United States District Court, E.D. Louisiana
CARLO CAROLLO, JR., ET AL.
ACE AMERICAN INSURANCE COMPANY, ET AL.
WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
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.
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).
Standard of Review
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).
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