Connecticut Light & Power Company v. USIC Locating Services, LLC
| Decision Date | 22 July 2021 |
| Docket Number | 3:20-cv-00403-CSH |
| Court | U.S. District Court — District of Connecticut |
| Parties | THE CONNECTICUT LIGHT & POWER COMPANY D/B/A EVERSOURCE ENERGY, AND EVERSOURCE ENERGY SERVICE COMPANY, Plaintiffs, v. USIC LOCATING SERVICES, LLC, AND NORTHLINE UTILITIES, LLC, Defendants. |
OMNIBUS RULING ON PENDING MOTIONS
In this diversity action, Plaintiffs, The Connecticut Light & Power Company, d/b/a Eversource Energy (“CL&P”) and Eversource Energy Service Company (“Eversource”), sue Defendants, USIC Locating Services, LLC (“USIC”) and Northline Utilities, LLC (“Northline”). The action arises out of alleged damage to CL&P's underground electrical facilities including, but not limited to, an underground 345kV transmission line/cable (the “Electrical Facilities”) during Northline's excavation and/or drilling in connection with utility pole setting work along the Post Road in Fairfield, Connecticut (the “Excavation Area”). See Doc. 1.
Plaintiffs state that, at all relevant times, USIC was the utility locator and mark out contractor for CL&P, id. at ¶ 14, Northline was retained by The United Illuminating Company, id. at ¶ 9, and Eversource provided administrative support and contract services for CL&P id. at ¶ 2. Plaintiffs further aver that USIC worked on behalf of CL&P pursuant to the terms of (1) a Cover Agreement between Eversource and USIC dated February 21, 2017 and (2) “attachments thereto which specifically incorporated by reference Eversource Energy General Terms and Conditions - Services, Equipment and Revision 11 Dated 8/1/2016 (‘GTCS')” Id. at ¶ 4. Plaintiffs refer collectively to the Cover Agreement, the attachments, and GTCS as the “Contract” and allege that it “required that USIC provide, among other things, utility locating and mark out services for [Eversource] and/or its affiliated companies including CL&P.” Id. at ¶ 4-5.
Plaintiffs claim that, pursuant to Connecticut's Call Before You Dig (“CBYD”) Law, Conn. Gen. Stat. § 16-345 et. seq., which sets forth the statutory requirements prior to any excavation within Connecticut, Northline submitted a CBYD ticket (“CBYD Ticket”) for the replacement of two utility poles on the Post Road in Fairfield, Connecticut. Id. at ¶¶ 10-12. The purpose of this ticket was to notify certain owners and operators of underground facilities prior to proposed excavations. Id. at ¶ 11. Northline's CBYD Ticket “set forth, among other things, the location in which the excavation and/or drilling by Northline was to be performed.” Id. at ¶ 12. Specifically, it contained “a written description as well as a hand-drawn map detailing the area in which the excavation and/or drilling by Northline was to be performed.” Id. at ¶ 13. “The locations of the two poles to be replaced were identified by white X marks on the existing poles, white tipped stakes in the location of the replacement poles, and white paint in the street with arrows pointing toward the location of the poles.” Id. USIC responded to Northline's CBYD Ticket and reported that the Excavation Area was clear of any CL&P underground facilities, equipment and/or utilities. Id. at ¶¶ 14-15.
Plaintiffs further claim that, on or about March 28, 2018, while excavating and/or drilling in the Excavation Area, “one or more agents(s), servant(s), and/or employee(s) of Northline came into contact with, undermined and/or damaged CL&P's Electrical Facilities” and caused substantial harm. Id. at ¶ 16. Plaintiffs allege that “Northline, its agents, servants, and/or employees, did not notify CL&P” of the damage to its Electrical Facilities. Id. at ¶ 17. As a result, Plaintiffs state that “CL&P was caused to undertake investigation and testing of its equipment and utilities in order to determine the cause and location at great expense” and that CL&P “did not immediately discover” the damage. Id. at ¶¶ 18, 19. Accordingly, CL&P incurred losses and expenses to “repair and/or replace” the Electrical Facilities at a cost of over $2 million. Id. at ¶ 20.
According to Plaintiffs, USIC is responsible for the damage to the Electrical Facilities under the Contract. Id. at ¶ 86. Moreover, Eversource provided USIC with written notice of the March 28, 2018 incident and “demanded that USIC respond to said notice and agree to provide reimbursement for said damage in accordance with USIC's obligations under the Contract.” Id. at ¶ 87. However, Plaintiffs claim, USIC has failed to respond to this written notice and failed to provide reimbursement; accordingly, it has “breached its obligations.” Id. at ¶¶ 88-89.
Plaintiffs' original Complaint, filed March 25, 2020, alleges one count of negligence against USIC (Count One, CL&P v. USIC), one count of negligence against Northline (Count Two, CL&P v. Northline), and one count of breach of contract against USIC (Count Three, Eversource v. USIC). Defendant USIC filed its Answer on June 18, 2020, and Defendant Northline filed its Answer on June 30, 2020. Both Answers deny several allegations in Plaintiffs' original Complaint and raise multiple affirmative defenses, including that Plaintiffs failed to state a claim and that Plaintiffs' claims are barred by the doctrine of laches, waiver, and/or estoppel. See Doc. 10; Doc. 13. Currently pending before the Court are (I) Plaintiffs' Motion to Amend the Complaint (“Motion to Amend”), which Northline opposes; (II) USIC's unopposed Motion to file a Crossclaim against Northline (“Crossclaim Motion”); (III) Plaintiffs' Consent Motion for Entry of a Protective Order (“Motion for Protective Order”); and (IV) the Plaintiffs' Consent Motions for Extension of Time. This Ruling resolves these motions.
On January 29, 2021, Plaintiffs filed their Motion to Amend. See Doc. 33. This motion proposes adding a statutory claim to the original Complaint's count of negligence against Northline, Count Two. In the original Complaint, Count Two alleged that Northline was negligent because it “failed to notify CL&P that it made contact with, undermined, and/or damaged CL&P's Electrical Facilities. . . .” Doc. 1 at ¶ 63(F). By contrast, the proposed amendment alleges that orthline was negligent because it “failed to notify CL&P that it made contact with, undermined, damaged and/or suspected it had damaged CL&P's Electrical Facilities. . . in violation of Conn. Gen. Stat. 16-355 . . . .” Doc. 33-1 at ¶ 63(F) ().
Section 16-355 of the Connecticut General Statutes, entitled “Procedure when contact is made with or damage is suspected or done to underground facilities” states:
When any contact is made with or any damage is suspected or done to any underground facility of a public utility, the person, public agency or public utility responsible for the operations causing the contact, suspected damage or damage shall immediately notify the public utility whose facilities have been affected, which shall dispatch its own personnel as soon as reasonably possible to inspect the underground facility and, if necessary, effect temporary or permanent repairs.
The Parties' Joint Proposed Planning Memorandum, which the Court approved as modified on August 3, 2020, does not set a deadline for amending the Complaint. Instead, it notes that “Plaintiffs should be allowed to file any motion to amend the pleadings in accordance with the requirements of Rule 15 of the Federal Rules of Civil Procedure and Rule 7(f) of the Local Rules of the United States District Court for the District of Connecticut.”[1] Doc. 21 at 5. Pursuant to Local Rule 7(f)(1), Plaintiffs included a statement that Defendant USIC consents to the motion and Defendant Northline intends to object. Doc. 33 at 1. In line with Local Rule 7(f)(2), Plaintiffs provided both a redlined version and a clean version of their proposed amended pleading. See Doc. 33-1; Doc. 33-2.
Rule 15(a) of the Federal Rules of Civil Procedure governs the pretrial amendment of pleadings. It directs the Court to “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Whether to grant leave to amend ultimately lies within the court's discretion, taking into account factors set forth by the United States Supreme Court in Foman v. Davis, 371 U.S. 178, 182 (1962).” Abrams v. Waters, No. 3:17-CV-1659 (CSH), 2019 WL 6999959, at *2 (D. Conn. Dec. 21, 2019). In Foman, the Supreme Court elaborated on the liberal mandate of Rule 15(a):
In the absence of any apparent or declared reason-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 by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be ‘freely given.'
371 U.S. at 182. It is “rare that such leave should be denied . . . especially when there has been no prior amendment.” Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial, and the opposing party likewise bears the burden of establishing that an amendment would be futile. See, e.g., Hoffman v. City Coll. of New York, No. 20 CIV. 1729 (PGG), 2021 WL 1226498, at *4 (S.D.N.Y. Mar. 30, 2021) (citations omitted); Prompt Nursing Emp. Agency LLC v. Valdez, 222 F.Supp.3d 194, 200 (E.D.N.Y. 2016) (citations omitted).
Plaintiffs claim that they “simply seek to allege with greater specificity that Northline negligently violated the standards of Conn. Gen. Stat. § 16-355.” Doc. 33-3 at 3. They argue that the “amendment merely provides notice to Northline of the statute Plaintiffs claim [Northline] violated based...
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