Geeta Hosp. Inc. v. Dependable Quality Constr., LLC
| Decision Date | 23 April 2021 |
| Docket Number | Case No. 2:20-cv-5276 |
| Parties | GEETA HOSPITALITY INC., Plaintiff, v. DEPENDABLE QUALITY CONSTRUCTION, LLC, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This action arises from a botched renovation project for the Hampton Inn in Marysville, Ohio. Plaintiff Geeta Hospitality Inc. brought suit against five defendants. (ECF No. 2). In response to the Complaint, one of the defendants, Remco Insurance Services Inc., filed a Motion to Dismiss for Lack of Personal Jurisdiction. (ECF No. 16). Remco's Motion to Dismiss is fully briefed. (ECF Nos. 21, 25). Remco's Motion to Dismiss caused Plaintiff to file an Amended Complaint. (ECF No. 20). In response to the Amended Complaint, Remco filed a Motion to Strike the Amended Complaint. (ECF No. 24). Remco's Motion to Strike is also fully briefed. (ECF Nos. 26, 27). But again, Remco's filing led the Plaintiff to make yet another filing of its own - Plaintiff then filed a Motion for Leave to File an Amended Complaint. (ECF No. 26). Plaintiff's Motion for Leave is also fully briefed. (ECF Nos. 30, 31). To determine the operative pleading, the Court will address the Motion to Strike and the Motion for Leave before turning to the Motion to Dismiss.
In partial response to Remco's Motion to Dismiss, on December 8, 2020, Plaintiff Geeta Hospitality filed its First Amended Complaint.1 (ECF No. 20). Remco promptly moved to Strike the First Amended Complaint, arguing that Plaintiff failed to comply with Rule 15 of the Federal Rules of Civil Procedure. (ECF No. 24). In response to the Motion to Strike, Plaintiff effectively concedes that the First Amended Complaint was not timely filed in accordance with Rule 15. (ECF No. 26, PAGEID 393).
The Court has reviewed the briefing and the Amended Complaint. Remco's Motion to Strike is GRANTED. The Clerk is directed to strike the First Amended Complaint filed on December 8, 2020. (ECF No. 20).
In partial response to Remco's Motion to Strike, Plaintiff also filed a Motion for Leave to File an Amended Complaint. (ECF No. 26). Plaintiff's proposed Second Amended Complaint is different than the First Amended Complaint it filed on December 8, 2020. (Id.). According to Plaintiff, the Second Amended Complaint contains additional claims against Defendant Remco and several other defendants for intentional misrepresentation and civil conspiracy. (Id., PAGEID 394).
Considering Plaintiff's Motion for Leave requires that the Court apply both Rules 15 and 16 of the Federal Rules of Civil Procedure. Starting with the former,pursuant to Fed. R. Civ. P. 15(a)(2), Rule 15(a) embodies "a liberal policy of permitting amendments to ensure the determinations of claims on their merits." Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987) (citation omitted). In deciding a party's motion for leave to amend, the Court of Appeals for the Sixth Circuit has instructed that district courts must consider several elements, including "[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment . . . ." Coe v. Bell, 161 F.3d 320, 341-42 (6th Cir. 1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). In the absence of any of these findings, leave should be "freely given." Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962). With that said, determination of whether justice requires the amendment is entrusted to the sound discretion of a district court. Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (citations omitted).
With regard to Rule 16, "once a scheduling order deadline passes, a party must demonstrate good cause under Federal Rule of Civil Procedure Rule 16(b) for failure to adhere to the deadline." Winter Enters., LLC v. W. Bend Mut. Ins. Co., No. 1:17-cv-360, 2019 U.S. Dist. LEXIS 125841, at *6 (S.D. Ohio July 29, 2019) (Black, J.) (citations omitted); see also Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003) (). "Theprimary measure of Rule 16's 'good cause' standard is the moving party's diligence in attempting to meet the case management order's requirements." Inge v. Rock Fin. Corp. 281 F.3d 613 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001)). Courts also consider possible prejudice to the opposing party. Id. (citation omitted).
The case schedule here established December 18, 2020 as the deadline for filing motions to amend. (ECF No. 15). Plaintiff's Motion to Amend was filed nearly a month after that deadline on January 12, 2021. (ECF No. 26). Accordingly, Plaintiff must demonstrate good cause for its failure to file its Motion by the deadline. However, in its Motion and Reply, Plaintiff makes no effort to demonstrate good cause for its delay in filing—it does not even acknowledge that its filing is untimely. Nor does Plaintiff explain why it could not have timely filed its Motion for Leave. Plaintiff's continually moving target of various complaints with various claims is prejudicial to Remco.
Because Plaintiff has not put forth any evidence or argument in support of its diligence in attempting to comply with the case schedule, and because considering the motion would be prejudicial to Remco, Plaintiff has failed to demonstrate good cause for its Motion for Leave. In re Nat'l Prescription Opiate Litig., 956 F.3d 838, 843 (6th Cir. 2020) (). Plaintiff's Motion for Leave to Amend the Complaint is DENIED.
Now that the Court has determined that Plaintiff has not amended its Complaint, the original Complaint filed on October 8, 2020 (ECF No. 2) is the operative pleading. The Court turns to Remco's Motion to Dismiss (ECF No. 16), which was filed pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure and seeks dismissal of Remco for lack of personal jurisdiction. (Id.).
The following allegations, taken from the Complaint, are considered as true. See Gavitt v. Born, 835 F.3d 623, 639-40 (6th Cir. 2016).
Plaintiff Geeta Hospitality is the owner and operator of the Hampton Inn Marysville. (ECF No. 2, ¶ 1). The defendants are Remco, Dependable Quality Construction, LLC (hereinafter "Contractor"), Valeriy and Liliya Oleynik (the sole members and owners of the Contractor), and AmGuard Insurance Company.2 (Id., ¶¶ 2-7). Remco's principal place of business is in Pennsylvania. (Id., ¶ 6). The Contractor's principal place of business is in South Carolina, which is also where the Oleyniks reside. (Id., ¶¶ 3, 4). AmGuard's principal place of business is in Pennsylvania. (Id., ¶ 7).
In May 2018, Plaintiff entered into a Renovation Agreement with Contractor to, among other things, replace the existing metal roof with a new EPDM rubber roof (the "Agreement"). (Id., ¶¶ 8-9). The Agreement required Contractor to be"responsible at all times for safeguarding and securing the Premises against accidents or injury" and, as a precondition, the Contractor was required to obtain a commercial general liability ("CGL") policy naming Plaintiff as an additional insured or a certificate holder. (Id., ¶¶ 10, 11).
Remco assisted the Oleyniks and Contractor in obtaining the CGL Policy from AmGuard Insurance Company and, as an agent for AmGuard, it prepared and issued the Certificate of Liability Insurance. (Id., ¶¶ 7, 13). Pursuant to the Agreement, Contractor provided Plaintiff with a Certificate of Liability Insurance identifying Plaintiff as a Certificate Holder or additional insured under the Contractor's CGL policy. (Id., ¶ 12). Plaintiff states that it would not have entered into the Agreement but for the Certificate of Liability identifying it as a "Certificate Holder" under the CGL policy. (Id., ¶ 14).
Construction began in September of 2018. (Id., ¶ 15). Unfortunately, soon after the existing roof was removed, a rainstorm occurred. (Id., ¶ 16). Contractor failed to cover and protect the building from the storm, resulting in " significant water intrusion damage to the interior of the hotel, including but not limited to damage to the ceilings, walls, carpet, furniture and other interior finishes." (Id.). Plaintiff paid over $500,000 to remediate the resulting water damage, to repair the building, and to replace damaged interior furniture and finishes. (Id., ¶ 17). Plaintiff submitted a Notice of Claim/Proof of Loss to AmGuard for the damage; AmGuard denied the claim. (Id., ¶¶ 18, 22).
Plaintiff brought the following claims: (1) breach of contract against Contractor; (2) fraud against Contractor and the Oleyniks; (3) breach of contract against AmGuard; (4) bad faith by AmGuard; (5) professional negligence against Remco; (6) negligent misrepresentation against Remco; and, (7) declaratory judgment against all defendants.
Plaintiff has the burden of proving personal jurisdiction. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). "[I]n the face of a properly supported motion for dismissal, the plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction." Id. (citation omitted). If the Court rules on a Federal Rule of Civil Procedure 12(b)(2) motion prior to trial, "it has the discretion to adopt any of the following courses of action: (1) determine the motions based on affidavits alone; (2) permit discovery, which would aid in resolution of...
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