Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hemsath v. J. Herschel Kendrick Moving & Storage Co.

November 6, 2006

PAUL E. HEMSATH, PLAINTIFF
v.
J. HERSCHEL KENDRICK MOVING & STORAGE COMPANY, ET. AL., DEFENDANTS



The opinion of the court was delivered by: Beckwith, J.

Hogan, M. J.

ORDER

This matter is before the Court on plaintiff's motion for leave to file a second amended complaint (Doc. 27), defendants' memorandum in opposition (Doc. 30), and plaintiff's reply (Doc. 31). Plaintiffs' motion for leave to amend was filed on July 7, 2006, the date previously established by the Court as the deadline for amending the complaint. (See Doc. 24, Calendar Order). On July 27, 2006, this Court issued an order granting plaintiff leave to amend the complaint on the grounds that the within motion was unopposed. The Court recognizes that this order was premature insofar as defendants had up to and including July 31, 2006, within which to file a memorandum in opposition to plaintiff's motion. See S.D. Ohio L.R. 7.2(a)(2); Fed. R. Civ. P. 5(b)(2)(D) & 6(e). Accordingly, the Court's previous order granting plaintiff leave to amend the complaint (Doc. 28) is hereby WITHDRAWN. The Court will now reconsider plaintiff's motion to amend the complaint in light of defendant's memorandum in opposition and plaintiff's reply thereto.

Plaintiff initiated this action with the filing of a complaint in state court alleging four state law causes of action sounding in breach of contract, negligence and conversion. (Doc. 1, Notice of Removal, Ex. 1, original complaint attached). Defendants removed the action to this Court and subsequently filed a motion to dismiss, arguing that plaintiff's state law claims were preempted by federal law, specifically the Carmack Amendment. (Doc. 3). Plaintiff then filed an amended complaint, which was permissible as of right, pursuant to Fed. R. Civ. P. 15(a). (Doc. 5, First Amended Complaint). The amended complaint re-alleged the four state law claims set forth in plaintiff's original complaint and added a fifth cause of action against defendant Stevens only, under the Carmack Amendment. (Id.). Defendants subsequently moved the Court to dismiss plaintiffs' state law claims alleged in the amended complaint (Docs. 3, 6), and the District Court granted that motion by Order dated April 14, 2006 (Doc. 15). The District Court noted in its Order that the case was to proceed on plaintiff's Carmack Amendment claim, and that such claim had been alleged against defendant Stevens only. (Id.). Without expressing an opinion on the merits of a request for leave to file a second amended complaint, the Court noted that such a motion was procedurally proper should plaintiff wish to assert a Carmack Amendment claim against defendant Kendrick. (Id.). Thus, on the date set by this Court as the deadline for seeking leave to amend the complaint, plaintiff filed the within motion. Defendant also filed a motion for judgment on the pleadings seeking dismissal of plaintiff's Carmack Amendment claim. The District Court denied the motion finding that plaintiff's allegations were adequate to set forth a Carmack Amendment claim. (Doc. 26).

Plaintiff seeks leave to amend the complaint to add a Carmack Amendment claim against defendant Kendrick. Plaintiff argues that pursuant to Fed. R. Civ. P. 15, such leave should be granted because defendant Kendrick would not be prejudiced by such an amendment, plaintiff's motion has not caused undue delay in the proceedings, and there is no basis to conclude that he motion was made in bad faith. Plaintiff asserts that the amendment is necessary to "accurately reflect the Order of [the District] Court filed June 28, 2006" and to "correct technical errors."

Defendants oppose plaintiff's motion to amend arguing that: (1) the motion has caused undue delay in the prosecution of this action; (2) the motion results from plaintiff's failure to act with due diligence and cure deficiencies in his previous pleadings; and (3) the motion unfairly prejudices defendant Kendrick.

The granting or denial of a motion to amend pursuant to Fed. R. Civ. P. 15(a) is within the discretion of the trial court. Leave to amend a complaint should be liberally granted. The Court may deny the motion to amend where the complaint, as amended, could not withstand a motion to dismiss. Matthews v. Jones, 35 F.3d 1046, 1050 (6th Cir. 1994); Thiokol Corp. v. Dept. of Treasury, 987 F.2d 376, 383 (6th Cir. 1993); Neighborhood Development Corp. v. Advisory Council on Historic Preservation, Department of Housing and Urban Development, City of Louisville, 632 F.2d 21, 23 (6th Cir. 1980). The Court should also consider factors such as undue delay, bad faith or dilatory motive on the part of the movant, the repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment. Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994). Leave to amend the complaint to add a new party should be denied where substantial prejudice would result to the opposing parties. See Foman v. Davis, 371 U.S. 178, 182 (1969); Janikowski v. Bendix Corp., 823 F.2d 945, 951-52 (6th Cir. 1987).

To the extent that plaintiff asserts his motion is necessary to "accurately reflect" the Court's prior order and to correct "technical errors, " this Court finds such arguments unpersuasive. The failure to plead a Carmack Amendment claim against defendant Kendrick was not occasioned by the District Court's June 28, 2006 Order. Rather, that order noted that plaintiff had alleged his Carmack Amendment claim against defendant Stevens only, and noted that plaintiff's counsel was well-aware of how to plead a claim against more than one defendant. Nor does this Court view counsel's decision to assert allegations against one defendant and not against another as a "technical error." Nevertheless, the Court concludes that under the authority of Fed. R. Civ. P., and acting within its discretion, plaintiff's motion for leave to amend should be granted.

Plaintiff's motion cannot be said to cause undue delay in the prosecution of this action where is was field within the deadline for amending the complaint as set forth by this Court in its Calendar Order following a scheduling conference with the parties. Despite defendant's assertion that it intends to file yet another motion for judgment on the pleadings, the Court does not find that the proposed amended complaint could in no way withstand a motion to dismiss or that amendment would be futile. Furthermore, defendant Kendrick will not be prejudiced by the amendment, as the allegations against this defendant, though recast under the Carmack Amendment, remain essentially unchanged, towit: defendants failed to properly move and store plaintiff's personal household goods and thereby caused damage to his personal property and actual losses. Defendant Kendrick has been on notice with respect to the basic allegations against it since plaintiff's original state law complaint was filed in September 2005. Having ample notice of the claims against it, Kendrick cannot now argue that it would somehow be unable to defend itself against these allegations.

Leave to amend a complaint should be liberally given and the decision is clearly within this Court's discretion. The Court concludes that such leave is appropriate in this instance and therefore ORDERS that the proposed amended complaint which was attached to plaintiff's motion be filed as of the date of this Order.

Timothy S. Hogan United States Magistrate Judge

20061106

© 1992-2006 VersusLaw ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.