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.

Emery v. PJH Companies, Inc.

United States District Court, D. South Dakota, Southern Division

July 10, 2019

WILSON D. EMERY, as Personal Representative for the Estate of Roger Louis Emery, and DARIUS E. EMERY, as Personal Representative for the Estate of Selena Loretta-Lynn Medicine Eagle, Plaintiffs,
v.
PJH COMPANIES, INC., JAMES G. RICKERT and PETER HAGEN, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO AMEND

          Lawrence L. Piersol United States District Judge

         There are several motions currently pending before the Court that have been briefed by the parties in this case. For the following reasons, Defendants' Motion to Amend Answer to Assert a Third-Party Complaint and Counter-Claim and Motion to Modify Scheduling Order, Docs. 27, 30, are granted and Plaintiffs' Motion to Substitute Proposed Amended Complaint, Doc. 43, is granted in part and denied in part. The Court will address Defendant, PJH Companies, Inc.'s Motion for Summary Judgment, Doc. 39, in a separate memorandum opinion and order.

         FACTS

         This case arises from a motor vehicle accident that resulted in the deaths of Roger Emery and his four-year-old granddaughter, Selena Medicine Eagle. Doc. 1. On October 3, 2017, Roger Emery and Selena Medicine Eagle were attempting to cross an intersection in Mission, South Dakota, from Marge Lane while heading south on the western side of the intersection. Doc. 1, ¶¶ 7, 11, 13, 14. Both Roger Emery and Selena Medicine Eagle were struck and killed by a 2013 GMC 3500 pickup driven by defendant James G. Rickert ("Rickert") pulling a gooseneck flatbed trailer transporting a skid steer. Doc. 1, ¶¶ 7, 16, 17. The intersection was under construction at the time Of the accident. Doc. 1, ¶ 12.

         On May 25, 2018, plaintiff Wilson D. Emery, as Personal Representative for the Estate of Roger Louis Emery, and plaintiff Darius E. Emery, as Personal Representative for the Estate of Selena Loretta-Lynn Medicine Eagle, (collectively, "Plaintiffs") filed a Complaint against Defendants PJH Companies, Inc., Rickert, and Peter Hagen ("Hagen"), the owner of PJH Companies, Inc., (collectively, "Defendants"). In their initial complaint, Plaintiffs alleged claims of wrongful death and survival against Defendants. Doc. 1. It is alleged that defendant Rickert failed to come to a complete stop, failed to yield, and/or failed to keep a proper lookout before proceeding into the subject intersection. Doc. 1, ¶ 15. It is further alleged that Rickert was an employee of PJH Companies, Inc. and was engaged in the course of employment at the time of the accident. Doc. 1, ¶ 10.

         Pending before the Court are Defendants' Motions to Amend Answer to Assert a Third-Party Complaint and Counter-Claim and Motion to Modify Scheduling Order, Doc. 27, 30; Plaintiffs' Motion to Amend/Correct Complaint, Doc. 32; Plaintiffs' Motion to Substitute Proposed Amended Complaint, Dpc. 43; and Defendant, PJH Companies, Inc.'s Motion for Summary Judgment, Doc. 39. In this Order, the Court will address Defendants' Motions to Amend Answer to Assert a Third- Party Complaint and Counter-Claim and Motion to Modify Scheduling Order- Plaintiffs' Motion to Amend Complaint; and Plaintiffs' Motion to Substitute Proposed Amended Complaint. The Court will address Defendant, PJH Companies, Inc.'s Motion for Summary Judgment in a separate memorandum opinion and order.

         LEGAL STANDARD

         "The Federal Rules of Civil Procedure liberally permit amendments to pleadings." Dennis v. Dillard Dep't Stores, Inc., 207 F.3d 523, 525 (8th Cir. 2000); see also Fed. R. Civ, P. 15(a)(2) ("The court should freely give leave when justice so requires."). A timely motion to amend pleadings should normally be granted under Rule 15(a) absent good reasons to the contrary. Popp Telcom v. American Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000). A district court appropriately denies the motion to amend if "there are compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of the amendment." Moses.Com Securities, Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005) (internal quotation marks and citation omitted).

         I. Motion to Amend Answer to Assert a Third-Party Complaint and Counterclaim and Motion to Modify Scheduling Order

         On March 29, 2019, Rickert filed a Motion to Amend Answer to Assert a Third-Party Complaint and Counter-Claim and Motion to Modify Scheduling Order. Doc. 27. Defendants PJH Companies, Inc. and Hagen have joined Rickert's Motion to Amend Answer to Assert a Third-Party Complaint and Counter-Claim and Motion to Modify Scheduling Order. Doc. 30. In support of their motions, Defendants state that during the course of discovery, they discovered that the subject intersection did not have any signage to instruct pedestrians to cross on the east or the west side of the intersection when walking south on Marge Lane, as were the decedents Roger Emery and Selena Medicine Eagle, and further, that there were no pavement markings indicating a crosswalk on either the east or west side of the intersection. Bogard Aff., Ex. C. Defendants state that there was only a sign facing to east/west traffic that stated, "Pedestrian Crosswalk." Bogard Aff., Ex. C. In addition, Defendants discovered that Anderson Contractors was the general contractor for the road project at the subject intersection and that Traffic Solutions was in charge of putting together the plan for traffic control for the project. Bogard Aff, Ex. D.

         As a result of these newly discovered facts, Defendants state that Anderson Contractors and Traffic Solutions should be parties to the action. Doc. 28 at 3. In Defendants' proposed Third-Party Complaint, they alleged that Anderson Contractors, Inc. had a duty to act as a reasonable and prudent contractor in providing for the safety of the public during the construction project and that their breach of that duty resulted in the deaths of Roger Emery and Selena Medicine Eagle. Doc. 29-9 (Rickert); Doc. 31-1 (PJH Companies, Inc. and Hagen). Defendants allege further that if recovery is allowed against any or all of the defendants for the alleged negligence of Traffic Solutions and Anderson Contractors, Inc., that they are entitled to indemnification or, alternatively, contribution. Doc. 29-9; Doc. 31-1.

         In addition, Defendants have moved to assert a counterclaim against the estate of Roger Emery for contribution and for contributory negligence. Doc. 29-10, 31-2. In support of their motion, Defendants allege that Roger Emery was not using reasonable care in leading Selena Medicine Eagle across the intersection because he was carrying her while walking across the subject intersection on the western side when the eastern side of the intersection had been designated as the area for pedestrians to cross. Doc. 29-10, 31-2.

         Plaintiffs do not oppose Defendants' motions to amend their answer to add a third-party complaint against Anderson Contractors and Traffic Solutions and to assert a counterclaim against the Estate of Roger Emery. Docs. 35, 36. Plaintiffs furthermore do not oppose Defendants' motion to set new deadlines once Traffic Solutions, Inc. and Anderson Contractors, Inc. have been added as parties so long as all deadlines, including the Plaintiffs' expert designation deadline, are reset since the Plaintiffs' expert designations may be affected by the amendments and/or addition of new parties. Docs. 35, 36.

         II. Plaintiffs Motion to Substitute Proposed Amended Complaint

         On April 1, 2019, Plaintiffs moved to amend their complaint within the time for amendment detailed by the Court in its Second Amended Rule 16 Scheduling Order ("Amended Complaint"). Docs. 26, 32. Therein, Plaintiffs moved to assert two new claims against Defendants. Docs. 32. Specifically, Plaintiffs moved to add a claim against defendants PJH Companies, Inc. and Hagen for negligent hiring, supervision, and retention, and for willful and wanton hiring, supervision, and retention. Doc. 32-1. Plaintiffs also added a prayer for punitive damages. Plaintiffs filed a brief in support of their motion to amend complaint stating the factual basis for their proposed additional claims. Doc. 33. / On April 22, 2019, Defendants PJH Companies, Inc. and Hagen filed their memorandum opposing Plaintiffs' motion to amend complaint. Doc. 28. Therein, they argue that the Court should deny Plaintiffs the right to amend their complaint to add a prayer for punitive damages on the basis of futility because Plaintiffs have "failed to state a claim for punitive damages upon which relief can be granted." Doc. 38 at 5. Specifically, Defendants state that there is no legal basis for a claim for willful and wanton hiring, supervision, and retention[1] and that Plaintiffs have failed to allege any facts to support that PJH Companies, Inc. and Hagen acted with the actual or presumed malice that they state is necessary to recover punitive damages under South Dakota law.

         "Denial of a motion for leave to amend on the basis of futility 'means the district court has reached the legal conclusion that the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.'" Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010) (quoting Cornelia I. Crowel GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008)). A complaint states a claim upon which relief may be granted if it contains sufficient factual matter, accepted at true to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To state a claim for relief, a complaint must plead more than "legal conclusions" and "[t]hreadbare recitals of a cause of action's elements, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A plaintiff must demonstrate a plausible claim for relief, that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 675. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief" Id. at 679 (citing Fed.R.Civ.P. 8(a)(2)). Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted).

         A. Willful and Wanton Hiring, Supervision, and Retention & Punitive Damages

         To be clear, "punitive damages are a form of relief and not a 'claim' that is subject to a Rule 12(b)(6) motion to dismiss." See Benedetto v. Delta Air Lines, Inc., 917 F.Supp.2d 976, 984 (D.S.D. 2013) (citing Sec. Nat'l Bank of Sioux City v. Abbott Labs., Civ. No. 11-4017, 2012 WL 327 863, at *21 (N.D. Iowa Feb. 1, 2012) ("[P]unitive damages are not a cause of action, and as such, so long as there are surviving claims, they are not subject to a motion to dismiss.")). Therefore, the Court must examine whether Plaintiffs have stated an underlying claim for relief to support their prayer for punitive damages. See Berry v. Time Ins. Co., 798 F.Supp.2d 1015, 1022 (D.S.D. 2011). In other words, the Court must examine whether the facts in Plaintiffs' proposed Revised Amended Complaint, if accepted as true, state a claim for willful and wanton hiring, supervision, and retention that is plausible on its face.

         On May 1, 2019, Plaintiffs moved to substitute a Revised Amended Complaint in place of the proposed Amended Complaint. Doc. 43. In their proposed Revised Amended Complaint, Plaintiffs include various factual allegations in support of Counts 3 and 4 alleging negligent and willful and wanton, hiring, supervision, and retention. Doc. 43. Specifically, Plaintiffs allege that defendants PJH Companies, Inc. and/or Hagen:

(i) [H]ired Defendant Rickert to operate a commercial motor vehicle, and subsequently allowed him to operate a commercial motor vehicle, despite knowing that he did not possess a CDL as required by law;
(ii) [H]ired Defendant Rickert to operate a commercial motor vehicle, and subsequently allowed him to operate a commercial motor vehicle, without requiring him to complete any application for employment as required by law;
(iii) [H]ired Defendant Rickert to operate a commercial motor vehicle, and subsequently allowed him to operate a commercial motor vehicle, without conducting an independent investigation of his safety performance history with Department of Transportation regulated ...

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.