Cavalli v. Port of Sale, Inc.
| Decision Date | 18 April 2013 |
| Docket Number | Civil No. 2012-09 |
| Court | U.S. District Court — Virgin Islands |
| Parties | MARIA CAVALLI, Plaintiff, v. PORT OF $ALE, INC., MOJO'S RUM & SURF SHACK, LLC, THE ROCK NIGHT CLUB & LOUNGE, LLC, and ASHANA N. POWELL, Defendants. |
Before the Court is plaintiff's Motion to Amend the Complaint [DE 109] pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure and Rule 15.1 of the Local Rules of Civil Procedure of the District Court of the Virgin Islands. Plaintiff seeks leave to add Commercial Securities Services, Ltd. ("Commercial") and InterScope Security, Inc. ("Interscope") as parties. Existing defendants Port of $ale, Inc., The Rock Night Club & Lounge, LLC ("The Rock") and Mojo's Rum & Surf Shack, LLC ("Mojo's") do not oppose the amendment. [DE 111 to DE 113].
On April 2, 2013, the Court held a pretrial conference during which it heard argument on plaintiff's motion to amend. That same day, the Court entered an Order [DE 124] authorizing the filing of additional authority in support of plaintiff's arguments presented during the pretrial conference. Plaintiff [DE 129]1 and The Rock [DE 128] made additional submissions.
Plaintiff initiated this action on February 7, 2012. Plaintiff alleges injuries resulting from a physical assault by defendant Powell that occurred on March 1, 2010. The assault arose out of a verbal altercation occurring initially at The Rock and continuing onto the premises of Mojo's, both of which are tenants of Port of $ale, Inc. ("PO$I"). In her complaint, plaintiff alleges that the defendants' security personnel and employees failed to take reasonable steps to protect her and accordingly brings claims for premises liability as well as negligence based on inadequate security. Plaintiff now claims that, through discovery, she learned that the security officers present at the time of plaintiff's injury were not defendants' employees, but were instead employed by Commercial and/or Interscope.
Federal Rule of Civil Procedure 15(a) provides "a party may amend its pleading only with the opposing party's written consent or the court's leave," FED. R. CIV. P. 15(a)(2), where, as here, a responsive pleading has been served and the amendment is requested over 21 days after said service. Rule 15(a) provides further that "[t]he court should freely give leave when justice so requires." Id. A court may deny a motion for leave to amend when certain factors are present, including "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 by virtue of allowance of the amendment, [and] the futility of the amendment . . . ." Dole v. Arco Chemical Co., 921 F.2d 484, 487 (3d Cir. 1990) (alteration added) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
Here, the issue is whether amendment is futile, because plaintiff made the request to amend on February 21, 2013, after the two-year statute of limitations on plaintiff's claims hadexpired. 5 V.I.C. § 31(5)(A) (); see Garvin v. City of Philadelphia, 354 F.3d 215, 222 (3d Cir. 2003) (). Dull v. W. Manchester Twp. Police Dep't, 2008 U.S. Dist. LEXIS 21412, at *10 (M.D. Pa. Mar. 17, 2008); see Garvin, 354 F.3d at 220 ().
Rule 15(c) enumerates three prerequisites for an amendment to relate back to the original complaint. First, the claim against the proposed new defendant must relate to the same conduct, transaction or occurrence set forth in the original complaint. FED. R. CIV. P. 15(c)(1)(C). Second, within the 120-day time period set forth in Rule 4(m), the party to be added must have had enough notice of the action to prevent prejudice in defending it. See FED. R. CIV. P. 4(m); FED. R. CIV. P. 15(c)(1)(C)(i). Third, the proposed new defendant knew or should have known (again, within the 120-day period) that "but for a mistake concerning the proper party's identity," it would have been named in the initial complaint. See FED. R. CIV. P. 4(m); FED. R. CIV. P. 15(c)(1)(C)(ii); see also Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 194 (3d Cir. 2001) ().
Plaintiff does not dispute that the two year statute of limitations is applicable to her claims. She argues, however, that her motion should be granted on two bases: the relation back doctrine and the discovery rule. Pl.'s Mem. ¶ 14; Pl.'s Supplemental Motion at 2-6. The Court addresses each argument in turn.
An amended pleading arises out of the same conduct, transaction or occurrence as the original pleading if it shares a "common core of operative facts." USX Corp. v. Barnhart, 395 F.3d 161, 167 (3d Cir. 2004) (citation omitted). To meet this burden, plaintiff must show that the claims set forth in her original pleading arise from "similar facts . . . all occurring around dates similar to those alleged in [the] amended pleading." Stewart v. Phil. Hous. Auth., 487 F. Supp. 2d 584, 589 (E.D. Pa. 2007) (alteration added). The general factual situation and the legal theory on which plaintiff wishes to proceed against the proposed defendants remain unchanged from what was alleged in the complaint. Accordingly, plaintiff has satisfied the first requirement of Rule 15(c)(1)(C).
Plaintiff must next establish that the proposed new defendants received notice of plaintiff's action within 120 days of the filing of the original complaint, and that they will not be prejudiced in maintaining a defense on the merits. FED. R. CIV. P. 15(c)(1)(C)(i); see Singletary, 266 F.3d at 194 () (citation omitted). "[T]he 'prejudice' to which the Rule refers is that suffered by one who, for lack of timely notice that a suit has been instituted, must set about assembling evidenceand constructing a defense when the case is already stale." Garvin, 354 F.3d at 222 n.6 (alteration in original & citation omitted). Thus, plaintiff must meet "two requirements, notice and the absence of prejudice, each of which must be satisfied." Singletary, 266 F.3d at 194 (citing Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 458 (3d Cir. 1996)). Notice, for purposes of Rule 15(c)(1)(C)(i), may be actual, constructive, or imputed. Singletary, 266 F.3d at 195-6; accord Miller v. Hassinger, 173 Fed. Appx. 948, 955 (3d Cir. 2006); cf. Buchanan v. Reliance Ins. Co. (In re Color Tile, Inc.), 475 F.3d 508, 512 (3d Cir. 2007) (); Bryant v. Vernoski, 2012 U.S. Dist. LEXIS 47498, at *8 (M.D. Pa. Apr. 4, 2012) (). There are two methods of establishing constructive or imputed notice: (1) the "shared attorney" method, and (2) the "identity of interest" method. Miller, 173 Fed. Appx. at 956; see Hiscock, 2013 U.S. Dist. LEXIS 26159, at *10 (). The notice received must be notice that the plaintiff has brought the action - not that one may be filed. Singletary, 266 F.3d at 195. Notice of the events or conduct complained of is not sufficient. Id.
After the parties' last appearance before the Court, Mojo's produced a copy of a certified letter dated April 3, 2012 from its counsel to Mr. Flemon Lewis ("Lewis"), President of Interscope. In the letter, Mojo's counsel referenced a "discussion" with Lewis regarding the instant action and sought defense and indemnification. [DE 129-1]. Mojo's counsel had also included a copy of the complaint with the letter. Accordingly, plaintiff has met her burden in demonstrating that Interscope received actual notice of the instant lawsuit within 120 days of thefiling of the complaint. Moreover, the Court discerns no undue prejudice to Interscope in maintaining a defense.
Initially, plaintiff argued that "[u]pon information and belief," Commercial received actual notice of these proceedings because it "had discussions with agents of the current [d]efendants" within the required timeframe under Rule 4(m), but she did not provide any evidence to support her "belief." Now plaintiff contends the April 3, 2012 letter from Mojo's to Interscope "provides sufficient inferential evidence that Commercial also had notice of the institution of the action with the 120 day period." Pl.'s Supplemental Mem. at 3 [DE 129]. Plaintiff neither explains this conclusory assertion, nor does she offer any evidence to support it. Accordingly, plaintiff has not established that Commercial received timely actual notice of the instant matter.
Plaintiff also argues that the "identity of interest" method establishes constructive or imputed notice to Commercial. This method creates a presumption that a proposed defendant learned of the action from others closely associated with that proposed defen...
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