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H.R. v. Double J Logistics, LLC

United States District Court, S.D. Mississippi, Northern Division

September 19, 2017

H.R., A MINOR CHILD WHO SUES BY AND THROUGH HER MOTHER AND NEXT FRIEND, KIMBERLY ROBINSON, INDIVIDUALLY AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF BILLY ROBINSON, DECEASED PLAINTIFF
v.
DOUBLE J LOGISTICS, LLC, A CORPORATION; SKYMILE LOGISTICS, INC., A CORPORATION; DERRICK A. FRANKLIN, AN INDIVIDUAL; ZEWDIE D. DUGDA, AN INDIVIDUAL AND JOHN DOES I-X DEFENDANTS WITH CROSS-CLAIMS AND COUNTERCLAIMS DERRICK A. FRANKLIN, AN INDIVIDUAL AND DOUBLE J LOGISTICS, LLC, A CORPORATION COUNTER/CROSS-PLAINTIFFS
v.
ZEWDIE D. DUGDA, AN INDIVIDUAL, SKYMILE LOGISTICS, INC., A CORPORATION CROSS-DEFENDANTS THE WRONGFUL DEATH BENEFICIARIES OF BILLY ROBINSON, DECEASED, BY AND THROUGH H.R., A MINOR COUNTER-DEFENDANT AND UNITED PARCEL SERVICE, INC. THIRD-PARTY DEFENDANT

          MEMORANDUM OPINION AND ORDER

          TOM S. LEE, UNITED STATES DISTRICT JUDGE

         Third-party defendant United Parcel Service, Inc. (UPS) has filed objections to the magistrate judge's June 26, 2017 order granting the motion of counter/cross-plaintiffs Derrick A. Franklin and Double J Logistics, LLC (Double J) to amend to add claims against UPS and UPS driver/employee Brad Lovelace. Franklin and Double J have responded in support of the magistrate judge's ruling. The court, having considered the memoranda of authorities, together with the record in this cause, concludes the magistrate judge's order should be vacated. The court further concludes that the motion to amend should be denied.

         This case arises from a vehicle accident involving three tractor-trailer rigs which resulted in the death of Billy Robinson. Around 3:45 a.m. on August 11, 2016, defendant Franklin, while traveling eastbound on Interstate 20 in a tractor-trailer rig owned by Double J, struck the rear of a tractor-trailer owned by Skymile Logistics and operated by Zewdie Dugba. According to the complaint filed by Billy Robinson's wrongful death beneficiaries, following this collision, both vehicles stopped in the right lane of the interstate. Billy Robinson, an employee of UPS operating a UPS tractor-trailer eastbound on I-20, approached the accident scene and was unable to avoid the Franklin and Dugba vehicles. His vehicle collided with the rear of Franklin's vehicle, and as a result of the collision, Billy Robinson was killed.

         Robinson's heirs brought this action seeking to recover damages for his alleged wrongful death. Along with their answers, Dugba/Skymile and Franklin/Double J filed cross-claims against each other, counterclaims against Robinson's heirs alleging Robinson was negligent in failing to avoid the collision, and third-party complaints against UPS alleging UPS was vicariously liable for Robinson's negligence.[1]

         In February 2017, Brad Lovelace, a UPS driver, was deposed. Lovelace testified that in the early morning hours of August 11, 2016, he departed the UPS facility in Jackson headed to Tuscaloosa, Alabama via I-20 East. As he approached the Lake exit, it was very dark and visibility was limited. He noticed a car in front of him in the right lane suddenly brake hard and move to the left, which indicated a hazard ahead. Lovelace barely managed to avoid a collision with the Franklin/Double J and Dugba/Skymile vehicles. He testified that when he came up on the trailers, there was “no lighting on whatsoever. No marker lights, no caution lights, no flashers going, and they did not have any of their reflective triangles out behind the vehicle.” After passing the wreck, Lovelace continued on his way. Lovelace testified that at that time, he was aware that there were other UPS tractor-trailers traveling eastbound on I-20, some distance behind him, those vehicles having been dispatched from the UPS hub in Jackson close to the time he was dispatched. When asked, he stated he did not radio these other drivers to alert them to the hazard since he did not have a CB radio in his truck and he did not have phone numbers for any of these other drivers so could not contact them by phone. He further stated that he did not call his supervisor to let him know there was a hazard in the roadway.

         In light of Lovelace's testimony, Franklin/Double J moved to amend their third-party complaint to (1) add Lovelace as a defendant based on allegations that he was negligent in failing to communicate with his fellow UPS drivers to warn them of the Dugda-Franklin collision; and (2) add claims against UPS of vicarious liability for Lovelace's negligence and for its own independent negligence in (a) failing to provide a radio or other communications system or other equipment for the use of its drivers to warn and alert other UPS drivers who might be approaching a hazard in their path of travel and (b) failing to implement and train its drivers on reasonable safety policies, procedures and/or protocols, including communication between fellow UPS drivers, to alert its drivers of potentially hazardous conditions.

         UPS opposed the motion to amend on the bases of futility and undue prejudice. In granting the motion to amend, the magistrate judge did not consider or reject UPS's arguments in opposition to the motion, including, in particular, its futility objection. Rather, he determined to “make no finding regarding Defendants' arguments on the substantive merits of the proposed amended complaint, ” reasoning that “[t]he more proper course would be to test the allegations and claims in the context of a dispositive motion.” He thus concluded that the motion to amend should be granted, since it was timely filed, and given the liberal amendment rules. UPS contends on its present motion for review that it presented meritorious arguments in opposition to the motion to amend which the magistrate judge failed to even consider. UPS submits, therefore, that the ruling was clearly erroneous and/or contrary to law.

         Pursuant to 28 U.S.C. § 636, a magistrate judge may hear and determine pretrial non-dispositive matters. The court's review of a magistrate judge's order on a non-dispositive motion is under a “clearly erroneous or contrary to law” standard. See Fed.R.Civ.P. 72(a) (upon objection by party to magistrate judge's ruling on nondispositive pretrial matter, “[t]he district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.”); 28 U.S.C. § 636(b)(1)(A) (district judge “may reconsider any pretrial matter ... where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.”).[2] A factual finding is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). The magistrate judge's legal conclusions are reviewed de novo. Moore v. Ford Motor Co., 755 F.3d 802, 806 (5th Cir. 2014). See also Ambrose-Frazier v. Herzing Inc., No. 15-1324, 2016 WL 890406, at *2 (E.D. La. Mar. 9, 2016) (“A legal conclusion is contrary to law when the magistrate fails to apply or misapplies relevant statutes, case law, or rules of procedure.”) (internal quotation marks and citation omitted).

         Rule 15(a) of the Federal Rules of Civil Procedure provides that “[t]he court should freely give leave [to amend] when justice so requires.” The Fifth Circuit has identified the following factors for the court to consider in deciding whether to grant leave to amend: “(1) undue delay, (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by previous amendment, (4) undue prejudice to the opposing party, and (5) futility of the amendment.” Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citations omitted). Here, no contention was made that there were any issues related to delay or bad faith; and UPS agreed this was Franklin/Double J's first attempt to amend their pleadings. UPS argued that the motion to amend should be denied as futile and creating undue prejudice, and further because it was not a proper third-party claim.

         Some courts have found a magistrate judge's failure to fully consider a defendant's specific objections to a motion to amend would constitute error, and potentially reversible error, if there was merit to the objection. See, e.g., Jones v. Casey's Gen. Stores, 538 F.Supp.2d 1094, 1101 (D. Iowa 2008) (finding that “magistrate judge erred in not fully and explicitly considering Defendants' argument of undue delay and prejudice, ” but finding that this did not warrant reversal where the defendant failed to establish that granting motion to amend was in fact prejudicial to it); cf. Illinois Nat. Ins. Co. v. Nordic PLC Const., Inc., No. CIV. 11-00515 SOM, 2013 WL 1337007, at *4 (D. Haw. Mar. 28, 2013) (magistrate judge's failure to fully consider non-movant's arguments regarding undue delay and prejudice “would be reversible error only if the party opposing the motion for leave to amend satisfied its burden of establishing prejudice”).

         Some courts have also held that a magistrate judge lacks authority to consider a motion to amend to which objection is made based on futility, though there is a divergence of opinions on this matter. In Thornton v. Blake, No. CIVA 308CV775HTW-LRA, 2009 WL 5064753 (S.D.Miss. Dec. 16, 2009), Magistrate Judge Anderson found that a ruling on a defendant's futility objection in response to a motion to amend would be “premature”; but she went on to state that a finding of futility by her in the context of a motion to amend

would be tantamount to this Magistrate Judge making a dispositive ruling. The legal issues set forth in these memoranda should be presented to the district judge via a dispositive motion, based upon the allegations contained in the Amended Complaint. At this stage of the litigation, the Court finds that the amendment should be allowed. Defendants' arguments regarding the futility of the amendment may be considered by [the district judge] when dispositive issues are determined.

Id. at *1. Another court has recently noted:

The law is not settled regarding whether a motion to amend that is denied is a case-dispositive motion under 28 U.S.C. § 636. “Generally, a motion for leave to amend the pleadings is a nondispositive matter that may be ruled on by a magistrate judge pursuant to 28 U.S.C. § 636(b)(1).” Cazares v. Morris, 2011 WL 2414543, at *2 (D. Ariz. June 16, 2011) (citing, inter alia, JJCO, Inc. v. Isuzu Motors America, Inc., 2009 WL 3818247, *2 (D. Haw. Nov. 12, 2009)) (magistrate judge's denial of a motion for leave to amend complaint is not a dispositive ruling) (citing, in turn, U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1102 n.1 (9th Cir. 1985)), superseded by statute on other grounds as recognized in Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996) (noting that the plaintiff's motion for leave to amend its Complaint was properly treated as a nondispositive motion when the magistrate judge granted the plaintiff's motion). There are circumstances, such as when a “magistrate judge denies a party the opportunity to assert a new claim or defense[, ]” or “when the denial is specifically premised on futility[, ]” that courts have “view[ed] a magistrate judge's denial of a motion for leave to amend as a dispositive ruling.” JJCO, Inc., supra, 2009 WL 3818247, at *3 (citing cases). That “view is not universal[, ]” as the court in JJCO, Inc. astutely observed, however. Id. at *3 (citing Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006)) (finding a magistrate judge's denial of a motion to amend on grounds of futility to be nondispositive and subject to review for clear error by the district court); Morg ...

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