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Parker v. John Moriarty & Associates

United States District Court, District of Columbia

April 6, 2017

JOHNNIE PARKER, et al., Plaintiffs,
v.
JOHN MORIARTY & ASSOCIATES, Defendant/Third Party Plaintiff,
v.
STRITTMATTER METRO, LLC, Third Party Defendant/Fourth Party Plaintiff,
v.
ENVIRONMENTAL CONSULTANTS AND CONTRACTORS, INC., Defendant/Fourth Party Defendant.

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY, United States District Judge

         On September 16, 2015, Plaintiffs Johnnie Parker and Starrelette Gail Jones-Parker brought this action against Defendant/Third Party Plaintiff John Moriarty & Associates of Virginia LLC ("JMAV"). Plaintiffs alleged that JMAV, as general contractor of a construction project, was negligent resulting in serious injury to Plaintiff Johnnie Parker, a construction worker on the project site. Defendant JMAV subsequently filed a Third Party Complaint against Third Party Defendant Strittmatter Metro, LLC ("Strittmatter"), and Strittmatter, in turn, filed a Fourth Party Complaint against Fourth Party Defendant Environmental Consultants and Contractors, Inc. ("ECC"). Plaintiffs then amended their Complaint to add ECC as a Defendant.

         Presently before the Court is ECC's [84] Motion to Amend its Answer to Assert a Counterclaim against Fourth Party Plaintiff Strittmatter and Cross-Claim against Defendant JMAV, and JMAV's [85] Motion for Leave to File an Amended Third Party Complaint against Strittmatter Metro, LLC. Upon consideration of the parties' submissions, [1] the applicable authorities, and the record as a whole, the Court shall GRANT both motions for the reasons stated herein.

         I. BACKGROUND

         This case arises out of the construction work completed on the Apollo H Street project ("the project"), located at 600 and 624 H Streets, NE, Washington, D.C. Amend. Compl. ¶ 13, ECF No. [87]. Defendant/Fourth Party Defendant ECC contracted with the Owner of the project to provide professional environmental services to the project. 4th Party Compl. ¶ 5, ECF No. [38]. Defendant/Third Party Plaintiff JMAV was the general contractor on the project. Amend. Compl. ¶ 3. Third Party Defendant/Fourth Party Plaintiff Strittmatter was hired by JMAV as a subcontractor to perform excavation and backfill work on the project. 3d Party Compl. ¶¶ 7, 8, ECF No. [10]. Plaintiff Johnnie Parker worked on the project as an employee of Strittmatter and alleges that on December 18, 2014, he was instructed to excavate between 600 and 624 H Street, NE, as part of his regular duties of employment. Amend. Compl. ¶¶ 12, 22. Mr. Parker further alleges that he was injured while performing this work because he was exposed to toxic chemicals from leaking underground storage tanks. Id. ¶¶ 22-25, 31.

         On September 16, 2015, Mr. Parker and his wife, Plaintiff Starrelette Gail Jones-Parker, filed the underlying Complaint in the instant action with a claim of negligence by and against JMAV, along with a claim for punitive damages based on JMAV's alleged willful, reckless, and wanton conduct. See generally Compl., ECF No. [1]. On November 6, 2015, JMAV filed a Third Party Complaint against Strittmatter alleging claims of contractual indemnification and breach of contract. See generally 3d Party Compl. JMAV moved the Court for summary judgment on its contractual indemnification claim against Strittmatter based on Subcontract Agreement which the Court denied by written Order and Memorandum Opinion on May 23, 2016. See Order (May 23, 2016), ECF No. [42]; Mem. Op. (May 23, 2016), ECF No. [43]. On May 12, 2016, Strittmatter filed a Fourth Party Complaint against ECC alleging claims of negligence, indemnity and/or contribution as a joint tortfeasor, breach of contract to a third party beneficiary, and negligent misrepresentation. See generally 4th Party Compl. ECC moved to dismiss the Fourth Party Complaint on the grounds that Strittmatter failed to state claims in contract and in tort upon which relief could be granted. The Court denied ECC's motion by written Order and Memorandum Opinion on December 14, 2016. See Order (Dec. 14, 2016), ECF No. [64]; Mem. Op. (Dec. 14, 2016), ECF No. [65]. On January 17, 2017, Plaintiffs filed a motion seeking leave to amend their complaint to assert a negligence claim against ECC, which the Court granted by written Memorandum Opinion and Order on February 16, 2017. See Mem. Op. & Order (Feb. 16, 2017), ECF No. [86]; Amend. Compl., ECF No. [87].

         ECC now seeks leave from the Court to amend its Answer to assert a counterclaims against Strittmatter and cross-claims against JMAV. Specifically, ECC seeks to add claims against Strittmatter and JMAV based on negligence (Count 1), negligent misrepresentation (Count 2), and indemnity and contribution (Count 3). ECC's Mot., Ex. 1, ECF No. [84-1] ("ECC's Proposed Answer"). JMAV seeks leave to amend its Answer to add a Common Law Indemnity claim (Count 3). JMAV's Mot., Ex. 1, ECF No. [85-2] ("JMAV's Proposed Amend. 3d Party Compl."). For the reasons described herein, the Court shall GRANT ECC's and JMAV's requests.

         II. LEGAL STANDARD

         Under the Federal Rules of Civil Procedure, a party may amend its pleadings once as a matter of course within twenty-one days after service or within twenty-one days after service of a responsive pleading. Fed.R.Civ.P. 15(a)(1). Where, as here, a party seeks to amend its pleadings outside that time period, it may do so only with the opposing party's written consent or the district court's leave. Fed.R.Civ.P. 15(a)(2). The decision whether to grant leave to amend a complaint is within the discretion of the district court, but leave should be freely given unless there is a good reason to the contrary. Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996).

         "When evaluating whether to grant leave to amend, the Court must consider (1) undue delay; (2) prejudice to the opposing party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff has previously amended the complaint." Howell v. Gray, 843 F.Supp.2d 49, 54 (D.D.C. 2012) (citing Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996)); see also Foman v. Davis, 371 U.S. 178, 182 (1962). With respect to an amendment causing undue delay, "[c]ourts generally consider the relation of the proposed amended complaint to the original complaint, favoring proposed complaints that do not 'radically alter the scope and nature of the case.'" Smith v. Cafe Asia, 598 F.Supp.2d 45, 48 (D.D.C. 2009) (citation omitted). With respect to an amendment being futile, "a district court may properly deny a motion to amend if the amended pleading would not survive a motion to dismiss." In re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010). Because leave to amend should be liberally granted, the party opposing amendment bears the burden of coming forward with a colorable basis for denying leave to amend. Abdullah v. Washington, 530 F.Supp.2d 112, 115 (D.D.C. 2008).

         III. DISCUSSION

         A. ECC's Motion to Amend its Answer to Assert a Counterclaim against Fourth Party Plaintiff Strittmatter and Cross-Claim against Defendant JMAV

         Defendant/Fourth Party Defendant ECC seeks leaves to amend its answer to add counterclaims against Third Party Defendant/Fourth Party Plaintiff Strittmatter and cross-claims against Defendant/Third Party Plaintiff JMAV based on negligence (Count 1), negligent misrepresentation (Count 2), and indemnity and contribution (Count 3). JMAV takes no position on the pending motion. JMAV's Resp. at 1. Strittmatter opposes the motion on the grounds that ECC cannot prevail on any of its three counterclaims against Strittmatter and, as such, the request to amend is futile. Strittmatter's Opp'n to ECC's Mot. at 2. For the reasons described herein, the Court shall grant ECC's request to amend its answer to add claims against both parties.

         Here, Strittmatter has not alleged undue delay, prejudice, or bad faith. ECC has not previously amended its answer. Strittmatter argues that ECC's claims are futile because ECC cannot bring a claim against Strittmatter based on a negligence theory related to Plaintiff Parker's alleged injuries. Specifically, Strittmatter contends that as Plaintiff Parker's employer, it is exclusively liable, if at all, pursuant to the ...


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