Bulldog Excavating, LLC v. Deivis Trucking, LLC et al

Filing 27

MEMORANDUM OPINION AND ORDER granting 23 MOTION by Bulldog Excavating, LLC for Leave to File an Amended Complaint; directing the Amended Complaint [ECF No. 23-1] be entered today. Signed by Chief Judge Frank W. Volk on 3/10/2025. (cc: counsel of record; any unrepresented parties) (kew)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
BULLDOG EXCAVATING, LLC,
a West Virginia Limited Liability Company,
Plaintiff,
v.

CIVIL ACTION NO. 2:24-cv-00595

DEIVIS TRUCKING, LLC,
LOWBOY SERVICES, INC., and
JB HARRIS TRANSPORT AND LOGISTICS,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are Plaintiff Bulldog Excavating, LLC (“Bulldog Excavating”) Motion for
Leave to File an Amended Complaint, [ECF 23], filed January 30, 2025. Defendant JB Harris
Transport and Logistics (“JB Harris”) filed a response in opposition to the Motion on February 7,
2025, [ECF 25]. Bulldog Excavating replied on February 9, 2025. [ECF 26]. The matter is ready
for adjudication.
I.
On September 17, 2024, Bulldog Excavating instituted this action in the Circuit
Court of Mingo County, seeking damages related “solely [to the] lost revenue for the actions
referenced herein, and the storage bill that was incurred. The physical property damage is being
resolved through a separate insurance claim.” [ECF 1-1 at 1]. On October 22, 2024, JB Harris
removed. [ECF 1].

On October 28, 2024, a summons was returned reflecting Bulldog Excavating
personally served the owner of the tractor, Deivis Trucking, LLC (“Deivis Trucking”). [ECF 5].
Service was accomplished on October 26, 2024, with an answer due by November 18, 2024. [Id.].
On October 29, 2024, Bulldog Excavating filed its Motion to Remand the Case to
Circuit Court of Mingo County and the accompanying memorandum of law. [ECF 6, 7]. On
October 29, 2024, JB Harris answered. [ECF 8]. On November 12, 2024, JB Harris responded.
[ECF 11].
On November 18, 2024, a summons was filed reflecting Bulldog Excavating
personally served the owner of the trailer, Lowboy Services, Inc., (“Lowboy Services”). [ECF 13].
Service was accomplished on November 14, 2024, with an answer due by December 5, 2024. [Id.].
On December 5, 2024, the Court entered its Scheduling Order. [ECF 15]. The
deadline for the parties to amend the pleadings or join parties was January 31, 2025. [Id.].
On January 14, 2021, the Court entered a memorandum opinion and order denying
the motion to remand. [ECF 21]. The Court found by a preponderance of the evidence the amount
in controversy exceeds the sum of $75,000.00, exclusive of interest and costs. [Id. at 7].
On January 30, 2025, Bulldog Excavating filed a Motion for Leave to File an
Amended Complaint. [ECF 23]. It contends “leave to amend is warranted as facts have risen [sic]
during initial discovery which confirm what the Plaintiff suspected, but did not [k]now for certain.”
[Id. at 3]. Specifically, “[a]s part of its due diligence in brokering the haul, Defendant JB Harris
was responsible for ensuring that its subcontract haulers were adequately insured to provide
coverage for loss during the haul.” [Id.]. On the same date, JB Harris filed a crossclaim against
Deivis Trucking and Lowboy Services. [ECF 24].

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On February 7, 2025, JB Harris filed a response. [ECF 25]. It asserts it “did not
know, and could not know, that after this fire and damage to the truck that the insurance company
for Deivis, Zurich American Insurance Company, would deny both liability coverage and cargo
coverage for this loss.” [Id. at 3]. Moreover, “[t]his is the entire reason that JB Harris has been
dragged into this case – the fact that Zurich denied coverage (to both Deivis and then JB Harris as
its ‘additional insured’), and the fact that both Deivis and Lowboy have refused to acknowledge
or participate in this lawsuit.” [Id.] Chiefly, JB Harris alleges the proposed amendments are
prejudicial, made in bad faith, and futile. [Id.].
On February 9, 2025, Bulldog Excavating replied. [ECF 26]. Bulldog Excavating
contends JB Harris’ response “is nothing more than its continued effort to shirk its duty owed to
Plaintiff.” [Id. at 1]. Additionally, it asserts JB Harris has “failed to demonstrate any actual
prejudice that would warrant denying” the amendment. [Id.]. Bulldog Excavating further maintain
that JB Harris merely “reiterating . . . [it] had a Certificate of Liability Insurance” does not abrogate
“the fact that the Plaintiff may reasonably allege a breach of duty in JB Harris’s actions or
omissions that contributed to the damage suffered.” [Id.].
II.
Pursuant to Rule 15(a) “leave to amend a pleading shall be freely given ‘when
justice so requires.’” Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). Our Court
of Appeals has “interpreted Rule 15(a) to provide that ‘leave to amend a pleading should be denied
only when the amendment would be prejudicial to the opposing party, there has been bad faith on
the part of the moving party, or the amendment would be futile.” Laber v. Harvey, 438 F.3d 404,
426 (4th Cir. 2006) (citing Johnson, 785 F.2d at 509). “Whether an amendment is prejudicial will
often be determined by the nature of the amendment and its timing.” Id. at 427. A proposed

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amendment is futile when it is “clearly insufficient or frivolous on its face.” Save Our Sound OBX,
Inc. v. N. Carolina Dep't of Transportation, 914 F.3d 213, 228 (4th Cir. 2019) (quoting Johnson,
785 F.2d at 510). “A proposed amendment is also futile if the claim it presents would not survive
a motion to dismiss.” Id. (citing Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995)).
III.
The Scheduling Order [ECF 15], set January 31, 2025, as the deadline to amend the
pleadings or join parties. Bulldog Excavating sought to amend on that same date. Thus, Bulldog
Excavating need only satisfy the liberal amendment standard required by Federal Rule of Civil
Procedure 15(a). According to Rule 15(a)(2), “a party may amend its pleading only with . . . the
court’s leave,” and “[t]he court should freely give leave when justice so requires.” While JB Harris
asserts the amendment is (1) prejudicial, (2) made in bad faith, and (3) futile, the Court disagrees.
JB Harris contends it is “patently unfair” and “extremely prejudicial to JB Harris, to allow the
Plaintiff to amend its Complaint at this late stage to add another negligence claim against it. [ECF
25 at 3]. The Court disagrees. Bulldog Excavating has been asserting negligence since the original
complaint. That complaint included: (1) Count III as a negligence claim, (2) Bulldog Excavating
incorporating all preceding paragraphs in the negligence claim, (3) a single statement specifically
directed to Defendant Deivis and Lowboy Services, and (4) three paragraphs simply referring to
“Defendants.” [See generally ECF 1-1, Ex. 1 at 5]. Lastly, when assessing whether an amendment
is futile, leave to amend “should only be denied on the ground of futility when the proposed
amendment is clearly insufficient or frivolous on its face.” Johnson v. Oroweat Foods Co., 785
F.2d 503, 510 (4th Cir. 1986). Inasmuch as the proposed amendments are not frivolous, and
ultimately assist in advancing Bulldog Excavating’s claims, they are not futile.

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Based on the foregoing, the Court FINDS no indication of prejudice, bad faith, or
futility. Furthermore, inasmuch as it appears both Deivis Trucking and Lowboy Services, Inc.,
have failed to answer or otherwise respond to the complaint, the Clerk is directed to enter default
against them.
IV.
Accordingly, the Court GRANTS Bulldog Excavating’s Motion for Leave to File
an Amended Complaint [ECF 23] and ORDERS the Amended Complaint attached as Exhibit #1
be entered today.
The Clerk is directed to transmit copies of this order to all counsel of record and
any unrepresented parties.
ENTERED:

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March 10, 2025