Orion Marine Construction, Inc. v. Coyle et al
ORDER AND OPINION granting 49 Motion for Leave to File.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
ORION MARINE CONSTRUCTION, INC.,
MARK COYLE, et al,
February 14, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-00522
ORDER AND OPINION
Pending before the Court in the above-referenced cause is Plaintiff Orion Marine
Construction, Inc.’s (“Orion”) Opposed Motion for Leave to File Second Amended Complaint
(“Motion”) to add Crosby Tugs, LLC (“Crosby Tugs”). Doc. 49. Defendants, Crosby Dredging
LLC (TX) and Crosby Dredging LLC (LA)’s (“Crosby Dredging”) and Mark Coyle (“Coyle),
have not filed a response. Thus, under Local Rule 7.4, the Motion is deemed unopposed. After
careful consideration of the filings, record, and law, the Court grants Plaintiff’s motion.
The background of this case has been detailed in prior opinions and is incorporated
On February 16, 2017, Orion filed its Complaint. Doc. 1. On February 17, it filed its First
Amended Complaint. Doc. 8. On June 30, 2017, the deadline to add new parties, Orion filed its
Motion to add Crosby Tugs. Docs. 48–49.
In its motion, Orion alleges that during discovery and during the March 29, 2017 hearing,
Orion learned of Crosby Tugs’ involvement in its claims. From discovery, Orion alleges that
Crosby Tugs received “Orion’s trade secrets and confidential information.” Doc. 49 at 3.
Specifically, Orion alleges that all e-mails “sent to and from Kurt Crosby . . . as managing
member of Crosby Dredging were sent to . . . @crosbytugs.com.” In support, Orion provides an
“email@example.com,” Doc. 43-7 at 1, Ex. V; an e-mail from Coyle to Aaron Guidry at
“firstname.lastname@example.org” attaching Coyle’s “Prospective Projects 2016” list, Doc. 43-17 at 1,
Ex. FF; and an e-mail from Coyle to Kurt Crosby at “email@example.com” forwarding “survey
data for Targa Galena park,” Doc. 43-18 at 1, Ex. GG. While it had these e-mails from the prior
forensic examination, Orion alleges that it did not know the degree of Crosby Tugs’ involvement
until after Maturin’s testimony. Doc. 49 ¶ 8, 10.
Orion also alleges that during Roland Maturin’s (“Maturin”) testimony, Orion learned
that Crosby Tugs “jointly participate[s] in the pricing and bidding process for Crosby Dredging.
Doc. 49 ¶ 9. Orion also alleges that the testimony indicated that “these companies operate as a
single business unit.” Id. at ¶ 8. Orion does not refer to specific sections of the transcript, but
refers the Court to the testimony of Roland Maturin, Operations Manager for Crosby Dredging.
During his testimony, Maturin testified that Crosby Tugs and Dredging the share some
marketing and sales resources, and that job bidding is discussed in a round table with multiple
divisions of the company. Maturin testified that Crosby Tugs and Dredging share some
marketing materials, in pertinent part, as follows:
Q: But in terms of identifying, developing and bidding on work, no one at Crosby
tugs has any involvement with that for Crosby Dredging. Is that fair?
A In bidding, the only involvement that the Crosby people would have would be
in the marketing because we have a big marketing group, and there’s
overlay between those two.
Transcript of March 29, 2017 Hearing, 3-9:10–15. Maturin also testified that the companies
share sales resources, as follows: “They all bring—the salesmen bring stuff to the table and then
each individual company, myself, will decide whether it’s something that’s viable for us or not.”
Maturin also testified that job bidding was determined by a round table “bid committee”
composed of the “financial department, the other owners[,] . . . [a]nd sometimes Human
Resources.” Tr. 3-16:21–25. All of them “participate in the numbers.” Tr. 3-17:6–11. Maturin
next testified that Crosby Dredging would “estimate” “our cost,” and then it would evaluate a
“bunch of factors,” such as “what’s the market,” how to “posture ourselves if we bid this job,”
and “[i]s there anything else in the area?” Tr. 3-17:21–3-18:3. Then, Human Resources “Might
say, yes, we have got some extra people here . . . look at . . . if their pay.” Tr. 3-18:4–13. Thus,
Orion alleges Crosby Tugs “received Orion’s trade secrets” or that “employees of Crosby Tugs
assist Crosby Dredging n the pricing and bidding process.” Doc. 49 ¶ 12.
Accordingly, Orion requests leave to amend its Complaint to add claims of “Texas
Uniform Trade Secrets Act, the Louisiana Uniform Trade Secrets Act, the Defend Trade Secrets
Act, and the Louisiana Unfair Trade Practice” against Crosby Tugs. Doc. 49 at 3–4. Orion
requests that it be granted permission to amend its pleading under Federal Rule of Civil
procedure 15(a)(2). Orion asserts that the motion is timely under the agreed-scheduling order as
filed on the deadline, Doc. 48, and that there is no evidence of delay, bad faith, or undue
prejudice because Orion recently discovered the degree of Crosby Tugs’ involvement, Doc. 49 at
II. Legal Standard and Discussion
“[T]he grant or denial of an opportunity to amend is within the discretion of the District
Court.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Ordinarily, Rule 15(a) of the Federal Rules
of Civil Procedure governs the amendment of pleadings.” Filgueira v. U.S. Bank Nat. Ass’n, 734
F.3d 420, 422 (5th Cir. 2013) (per curiam) (unpublished). Rule 15(a) allows a party to amend its
pleadings once as a matter of course within 21 days of serving it or, if a responsive pleading is
required, 21 days after service of a responsive pleading. FED. R. CIV. P. 15(a)(1). “In all other
cases, a party may amend its pleading only with the opposing party’s written consent or the
FED. R. CIV. P. 15(a)(2).
In deciding whether to grant leave to file an amended pleading, the district court “should
consider factors 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, and futility of amendment.” In re Am. Intern. Refinery, Inc., 676 F.3d 455, 466
(5th Cir. 2012) (quoting In re Southmark, 88 F.3d 311, 315 (5th Cir. 1996)).
Once a trial court imposes a scheduling order, however, Federal Rules of Civil Procedure
15 and 16 operate together to govern the amendment of pleadings. Tex. Indigenous Council v.
Simpkins, 544 Fed. App’x 418, 420 (5th Cir. 2013) (per curiam) (unpublished). Under Rule
16(b), once a scheduling order’s deadline has passed, that scheduling order may be modified
“only for good cause and with the judge’s consent.” FED. R. CIV. P. 16(b)(4). Accordingly, in
order for the more liberal standard of Rule 15(a) to apply to a post-deadline amendment, a party
“must show good cause for not meeting the deadline.” Fahim v. Marriott Hotel Servs., Inc., 551
F.3d 344, 348 (5th Cir. 2008) (citation and internal quotation marks omitted).
Here, Orion sought leave to amend its pleadings to add Crosby Tugs on the last day to
join parties. Doc. 48–49. The Court finds Orion’s request to add Crosby Tugs is timely, and thus
Rule 15’s more liberal standard governs the Court’s consideration. See Fahim, 551 F.3d at 348.
The Amendment should be allowed unless undue delay, bad faith or dilatory motive is shown.
See In re Am. Intern. Refinery, Inc., 676 F.3d at 466
Undue delay, bad faith, or dilatory motive is not shown here because Orion alleges that
the Motion arose following an examination of forensic evidence after hearing the testimony of
Martuin at the March hearing. Doc. 49 at 3. This is Orion’s second amended complaint, and the
Motion is within the Court’s own deadline to join parties. Also, the Motion is unopposed. For
these reasons, the Court holds that the June Motion is not the result of undue delay, bad faith, or
dilatory motive. See generally In re Am. Intern. Refinery, Inc., 676 F.3d at 466.
For the foregoing reasons, it is hereby
ORDERED that Orion’s Opposed Motion for Leave to File Second Amended Complaint
(“Motion”) to add Crosby Tugs, LLC (“Crosby Tugs”), Doc. 49, is GRANTED.
SIGNED at Houston, Texas, this 14th day of February, 2018.
UNITED STATES DISTRICT JUDGE
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