United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY, United States District Judge
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.
before the Court is ECC's  Motion to Amend its
Answer to Assert a Counterclaim against Fourth Party
Plaintiff Strittmatter and Cross-Claim against Defendant
JMAV, and JMAV's  Motion for Leave to File
an Amended Third Party Complaint against Strittmatter Metro,
LLC. Upon consideration of the parties' submissions,
applicable authorities, and the record as a whole, the Court
shall GRANT both motions for the reasons stated herein.
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. . 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. . 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. . 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.
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. . 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. ; Mem. Op. (May 23, 2016), ECF
No. . 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. ; Mem. Op. (Dec. 14, 2016), ECF No. .
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. ; Amend. Compl., ECF No.
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
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).
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
ECC's Motion to Amend its Answer to Assert a
Counterclaim against Fourth Party Plaintiff Strittmatter and
Cross-Claim against Defendant JMAV
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.
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 ...