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Carollo v. Ace American Insurance Co.

United States District Court, E.D. Louisiana

October 18, 2019

CARLO CAROLLO, JR., ET AL.
v.
ACE AMERICAN INSURANCE COMPANY, ET AL.

         SECTION: “D” (4)

          ORDER

          KAREN WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE

         Before the Court is Plaintiffs' Motion for Leave to File Second Supplemental and Amended Complaint (R. Doc. 61) filed by Plaintiffs Carlo Carollo, Jr., and Frank Carollo, individually and on behalf of the Estate of Carlo Carollo Sr., and the Estate of Angelina Carollo, seeking an Order from this Court granting them leave to file a Second Supplemental and Amended Complaint. This motion is opposed. R. Doc. 66. The motion was set for submission on August 14, 2019, and was heard on the briefs.

         I. Background

         This action was initially filed in the 34th Judicial District Court for the Parish of St. Bernard on November 7, 2018, as a personal injury action in negligence under the theories of both individual and respondeat superior liability. R. Doc. 1-1. On December 11, 2018, the case was removed to the U.S. District Court for the Eastern District of Louisiana invoking the Court's diversity jurisdiction. R. Doc. 1.

         Plaintiffs Carlo Carollo, Jr. and Frank Carollo, children of the deceased Carlo Carollo Sr., and Angelina Carollo, allege that on or about November 9, 2017, at approximately 6:33 p.m., as Carlo Carollo Sr., attempted to make a lawful left turn onto Louisiana Highway 46 (“LA 46”) from Volpe Drive his vehicle was struck by Defendant Kevin Owens (“Driver Owens”), operator of a 2013 Freightliner Cascadia traveling westbound on LA 46. R. Doc. 1-1, p. 2-3. Plaintiffs Carlo Carollo Sr. and Angelina Carollo suffered fatal injuries as a result of this accident. Id.

         Plaintiffs and the decedents were familiar with the intersection and general locale as they, and their parents, lived on Volpe Drive for decades and Frank Carollo continues to live on the Volpe Drive. R. Doc. 66, p. 6. Defendants maintain the accident was caused due to the sole fault of passenger vehicle driver Plaintiff Carlo Carollo Sr., who failed to stop at a traffic stop sign before turning onto the highway. See, e.g., R. Doc. 39, p. 14. Plaintiffs refute this claim and maintain Driver Owens had the last clear chance to avoid the collision. See R. Doc. 61-1, p. 2. Liability remains disputed.

         One year to the day of the accident, Plaintiffs filed the suit in Louisiana State Court in St. Bernard Parish. After the case was removed, a scheduling conference took place on January 31, 2019, that imposed an amended pleading deadline of March 4, 2019. R. Doc. 11. On March 4, 2019, Plaintiffs filed their First Supplemental and Amended Petition. R. Doc. 15. On June 25, 2019, Plaintiffs also filed the subject motion seeking leave to add the State of Louisiana Department of Transportation and Development (“DOTD”) as a party defendant in their Second Supplemental and Amended Petition, which the Court notes, coincidentally happened the same day Plaintiffs moved to enroll additional counsel of record Lawrence Blake Jones and Joshua L. Rubenstein. R. Docs. 60 & 61.

         As to the instant motion, Plaintiffs aver that, despite the fact that discovery has been ongoing for over eight (8) months in this case, their efforts to proceed diligently with discovery in this matter were hampered due to unforeseen events such as an injury to their counsel, Roberta Burns, who suffered a hip and shoulder fracture on January 19, 2019. R. Doc. 61-1, p. 2. Plaintiffs contend that her medical condition required surgery and months of recuperation and physical therapy. Id. They, however, do not indicate how much time Burns' recovery actually took. Plaintiffs further contend that it was only later when discovery resumed, that their forensic experts uncovered information suggesting that the DOTD may bear some liability in connection with the subject accident, namely: 1) the curvature in the sightline and stopping sight distance were inadequate for the posted speed, 2) the sightline for entry of vehicle on to highway LA 46 was inadequate, 3) the posted speed was excessive, 4) the signage posted along LA 46 westbound was inadequate, and 5) the DOTD allowed a sightline obstruction in allowing the construction of a private parking close to the shoulder and entrance of the highway. R. Doc. 61-1, p. 2-3. As such, Plaintiffs submit that they should be allowed to add DOTD as a party defendant. R. Doc. 61-1, p. 2.

         Defendants Kevin Owens, Langer Transport Corporation, and ACE American Insurance Company contend that the proposed amendment is a fraudulent attempt by Plaintiffs to destroy this Court's diversity jurisdiction because 1) Burns, although injured two weeks earlier, participated in the telephonic scheduling conference; 2) the police investigation and report indicated driver error, and not dangerous or unreasonably unsafe road conditions, caused the accident; and 3) two months before Plaintiffs filed the instant lawsuit, Defendants provided to the Plaintiffs their accident reconstruction report which contained, among other things, the posted speed limits (mph), the road curvature, sightlines, diagrams, and the tractor trailer truck's hard braking events (See R. Doc. 39-1). R. Doc. 66.

         Defendants further contend that Plaintiffs have had more than ample time to investigate, assess facts, and raise claims against the DOTD where more than twenty-two (22) months have elapsed since the accident occurred and one year has since passed from when Defendants produced to Plaintiffs a copy of their expert's accident reconstruction report. R. Doc. 66, p. 6. The Defendants also contend that the motion should be denied because Plaintiffs failed to address the good cause requirement of Federal Rule of Civil Procedure 16(b). R. Doc. 66, p. 8. Specifically, Defendants state the Court should not find good cause and the motion should be denied because there are four (4) additional lawyers enrolled in the case who could have developed their theory while Ms. Burns recuperated. Additionally, the Defendants contend the motion should be denied because 1) Plaintiffs failed to provide a valid explanation for the importance of the amendment, 2) Defendants would be prejudiced, and 3) the proposed amendment does not comport with the factors set forth in Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987).

         II. Standard of Review

         Generally, Federal Rule of Civil Procedure (“Rule”) 15(a) governs the amendment of pleadings before trial. Rule 15(a) allows a party to amend its pleadings “only with the other party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Moreover, the Rule urges that the Court “should freely give leave when justice so requires.” Id. “Such leave is not automatic, however, and is at the discretion of the district court.” Muttathottil v. Mansfield, 381 Fed.Appx. 454, 457 (5th Cir. 2010).

         “[T]he Fifth Circuit [has] clarified that when, as here, a scheduling order has been issued by the district court, Rule 16(b) governs amendment of pleadings.” Royal Ins. Co. of America v. Schubert Marine Sales, 02-0916, 2003 WL 21664701, at *2 (E.D. La. July 11, 2003 (citing S & W Enterprises, L.L.C. v. Southtrust Bank of Ala., 315 F.3d 533, 535-36 (5th Cir. 2003)). Rule 16(b) limits changes in the deadlines set by a scheduling order “only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). To determine if good cause exists as to untimely motions to amend pleadings, the Court should consider: “(1) the movant's explanation for its failure to timely move for leave to amend; (2) the importance of the amendment; (3) the potential ...


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