which is not currently a party to this
suit.

Belle City responded on May 1, 2019.

and Delta Fair replied on May 15, 2019.

(ECF No. 115.)

AOA

(ECF No. 118.)

For the following reasons, Belle City’s Motion for Summary
Judgment is DENIED.
DENIED.

AOA and Delta Fair’s Motion to Dismiss is

AOA and Delta Fair’s Motion to Substitute is GRANTED IN

PART and DENIED IN PART.
I.

Background
This suit began as a tort case but has become an indemnity

dispute.

It arises from the electrocution of Edward Alan Yearta

at the Delta Fair & Music Festival (the “Fair”) in Memphis,
2

Tennessee on August 30, 2016.

(ECF No. 103-1 ¶ 2.)

The Fair

was a large event that included several promoters, contractors,
and vendors.

Three of those companies are currently parties to

this lawsuit: (1) Delta Fair, the entity that hosted the Fair;
(2) AOA, a provider and operator of amusement park rides that
contracted with Delta Fair to provide rides for the Fair; and
(3) Belle City, a provider and operator of amusement park rides
that subcontracted with AOA to provide certain rides for the
Fair.

(Id. ¶¶ 9, 14, 20.)

On August 30, 2016, Yearta was setting up a ride at the
Fair, the Alpine Bob.

(Id. ¶¶ 2-3.)

Yearta was an employee of

Prime Time Amusements, a non-party contractor at the Fair.
¶ 3.)

(Id.

At the same time Yearta was setting up the Alpine Bob,

AOA employees were setting up an AOA-owned ride, the Ring of
Fire.

(Id. ¶ 4.)

The Alpine Bob and the Ring of Fire were both

plugged into a generator owned by Belle City.

(Id. ¶¶ 3-4.)

As

AOA employees were constructing the Ring of Fire, the ride
collided with an overhead power line.

(Id. ¶ 5.)

Electricity

from the power line flowed through the Ring of Fire, through
Belle City’s generator, through the Alpine Bob, and into Yearta.
(Id.)

Yearta was injured.

(Id. ¶ 2.)

Yearta filed a Complaint on February 21, 2017, which he
amended on June 2, 2017.
AOA,

Delta

Fair,

(ECF Nos. 1, 25.)

Belle

City,
3

and

Yearta alleged that

Universal

Fairs,

LLC

(collectively,

the

“Defendants”)

negligently

caused

his

injuries.

(ECF No. 25 ¶¶ 46-59.)

At an October 24, 2018

mediation,

Yearta

his

Defendants.

agreed

to

settle

(ECF No. 103-1 ¶ 26.)

claims

against

the

A settlement agreement

releasing Yearta’s claims was executed on December 6, 2018. (ECF
No. 104-1 ¶ 29.)

The settlement agreement gave Yearta the right

to purchase an annuity funded by the settlement proceeds.
¶ 35.)
(Id.)

(Id.

That annuity was funded on or around December 27, 2018.
Liberty, AOA and Delta Fair’s insurer, paid the entire

$2,075,000 settlement amount.

(Id. ¶ 33.)

Yearta’s claims on April 3, 2019.
The

only

claims

remaining

crossclaims against Belle City.

The Court dismissed

(ECF No. 112.)
are

AOA

and

Delta

Fair’s

AOA filed its crossclaim on

June 16, 2017 and filed an amended crossclaim on July 14, 2017.
(ECF Nos. 31, 42.)
4, 2018.

Delta Fair filed its crossclaim on September

(ECF No. 96.)

AOA and Delta Fair seek indemnity and

defense from Belle City for their losses in this litigation
pursuant to a July 24, 2016 Independent Attraction Contract
(“IAC”) between AOA and Belle City that set out the terms of
Belle City’s subcontracting engagement with AOA.
2.)

AOA drafted the IAC.

(ECF No. 42-

(ECF No. 103-1 ¶ 19.)

4

The IAC

obligated Belle City to provide eight rides at the Fair.1
No. 42-2 ¶ 3.)

(ECF

The IAC’s indemnity clause states:

SUBCONTRACTOR [Belle City] further agrees to indemnify
and defend AMUSEMENTS OF AMERICA, VIVONA FAMILY
ENTERTAINMENT,
DELTA
FAIR
INC.,
AGRICENTER
INTERNATIONAL, SHELBY COUNTY GOVERNMENT and its
officers, employees, agents and other subcontractors
for, and to hold AMUSEMENTS OF AMERICA, VIVONA FAMILY
ENTERTAINMENT,
DELTA
FAIR
INC.,
AGRICENTER
INTERNATIONAL, SHELBY COUNTY GOVERNMENT and its
officers, employees, agents and other subcontractors
harmless against, any and all injuries, claims, losses
or liabilities which result from any acts or omissions
of SUBCONTRACTOR or of any [of] SUBCONTRACTOR’S
employees, agents or subcontractors in connection with
the engagements hereunder or which may otherwise arise
in connection with the SUBCONTRACTOR’S engagement
hereunder.
(Id. ¶ 17.)

The IAC’s choice-of-law clause states that the

“agreement shall be deemed made in the State of New Jersey and
shall be construed in accordance with the laws of New Jersey.”
(Id. ¶ 21.)
II.

Jurisdiction and Choice of Law
The Court has found that it has diversity jurisdiction over

this action.

(ECF No. 112 at 4-5.)

Following the Court’s April

3, 2019 dismissal of Yearta, the Court retains supplemental
jurisdiction over the indemnity crossclaims pursuant to 28 U.S.C.
§ 1367.

See 6 Charles A. Wright et al., Federal Practice and

1

The rides the IAC obligated Belle City to provide were the
Moonraker, Drop Zone, Tornado, Crazy Plane, Berry Go Round, Free
Fall, Mini Enterprise, and Peter & Paul. (ECF No. 42-2 ¶ 3.) None
of those rides was involved in Yearta’s accident.
5

Procedure § 1433 (3d ed. 2019) (noting that “crossclaims under
Rule 13(g) fall within the ancillary jurisdiction of the court”
as codified in 28 U.S.C. § 1367 “and need not present independent
grounds of federal jurisdiction”); see also Progressive Cas.
Ins. Co. v. Belmont Bancorp, 199 F.R.D. 219, 223 (S.D. Ohio 2001)
(“If a cross-claim is brought under the ‘same core of facts’ as
the original complaint, a court needs no further basis for
jurisdiction.”) (quoting Lasa Per L’Industria Del Marmo Societa
v. Alexander, 414 F.2d 143, 146 (6th Cir. 1969)); Coleman v.
Casey Cty. Bd. of Educ., 686 F.2d 428, 430 (6th Cir. 1982)
(“[T]he federal court may adjudicate a cross-claim because of
its

relationship

to

the

main

action

for

which

federal

jurisdiction is proper.”).
State substantive law applies to state law claims in federal
court.

See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-80 (1938).

When there is no dispute that a certain state’s substantive law
applies, the court need not conduct a choice-of-law analysis sua
sponte.

See GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080,

1085 (6th Cir. 1998).

The parties agree in their respective

memoranda that New Jersey substantive law governs AOA and Delta
Fair’s crossclaims under the IAC, which contains a choice-of-law
clause selecting New Jersey law.
103 at 12.)

(ECF No. 101-1 at 7; ECF No.

The Court applies New Jersey law to AOA and Delta

Fair’s crossclaims.
6

III. Standard for Summary Judgment
Under Federal Rule of Civil Procedure 56, a court must grant
a party’s motion for summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

The moving party must show that the nonmoving

party, having had sufficient opportunity for discovery, lacks
evidence to support an essential element of its case.

See Fed.

R. Civ. P. 56(c)(1); Peeples v. City of Detroit, 891 F.3d 622,
630 (6th Cir. 2018).
When confronted with a properly supported motion for summary
judgment, the nonmoving party must set forth specific facts
showing that there is a genuine dispute for trial.
Civ. P. 56(c).

See Fed. R.

“A genuine dispute exists when the plaintiff

presents significant probative evidence on which a reasonable
jury could return a verdict for her.”

EEOC v. Ford Motor Co.,

782 F.3d 753, 760 (6th Cir. 2015) (en banc) (internal quotation
marks and citation omitted).

The nonmoving party must do more

than simply “‘show that there is some metaphysical doubt as to
the material facts.’”

Lossia v. Flagstar Bancorp, Inc., 895

F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
When considering whether to grant summary judgment, the
court should “consider the evidence in the light most favorable
7

to the non-moving party and draw all reasonable inferences in
that party’s favor.”
(6th

Cir.

2016).

McKay v. Federspiel, 823 F.3d 862, 866
“Summary

judgment

is

appropriate

where

reasonable minds could not disagree as to the conclusion to be
drawn from the evidence.”

FDIC v. Jeff Miller Stables, 573 F.3d

289, 299 (6th Cir. 2009).

Although summary judgment must be

used carefully, it “is an integral part of the Federal Rules as
a whole, which are designed to secure the just, speedy, and
inexpensive

determination

of

every

disfavored procedural shortcut.”

action[,]

rather

than

a

Id. at 294 (quotation marks

and citations omitted).
IV.

Analysis
A.

AOA and Delta Fair’s Motion to Substitute

AOA and Delta Fair move to substitute their insurer Liberty
in their place in this litigation.

(ECF No. 113.)

As an

alternative request for relief, Liberty moves to intervene under
Rule 24 of the Federal Rules of Civil Procedure.

(Id.)

AOA and

Delta Fair also request that, if the Court grants their motion
to substitute Liberty, it also grant Liberty leave to amend the
crossclaims against Belle City and add new claims against ACE.
(Id.)

Belle City does not oppose AOA and Delta Fair’s request

to substitute Liberty.

(ECF No. 115 at 1.)

Belle City does

oppose AOA and Delta Fair’s request that the Court grant Liberty
leave to amend.

(Id.)
8

1.

Substitution of Liberty for AOA and Delta Fair

Federal Rule of Civil Procedure 25(c) provides for the
substitution of parties when a transfer of interest has occurred
after a suit is filed.

See 7C Charles Alan Wright et al.,

Federal Practice and Procedure § 1958 (3d ed. 2019).

Rule 25(c)

states:
If an interest is transferred, the action may be
continued by or against the original party unless the
court, on motion, orders the transferee to be
substituted in the action or joined with the original
party. The motion must be served as provided in Rule
25(a)(3).
Fed. R. Civ. P. 25(c).

Rule 25 “is merely a procedural device

designed to facilitate the conduct of a case, and does not affect
the substantive rights of the parties or the transferee.”

Iron

Workers Local No. 25 Pension Fund v. Watson Wyatt & Co., No. 04cv-40243, 2008 WL 1924884, at *1 (E.D. Mich. Apr. 30, 2008)
(citing 6 James Wm. Moore et al., Moore’s Federal Practice
§ 25.32 (3d ed. 2010)).

It “does not require that parties be

substituted or joined after an interest has been transferred.”
The Charter Oak Fire Ins. Co. v. SSR, Inc., No. 11-cv-0118, 2015
WL 10890126, at *4 (E.D. Ky. July 13, 2015).

“An order of

joinder is merely a discretionary determination by the trial
court that the transferee’s presence would facilitate the conduct
of the litigation.”

7C Wright et al., supra, § 1958.

9

In a diversity case, the substantive law of the forum state
determines the real party in interest.

See Certain Interested

Underwriters at Lloyd’s v. Layne, 26 F.3d 39, 42-43 (6th Cir.
1994) (“[T]he real party in interest is the person who is
entitled

to

enforce

the

right

asserted

under

governing

substantive law. . . . Of course, the governing substantive law
in diversity actions is state law.”) (citations omitted).

In

Tennessee, “upon payment of a loss, an insurance carrier becomes
the real party in interest with respect to its subrogation
claim.”

Solectron USA, Inc. ex rel. Fidelity & Deposit Co. of

Md. v. FedEx Ground Package Sys., Inc., 520 F. Supp. 2d 904, 911
(W.D. Tenn. 2007) (quoting Kentucky Nat’l Ins. Co. v. Gardner,
6 S.W.3d 493, 499 (Tenn. Ct. App. 1999)).

“Immediately upon the

payment of [a claim],” insurance companies are “subrogated to
the rights of their insureds,” and are “the real plaintiffs in
interest.”

Id. (quoting Nat’l Cordova Corp. v. City of Memphis,

380 S.W.2d 793, 796-97 (Tenn. 1964)).
Liberty paid the entire settlement between Yearta and the
Defendants.

(ECF No. 104-1 ¶ 33.)

It is now the real party in

interest as to AOA and Delta Fair’s indemnity crossclaims against
Belle City.2

The Court grants AOA and Delta Fair’s request to

2

AOA and Delta Fair have met the service requirement of Rule 25,
which requires service “on nonparties as provided in Rule 4.” Fed.
R. Civ. P. 25(a)(3). AOA and Delta Fair’s counsel also represents
Liberty in this litigation, and counsel submits that “Liberty agrees
to waive service of this motion and allow its counsel to accept
10

substitute Liberty and directs the Court Clerk to alter the case
caption accordingly.
Because the Court grants AOA and Delta Fair’s motion to
substitute Liberty, it need not consider Liberty’s alternative
request to intervene under Rule 24.
17.)

(See ECF No. 113-1 at 14-

Substitution is the appropriate remedy here.

See Ray

Capital, Inc. v. M/V Newlead Castellano, No. 16-cv-0093, 2017 WL
4079082, at *5 (S.D. Ga. Sept. 13, 2017) (noting that a “motion
to intervene [] based on a transfer of one or more of the
Defendants’ interests” is “more properly considered a motion to
substitute pursuant to Rule 25(c)”).

The Motion to Substitute

is GRANTED as to the substitution of Liberty.
2.

Leave to Amend

In their Motion to Substitute, AOA and Delta Fair ask the
Court to grant Liberty leave to amend the crossclaims against
Belle City and add new claims against ACE, Belle City’s insurer,
which is not currently a party to this suit.

(ECF No. 113.)

AOA and Delta Fair attach a proposed Amended Complaint that sets
out several proposed new claims against Belle City and ACE.

(ECF

No. 113-5 ¶¶ 97-144.)

service of this motion.” (ECF No. 113-1 at 10 n.2.) That is
sufficient. See Gottfried v. Frankel, 818 F.2d 485, 493 (6th Cir.
1987) (“Rule 4 is a flexible rule which principally requires
sufficient notice to the party of claims brought against it.”).
11

a.

New Claims Against Belle City

Where, as here, a party moves for leave to amend after the
deadline for amending the pleadings in the scheduling order has
passed, a court must consider whether the plaintiff has shown
good cause for leave to amend under Rule 16(b) of the Federal
Rules of Civil Procedure.3

Leary v. Daeschner, 349 F.3d 888,

909 (6th Cir. 2003); see also Fed. R. Civ. P. 16(b)(4) (“A
schedule may be modified only for good cause and with the judge’s
consent.”).

When determining whether a plaintiff has shown good

cause for leave to amend under Rule 16(b), courts consider, inter
alia,

“possible

modification.”

prejudice

to

the

party

opposing

the

Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th

Cir. 2002) (citations omitted); see also Leary, 349 F.3d at 909
(“[T]he district court [] is required to evaluate prejudice to
the opponent before modifying the scheduling order.”).
If a party shows good cause for leave to amend under Rule
16(b), the Court must also consider whether leave to amend is
warranted under Rule 15(a)(2).

Leary, 349 F.3d at 909.

Under

Rule 15(a)(2), “[t]he court should freely give leave [to amend]
when justice so requires.”

Fed. R. Civ. P. 15(a)(2).

“Although

Federal Rule of Civil Procedure 15(a)(2) provides that a court
‘should freely give leave [to amend a complaint] when justice so

3

The deadline for motions to amend pleadings in this case was June
15, 2018. (ECF No. 66.)
12

requires,’ the right to amend is not absolute or automatic.”
Islamic Ctr. of Nashville v. Tennessee, 872 F.3d 377, 386 (6th
Cir. 2017) (quoting Tucker v. Middleburg-Legacy Place, 539 F.3d
545, 551 (6th Cir. 2008)).

The district court has discretion

about whether to grant leave.
exercise

that

discretion,

Id.

courts

In deciding whether to

may

consider

a

number

of

factors, such as undue delay, bad faith, undue prejudice, or
futility of amendment.

Foman v. Davis, 371 U.S. 178, 182 (1962).

“[S]ubstantial prejudice to the opposing party” is a “critical
factor[] in determining whether an amendment should be granted.”
Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir. 1989)
(citation omitted).
The proposed Amended Complaint states two proposed new
claims

against

Belle

City:

(1)

a

breach-of-contract

claim

alleging that Belle City failed to obtain $2 million in primary
liability coverage as required under the IAC; and (2) a negligent
misrepresentation claim alleging that Belle City falsely told
AOA and Delta Fair during discovery that Belle City had only one
insurance policy when in fact it had two.

(ECF No. 113-5 ¶¶ 106-

14, 133-38.)
Allowing Liberty to add these claims would substantially
prejudice Belle City at this late stage.

Discovery is over, the

dispositive motion deadline has passed, and Belle City has moved

13

for summary judgment. 4

Each of

these

factors

is a strong

indicator that allowing Liberty to turn back the clock on the
timeline of this litigation would be prejudicial.

See Commerce

Benefits Grp., Inc. v. McKesson Corp., 326 F. App’x 369, 376
(6th Cir. 2009) (affirming denial of motion for leave to amend
where the dispositive motion deadline had passed, the defendant
had filed a motion for summary judgment, and “the addition of
new [] claims would have resulted in prejudice to defendants at
such a late stage in the litigation”); Wade v. Knoxville Util.
Bd., 259 F.3d 452, 459 (6th Cir. 2001) (affirming denial of
motion for leave to amend where “significant discovery ha[d]
been completed” and “defendant ha[d] filed a motion for summary
judgment on all claims alleged in the original complaint”);
Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir.
1999) (“[A]llowing amendment after the close of discovery creates
significant prejudice.”).
The proposed new claims against Belle City rest on new
theories of liability that would significantly reshape the case
at a late stage.

For this reason also, allowing amendment would

prejudice Belle City.

See Leary, 349 F.3d at 909 (affirming

denial of motion for leave to amend given the “prejudice that

4

The discovery deadline was December 14, 2018. (ECF No. 79.) The
dispositive motion deadline was January 4, 2019. (Id.) Belle City
filed its motion for summary judgment on January 4, 2019. (ECF No.
101.)
14

[the defendant] would suffer if the Plaintiffs were permitted to
‘recast’ their claims at this late stage”); Anderson v. Young
Touchstone Co., 735 F. Supp. 2d 831, 834 (W.D. Tenn. 2010)
(“[T]he court may deem it prejudicial if the Plaintiff, in the
latter stages of litigation, presents an alternative theory of
recovery that substantially changes the theory on which the case
has been proceeding.”) (citing Troxel Mfg. Co. v. Schwinn Bicycle
Co., 489 F.2d 968, 971 (6th Cir. 1973)).
Under Rule 16(b)’s good cause standard and Rule 15(a)(2)’s
discretionary considerations, to allow the proposed new claims
against Belle City would be substantially prejudicial.

The

Motion to Substitute is DENIED to the extent it seeks to add new
claims against Belle City.
b.

New Claims Against ACE

The Sixth Circuit “has not determined whether Rule 21 or
Rule 15” of the Federal Rules of Civil Procedure “controls the
amendment of a pleading where the amendment seeks to add parties
to the action.”

Broyles v. Corr. Med. Servs., Inc., No. 08-

1638, 2009 WL 3154241, at *3 (6th Cir. Jan. 23, 2009).

Rule 21

states that, “[o]n motion or on its own, the court may at any
time, on just terms, add or drop a party.”

Fed. R. Civ. P. 21.

Courts in this Circuit have considered both Rule 21 and Rule
15(a)(2) when deciding whether to allow a party to add new claims
against a new party.

See, e.g., Kunin v. Costco Wholesale Corp.,
15

No. 10-cv-11456, 2011 WL 6090132, at *2-3 (E.D. Mich. Dec. 7,
2011).

Under those rules, “the standard” for granting leave to

amend “is the same.”

Haynes v. Martin, No. 12-cv-0210, 2014 WL

1159932, at *9 (E.D. Ky. Mar. 21, 2014) (citation omitted).

Both

rules “allow amendment of pleadings when justice so requires and
on just terms.”

Id. (quoting Kunin, 2011 WL 6090132, at *7).

When deciding whether to add a new party under Rule 21,
courts analyze whether the proposed new party can be permissively
joined under Rule 20.

See Kunin, 2011 WL 6090132, at *3; Dottore

v. Nat’l Staffing Servs., LLC, No. 06-cv-01942, 2007 WL 2114668,
at

*3-5

(N.D.

Ohio

July

20,

2007);

TicketNetwork,

Inc.

v.

Darbouze, 133 F. Supp. 3d 442, 447 (D. Conn. 2015) (“Since Rule
21 does not provide any standards by which district courts can
determine if parties are misjoined, courts have looked to Rule
20 for guidance.”) (quoting Acevedo v. Allsup's Convenience
Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010)).
Rule 20 allows permissive joinder of defendants in a single
action if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and
(B) any question of law or fact
defendants will arise in the action.
Fed. R. Civ. P. 20(a)(2).

common

to

all

“The purpose of Rule 20 is to ‘promote

trial convenience and expedite the resolution of disputes.’” SEC
16

v. Carroll, No. 11-cv-0165, 2011 WL 5880828, at *1 (W.D. Ky.
Nov. 23, 2011) (quoting Alexander v. Fulton Cty., 207 F.3d 1303,
1323 (11th Cir. 2000)); see also Third Degree Films, Inc. v.
John Does 1-72, No. 12-cv-14106, 2013 WL 1164024, at *5 (E.D.
Mich. Mar. 18, 2013) (noting that Rule 20 is “a pragmatic tool
meant to help courts and parties conduct litigation in such a
way that is efficient, practical, and fair”) (citation omitted).
The Court “has discretion to deny joinder if it determines that
the addition of the party under Rule 20 will not foster the
objectives of the rule, but will result in prejudice, expense or
delay.”

7 Charles A. Wright et al., Federal Practice and

Procedure § 1652 (3d ed. 2019).

The plaintiff has the “burden

of convincing” the “court that joinder under Rule 20(a) is
appropriate.”

Thorn v. Novartis Pharm. Corp., No. 04-cv-0586,

2005 WL 8162566, at *4 (E.D. Tenn. Aug. 30, 2005).
The proposed Amended Complaint lists three proposed new
claims against ACE, Belle City’s insurer: (1) a breach-ofcontract claim alleging that ACE failed to indemnify AOA and
Delta Fair for their losses in this litigation pursuant to Belle
City’s insurance policy with ACE; (2) a statutory bad faith claim
alleging that ACE refused AOA and Delta Fair’s demand for payment
of insurance under Belle City’s insurance policy; and (3) a
negligent misrepresentation claim alleging that ACE falsely told
AOA and Delta Fair during discovery that Belle City had only one
17

insurance policy when in fact it had two.

(ECF No. 113-5 ¶¶ 115-

39.)
The Court need not consider whether Liberty’s claims against
ACE satisfy the two factors of Rule 20’s permissive joinder test.
Even if the elements of that test were met, to allow Liberty to
bring its proposed new claims against ACE at this late stage
would not serve the purposes of the rule.
supra, § 1652.

See 7 Wright et al.,

Discovery has long since closed as to AOA and

Delta Fair’s existing crossclaims against Belle City.

Allowing

new claims against a new party would substantially delay the
resolution of the claims currently before the Court.

See Fed.

Ins. Co. v. Singing River Health Sys., 850 F.3d 187, 202 (5th
Cir. 2017) (affirming denial of request for permissive joinder
under Rule 20 where “joining all of the requested parties would
create substantial delay”).
City.

That delay would prejudice Belle

See Chavez v. Ill. State Police, 251 F.3d 612, 631-33

(7th Cir. 2001) (affirming denial of request for permissive
joinder under Rule 20 where existing claims were ready to proceed
to

trial

and

reopening

discovery

would

have

prejudiced

defendant); see also Thorn, 2005 WL 8162566, at *4 (denying
motion for permissive joinder where plaintiffs had “failed to
carry

[their]

burden”

to

show

objectives of Rule 20).

18

that

joinder

would

meet

the

To allow Liberty to add new claims against a new party would
substantially prejudice Belle City under Rule 15(a)(2) for the
reasons discussed above.

See supra, at 12-15.

Belle City has

defended against AOA and Delta Fair’s crossclaims for more than
two years.
passed.

The discovery and dispositive motion deadlines have

To reset the clock on this litigation “would deprive

the defendants of their anticipated closure.”

Duggins, 195 F.3d

at 834.
Allowing Liberty to add new claims against ACE would not
serve the purposes of permissive joinder and would substantially
prejudice

Belle

City

under

Rule

15(a)(2).

The

Motion

to

Substitute is DENIED to the extent it seeks to add new claims
against ACE.5
B.

AOA and Delta Fair’s Motion to Dismiss

AOA

and

Delta

Fair

ask

the

Court

to

dismiss

their

crossclaims against Belle City without prejudice under Rule
41(a)(2) of the Federal Rules of Civil Procedure. (ECF No. 102.)
Rule 41(a)(2) provides for voluntary dismissal of an action “at
the plaintiff’s request only by court order, on terms that the

5

In addition to the claims discussed above, the proposed Amended
Complaint sets out a “claim” against Belle City and ACE for punitive
damages. (ECF No. 113-5 ¶¶ 140-44.) Punitive damages are a remedy,
not an independent cause of action. See Carroll v. TDS Telecomm.
Corp., No. 17-cv-1127, 2017 WL 6757566, at *10 (W.D. Tenn. Dec. 29,
2017). Because the Court declines to allow Liberty to add its
proposed new claims, it also declines to allow Liberty to pursue
punitive damages as to those claims.
19

court considers proper.”

Fed. R. Civ. P. 41(a)(2).

Whether to

grant a request for voluntary dismissal under Rule 41(a)(2) is
“within the sound discretion of the district court.”

Grover by

Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994)
(citation omitted).
A court should not grant a motion for voluntary dismissal
when the defendant would suffer “plain legal prejudice as a
result.”

Bridgeport Music, Inc. v. Universal-MCA Music Publ’g,

Inc., 583 F.3d 948, 953 (6th Cir. 2009) (internal quotation marks
and citation omitted).

The Sixth Circuit has established four

factors for trial courts to consider when determining whether
voluntary dismissal would result in plain legal prejudice to a
defendant: (1) the defendant’s effort and expense of preparation
for trial; (2) excessive delay and lack of diligence by the
plaintiff

in

prosecuting

the

action;

(3)

insufficient

explanation of the need for dismissal; and (4) whether the
defendant has filed a motion for summary judgment.
F.3d at 718.

Grover, 33

A majority of those factors weigh against AOA and

Delta Fair’s motion for voluntary dismissal.
First,

Belle

City

has

incurred

expense in preparation for trial.

significant

effort

and

Belle City has defended

against AOA and Delta Fair’s crossclaims since June 2017.

(See

ECF No. 31.)

(ECF

Discovery was completed in December 2018.

No. 79.) There have been numerous pleadings, motions, subpoenas,
20

discovery requests, and depositions.
58-59, 70, 74, 93, 97.)

(See, e.g., ECF Nos. 44,

Belle City has prepared a motion for

summary judgment along with a memorandum of law, statement of
undisputed material facts, and five exhibits.

See Hart v. Bank

of Am., N.A., No. 14-cv-2807, 2015 WL 12532149, at *2 (W.D. Tenn.
Nov. 17, 2015) (denying motion for voluntary dismissal where
defendant’s submission of “149 pages of arguments, affidavits or
exhibits

in

support

of

its

Motion

for

Summary

Judgment”

demonstrated its “effort and expense in preparation for trial”).
This factor weighs against AOA and Delta Fair’s motion.
Second, AOA and Delta Fair did not delay in prosecuting
their crossclaims against Belle City.

This factor weighs in

favor of AOA and Delta Fair’s motion.
Third, AOA and Delta Fair have not sufficiently explained
the need for dismissal.

AOA and Delta Fair argue that dismissal

is justified for two reasons: (1) “they are no longer the proper
party in interest,” and (2) “the efficiency of a dismissal.”
(ECF No. 108 at 4.)

Those reasons are not persuasive.

An

“action may be continued by or against the original party” after
an interest has transferred, or the Court may substitute the
transferee, as it has in this Order.
supra, at 8-11.

Fed. R. Civ. P. 25(c); see

A dismissal at this stage would wash away the

parties’ significant efforts without resolution.

21

It would be

inefficient.

This factor weighs against AOA and Delta Fair’s

motion.
Fourth, Belle City has filed a motion for summary judgment.
(ECF No. 101.)

That motion is fully briefed and ripe for the

Court’s consideration.
Fair’s motion.

This factor weighs against AOA and Delta

See Matthews v. Tenn. Bd. of Prob. and Parole,

No. 07-cv-0046, 2008 WL 2609160, at *5 (E.D. Tenn. June 26, 2008)
(denying motion for voluntary dismissal where the defendant
“ha[d] a motion for summary judgment pending”).
Considering the Grover factors as a whole, they weigh
decisively against AOA and Delta Fair’s motion for voluntary
dismissal under Rule 41(a)(2).
C.

The Motion to Dismiss is DENIED.

Belle City’s Motion for Summary Judgment

Belle City moves for summary judgment on AOA and Delta
Fair’s crossclaims.
In

a

(ECF No. 101.)

breach-of-contract

action

premised

on

diversity

jurisdiction, a federal court applies the substantive law of the
state whose law governs the contract and will “generally enforce
the parties’ contractual choice of governing law.”

Savedoff v.

Access Grp., Inc., 524 F.3d 754, 762 (6th Cir. 2008) (citations
omitted).
IAC.

The parties agree that New Jersey law governs the

(ECF No. 101-1 at 7; ECF No. 103 at 12.)

The Court applies

New Jersey law to AOA and Delta Fair’s crossclaims.

22

AOA and Delta Fair allege that their losses were caused by
Belle City’s failure to properly ground the generator that was
connected to the Ring of Fire and Alpine Bob when Yearta was
electrocuted.

(ECF No. 42 ¶¶ 20-23; ECF No. 96 at 16-17.)

In

their crossclaims against Belle City, AOA and Delta Fair allege
that Belle City has failed to indemnify and defend them pursuant
to the terms of the IAC between AOA and Belle City.
¶¶ 25-32; ECF No. 96 at 17-18.)

(ECF No. 42

In the IAC, Belle City agreed

to indemnify and defend AOA and Delta Fair for “any and all
injuries, claims, losses or liabilities which result from any
acts or omissions of [Belle City] or of any [of Belle City’s]
employees,

agents

or

subcontractors

in

connection

with

the

engagements hereunder or which may otherwise arise in connection
with [Belle City’s] engagement hereunder.”

(ECF No. 42-2 ¶ 17.)

Belle City makes three arguments in its motion for summary
judgment: (1) AOA and Delta Fair’s losses at the Fair did not
arise “in connection with” Belle City’s engagement under the
IAC; (2) AOA and Delta Fair cannot prove their losses arose from
a negligent act or omission by Belle City; and (3) AOA and Delta
Fair are not entitled to indemnity or defense for their losses
because

the

negligence.

losses

arose

from

AOA

(ECF No. 101-1 at 7-12.)

and

Delta

Fair’s

own

Belle City contends that

each of these is an independent ground for summary judgment.
(Id.)
23

AOA and Delta Fair make two threshold arguments in their
response to Belle City’s motion for summary judgment.
unpersuasive.

Both are

First, AOA and Delta Fair argue that the Court

should deny Belle City’s motion because it seeks summary judgment
against

parties

interest.”
works.

that

are

“no

longer

(ECF No. 103 at 10-11.)

the

real

parties

in

That is not how substitution

After an interest has been transferred, an “action may

be continued by or against the original party,” and the Court
may in its discretion add or substitute the transferee.
Civ. P. 25(c).

Fed. R.

Belle City’s motion for summary judgment is

properly directed at AOA and Delta Fair.
Second, AOA and Delta Fair argue that there are disputes of
material fact about whether Belle City breached the IAC by
failing to obtain $2 million in primary liability coverage. (ECF
No. 103 at 12-13.)

That claim is not before the Court.

AOA and

Delta Fair have elsewhere requested that the Court allow Liberty
to add this claim in an amended pleading, a request the Court
has denied in a separate section of this Order.
11-15.

See supra, at

A nonmovant cannot defeat a summary judgment motion by

attempting to raise new claims in response.

Tucker v. Union of

Needletrades, Indus. and Textile Emps., 407 F.3d 784, 788 (6th
Cir. 2005) (citing 10A Charles A. Wright et al., Federal Practice
and Procedure § 2723 (3d ed. Supp. 2005)).

24

In New Jersey, “[i]ndemnity contracts are interpreted in
accordance with the rules governing the construction of contracts
generally.”

Ramos v. Browning Ferris Indus. of S. Jersey, Inc.,

510 A.2d 1152, 1159 (N.J. 1986) (citations omitted).

“The

objective in construing a contractual indemnity provision is the
same as in construing any other part of a contract -- it is to
determine the intent of the parties.”

Kieffer v. Best Buy, 14

A.3d 737, 742-43 (N.J. 2011) (citation omitted).

“However,

indemnity provisions differ from provisions in a typical contract
in

one

important

aspect.

If

the

meaning

of

an

indemnity

provision is ambiguous, the provision is ‘strictly construed
against the indemnitee.’”

Kieffer, 14 A.3d at 743 (quoting

Mantilla v. NC Mall Assocs., 770 A.2d 1144, 1151 (N.J. 2001)).
An indemnity provision is also strictly construed against the
drafter.

Id. (citing Pacifico v. Pacifico, 920 A.2d 73, 78 (N.J.

2007)).
1.

“In Connection With” Belle City’s Engagement

Belle City argues that AOA and Delta Fair’s losses from
Belle City’s allegedly negligent grounding of a generator at the
Fair did not arise “in connection with” Belle City’s engagement
under the IAC.
The

(ECF No. 101-1 at 8-10.)

“engagement”

the

IAC

contemplates

is

Belle

City’s

provision of eight amusement park rides, none of which was
involved in Yearta’s accident.

(ECF No. 42-2 ¶ 3.)
25

No term of

the IAC obligated Belle City to provide a generator at the Fair.
(See generally ECF No. 42-2; see also ECF No. 103-1 ¶ 23.)

That

the IAC did not obligate Belle City to provide a generator does
not, without more, tell us whether Belle City’s provision of a
generator arose “in connection with” its engagement under the
IAC.

The relevant clause of the IAC’s indemnity provision

indemnifies AOA and Delta Fair for “losses . . . which . . .
arise in connection with [Belle City’s] engagement hereunder.”
(ECF No. 42-2 ¶ 17.)

Belle City argues that this language is

“ambiguous,” although it does not explain what the competing
interpretations might be.

(ECF No. 104 at 7-8); see also Chubb

Custom Ins. Co. v. Prudential Ins. Co. of Am., 948 A.2d 1285,
1289 (N.J. 2008) (“If the terms of the contract are susceptible
to

at

least

two

reasonable

alternative

interpretations,

an

ambiguity exists.”) (citation omitted).
There is potential ambiguity in the phrase “in connection
with” in the IAC’s indemnity provision.
a malleable term.
Super.

Ct.

App.

“In connection with” is

See Ben Ali v. Towe, 103 A.2d 158, 160 (N.J.
Div.

1954)

(noting

that

“[t]he

words

‘in

connection with’ could imply a relationship either proximate or
remote”) (citation omitted).

One reading of the phrase “in

connection with” in the IAC might be that it contemplates only
losses directly related to Belle City’s engagement under the IAC
(e.g., losses arising from Belle City’s set-up, operation, or
26

break-down of the rides it agreed to provide and operate at the
Fair).
with”

Another reading might be that the phrase “in connection
extends

further,

contemplating

losses

bearing

only

a

tangential relationship to Belle City’s engagement (e.g., an
injury

sustained

by

an

off-duty

Belle

City

employee

while

visiting other sections of the Fair).
The

IAC

is

interpretations

not
the

clear

about

parties

which

intended.

of

these

In

competing

keeping

with

controlling New Jersey precedents, the Court strictly construes
the IAC’s indemnity provision against AOA and Delta Fair, the
indemnitees.

See Ramos, 510 A.2d at 1159.

Thus, the indemnity

provision covers only losses directly related to Belle City’s
engagement under the contract.
Even under this narrow reading, however, there is a dispute
of material fact about whether Belle City’s provision of a
generator at the Fair was “in [direct] connection with” Belle
City’s engagement to provide amusement park rides under the IAC.
In their briefs, the parties emphasize competing sets of summary
judgment evidence.

(ECF No. 101-1 at 10; ECF No. 103 at 17.)

AOA and Delta Fair offer evidence suggesting that Belle
City’s provision of a generator was closely connected to Belle
City’s engagement under the IAC. An AOA representative testified
at his deposition that AOA requires subcontractors who provide
eight or more rides to provide a generator, and that Belle City’s
27

provision of a generator was orally negotiated by Belle City and
AOA together with other terms such as the “ride lineup” and the
“monetary compensation” for Belle City’s contractual engagement.
(ECF

No.

described

103-9
the

at

45:4-46:7.)

provision

of

Another

a

generator

AOA
as

representative
an

“understood”

requirement for a subcontractor to “book rides” with AOA.

(ECF

No. 103-3 at 233:12-17, 238:7-14.)
Belle City offers evidence suggesting that its provision of
a generator was a separate arrangement, unconnected to Belle
City’s engagement under the IAC.

AOA representatives testified

that the arrangement by which Belle City agreed to provide a
generator at the Fair was a separate “oral agreement,” and that
“[t]he

written

generators.”

contract

does

not

state

anything

about

(ECF No. 101-5 at 44:8-45:16; see also ECF No.

101-6 at 233:16-19.)

AOA representatives also testified that

the purpose of Belle City’s provision of a generator at the Fair
was not “specifically” to “power [Belle City’s] own rides,” but
was “needed in the whole scope of the fair” to, inter alia,
provide power to AOA’s rides.

(ECF No. 101-5 at 46:8-17; see

also ECF No. 101-6 at 233:20-234:5.)
This evidence illustrates the live dispute in the record
about whether Belle City’s provision of a generator at the Fair
arose “in connection with” its engagement under the IAC.

There

is a substantial body of New Jersey case law in which courts
28

have interpreted similar indemnity clauses providing indemnity
for losses “arising out of” or “arising from” the contractual
engagement.

See Torres v. Tamburri Assocs., Inc., 2010 WL

4905069 (N.J. Super. Ct. App. Div. Dec. 3, 2010); Dorsey v.
Cobblestone Village Equities, LLC, 2009 WL 763409 (N.J. Super.
Ct. App. Div. Mar. 25, 2009); Di Filippi v. Target Corp., 2008
WL 141152 (N.J. Super. Ct. App. Div. Jan. 16, 2008); Leitao v.
Damon G. Douglas Co., 693 A.2d 1209 (N.J. Super. Ct. App. Div.
1997); Vitty v. D.C.P. Corp., 633 A.2d 1040 (N.J. Super. Ct.
App.

Div.

1993).

In

those

cases,

New

Jersey

courts

have

considered whether there was a “substantial nexus between the
claim and the subject matter of the subcontractor’s work duties.”
Leitao, 693 A.2d at 1212; see also Torres, 2010 WL 4905069, at
*11; Dorsey, 2009 WL 763409, at *3; Di Filippi, 2008 WL 141152,
at *4; Vitty, 633 A.2d at 1043. This is a fact-intensive inquiry.
See, e.g., Torres, 2010 WL 4905069, at *11 (finding a dispute of
material

fact

about

whether

losses

resulting

from

a

subcontractor’s work in erecting a steel platform at an apartment
complex

“arose

out

of”

the

subcontractor’s

contractual

engagement to fabricate and deliver steel).
Here, there is a dispute of material fact about whether AOA
and Delta Fair’s losses from Belle City’s allegedly negligent
grounding of a generator at the Fair arose “in connection with”
Belle City’s engagement under the IAC.
29

Reasonable minds could

answer this question differently.

Cf. Jeff Miller Stables, 573

F.3d at 299 (“Summary judgment is appropriate where reasonable
minds could not disagree as to the conclusion to be drawn from
the evidence.”).
2.

It is a question for the jury.

Belle City’s Negligence

Belle City argues that AOA and Delta Fair cannot show that
their losses arose from a negligent act or omission by Belle
City.

(ECF No. 101-1 at 7-10.)

That argument is not well-taken

for two reasons.
First,

Belle

City

contends

that

the

IAC’s

indemnity

provision covers only losses caused by the negligent acts or
omissions

of

subcontractors.
provision

that

Belle

City

or

(Id. at 9.)
covers

its

employees,

agents,

or

In New Jersey, an indemnity

losses

resulting

from

the

“acts

or

omissions” of the indemnitor provides for indemnity only if the
indemnitor was negligent.

See McCabe v. Great Pac. Century

Corp., 566 A.2d 234, 236-37 (N.J. Super. Ct. App. Div. 1989)
(finding that an “act or omission” indemnity provision required
a showing of “negligen[ce] in some manner directly related to
[the] subcontract”).

However, the IAC’s indemnity provision

covers not only losses that “result from any acts or omissions
of [Belle City] or of any [of Belle City’]s employees, agents or
subcontractors in connection with the engagements hereunder,”
but also losses that “may otherwise arise in connection with
30

[Belle

City’s]

engagement

hereunder.”

(ECF

No.

42-2

¶

17

(emphasis added).)
Belle City ignores the “otherwise arise in connection with”
language in the IAC’s indemnity provision.

Belle City does not

explain why this clause would require a showing that AOA and
Delta Fair’s losses resulted from a negligent act or omission by
Belle

City.

When

construing

similar

indemnity

provisions

covering losses “arising out of” an indemnitor’s contractual
engagement, New Jersey courts have held that no showing of
negligent action by the indemnitor is necessary.

See Leitao,

693 A.2d at 1212 (indemnity provision covering losses “arising
out of or resulting from the performance of subcontractor[]’s
work” did not “requir[e] fault on the subcontractor’s part as a
prerequisite to indemnification”); Di Filippi, 2008 WL 141152,
at *3-4 (finding that the “clear language” of an indemnity
provision covering losses that “arose out of” subcontractor’s
performance of the contract “d[id] not require a finding of
negligence on [indemnitor’s] part to trigger indemnification”).
By its terms, the “otherwise arise in connection with” clause of
the IAC’s indemnity provision operates in the same way.

It

requires a “connection” between AOA and Delta Fair’s losses and
Belle City’s contractual engagement, but does not require fault.
Second, even if the Court were to read the IAC’s indemnity
provision to cover only losses resulting from Belle City’s
31

negligence, there would be a dispute of material fact in the
record about whether AOA and Delta Fair’s losses resulted from
a negligent act or omission by Belle City.

AOA and Delta Fair

offer deposition testimony by an AOA representative that the
generator Belle City provided at the Fair “was not grounded.”
(ECF No. 103 at 15-16.)

Yearta, at his deposition, testified

that Belle City’s generator “was grounded, but I don’t know how
-- if it was grounded right.”

(ECF No. 103-7 at 423:9-10.)

In

its reply, Belle City seems to accept that “there is a factual
dispute as to whether the generator was grounded.”

(ECF No. 104

at 6.)
However, Belle City argues that, regardless of this factual
dispute, AOA and Delta Fair cannot prove Belle City’s negligence
at trial because AOA and Delta Fair have no expert witnesses to
testify about causation or the relevant standard of care, two of
the elements necessary for a showing of negligence.
101-1 at 9-10; ECF No. 104 at 6-7.)

(ECF No.

Belle City cites cases from

Tennessee, Virginia, and the District of Columbia that, in those
jurisdictions, expert testimony may be necessary in a negligence
action that concerns a specialized matter such as “electricity.”
(ECF No. 101-1 at 9; ECF No. 104 at 7 n.5.)
Both parties agree that New Jersey law governs AOA and Delta
Fair’s crossclaims.
for

malpractice

See supra, at 6.

cases,

there

is
32

no

In New Jersey, “except
general

rule

or

policy

requiring expert testimony as to the standard of care” in a
negligence action.
1147

(N.J.

1982)

Butler v. Acme Mkts., Inc., 445 A.2d 1141,
(emphasis

in

original).

Nor

is

“expert

testimony . . . required to establish causation in every tort
action.”

Weshifesky v. State Farm Fire and Cas. Co., 2006 WL

1194440, at *4 (N.J. Super. Ct. App. Div. May 4, 2006).

AOA and

Delta Fair may be able to show Belle City’s negligence at trial
using only lay witnesses.

At this stage and on the authority

provided, Belle City has not established that they could not.
3.

AOA and Delta Fair’s Negligence

Belle City argues that AOA and Delta Fair are not entitled
to indemnity or defense for their losses because the losses arise
from AOA and Delta Fair’s own negligence.
12.)

(ECF No. 101-1 at 10-

In response, AOA and Delta Fair argue that the Court should

read the IAC’s indemnity provision broadly to cover losses caused
by the “negligence of others,” including the negligence of AOA
or Delta Fair, or the indemnity provision “would be improperly
rendered surplusage.”
In

New

Jersey,

(ECF No. 103 at 18-19.)
“a

contract

will

not

be

construed

to

indemnify the indemnitee against losses resulting from its own
negligence unless such an intention is expressed in unequivocal
terms.”

Ramos, 510 A.2d at 1159.

To indemnify an indemnitee

for its own negligence, an indemnity provision “must specifically
reference the negligence or fault of the indemnitee.”
33

Azurak v.

Corp. Prop. Inv’rs, 814 A.2d 600, 601 (N.J. 2003); see also
Mantilla v. NC Mall Assocs., 770 A.2d 1144, 1151 (N.J. 2001)
(indemnity

provision

did

not

cover

losses

arising

from

indemnitee’s own negligence where it did not “expressly state”
that it would); Kieffer, 14 A.3d at 743 (“[S]hifting liability
to an indemnitor must be accomplished only through express and
unequivocal language.”).
The

IAC’s

indemnity

provision

says

nothing

about

indemnifying AOA and Delta Fair for losses arising from their
own negligence.

The indemnity provision states only that it

covers “any and all injuries, claims, losses or liabilities which
. . .

arise

hereunder.”

in

connection

(ECF

No.

42-2

with

[Belle

¶ 17.)

City’s]

That

engagement

language

is

not

sufficiently unequivocal to reach losses that AOA and Delta Fair
caused.

Only a specific reference to AOA and Delta Fair’s

negligence in the indemnity provision would suffice.

Azurak,

814 A.2d at 601.
AOA and Delta Fair rely on the canon against surplusage,
which counsels that “all parts of [a] writing and every word of
it will[,] if possible, be given effect.”

Maselli v. Valley

Nat’l Bancorp., No. A-0440-16T1, 2018 WL 828053, at *2 (N.J.
Super. Ct. App. Div. Feb. 13, 2018) (quoting Wash. Const. Co. v.
Spinella, 8 N.J. 212, 217 (1951)); see also In re Att’y Gen.’s
“Directive

on

Exit

Polling:

Media
34

and

Non-Partisan

Public

Interest Groups,” Issued July 18, 2007, 981 A.2d 64, 72 (N.J.
2009) (“We must presume that every word in a statute has meaning
and is not mere surplusage, and therefore we must give those
words effect and not render them a nullity.”).
AOA and Delta Fair neither identify any superfluous language
in the IAC’s indemnity provision nor explain why a background
canon of statutory interpretation should override the New Jersey
Supreme

Court’s

specific

indemnity provisions.

rules

for

the

interpretation

of

Because it says nothing about AOA and

Delta Fair’s negligence, the IAC does not entitle AOA or Delta
Fair to indemnity or defense for losses they caused.
However, Belle City has not met its burden at summary
judgment to show that AOA and Delta Fair’s losses in fact arose
from their own negligence.

“The fundamental elements of a

negligence claim are a duty of care”; a “breach of that duty”;
“injury”

that

“damages.”

is

“proximately

caused

by

the

breach”;

and

G.A.H. v. K.G.G., 210 A.3d 907, 914 (N.J. 2019)

(internal quotation marks and citation omitted).

Belle City has

not attempted to prove those elements of AOA and Delta Fair’s
alleged negligence with competent evidence.

See Fed. R. Civ. P.

56(c)(1) (summary judgment movant must support its assertions by
“citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence
or presence of a genuine dispute”).
35

Belle City describes AOA

and Delta Fair’s roles at the Fair and notes that a Tennessee
state agency fined AOA for violating a Tennessee safety statute.
(ECF No. 101-1 at 11.)

That is insufficient to establish the

elements of negligence at the summary judgment stage.
Whether AOA and Delta Fair’s losses were caused by their
own negligence, Belle City’s negligence, or some other confluence
of events is an unsettled question of fact.

See Cupitt v. Penske

Truck Leasing Co., L.P., 2007 WL 2118972, at *3 (N.J. Super. Ct.
App. Div. July 25, 2007) (finding “issues of material fact that
preclude summary judgment” about whether indemnitee’s losses
arose

from

its

own

negligence

where

“few

facts

have

been

presented at this stage” and “we have been offered no basis . . .
to

determine”

whether

losses

indemnitee, or third party).

were

caused

by

indemnitor,

Belle City’s Motion for Summary

Judgment is DENIED.
V.

Conclusion
For the foregoing reasons, Belle City’s Motion for Summary

Judgment is DENIED, AOA and Delta Fair’s Motion to Dismiss is
DENIED, and AOA and Delta Fair’s Motion to Substitute is GRANTED
IN PART and DENIED IN PART.

36

So ordered this 6th day of January, 2020.

/s/ Samuel H. Mays, Jr.
Samuel H. Mays, Jr.
UNITED STATES DISTRICT JUDGE

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