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.

Fazekas v. Mercy Ambulance of Evansville, Inc.

United States District Court, E.D. Kentucky, Central Division, Lexington

October 31, 2019

RITA FAZEKAS, individually, and RITA FAZEKAS, by and through her attorney in fact, Alan Campoli, Plaintiffs,
v.
MERCY AMBULANCE OF EVANSVILLE, INC., doing business as AMR, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOSEPH M. HOOD, SENIOR U.S. DISTRICT JUDGE

         Plaintiffs Rita Fazekas, Individually, and Rita Fazekas, by and through her attorney in fact, Alan Campoli (collectively “Fazekas”), move for leave to file a proposed First Amended Complaint [DE 11-1]. [DE 11]. Having considered the matter fully, and being otherwise sufficiently advised, the Court will deny Fazekas's Motion for Leave to File First Amended Complaint [DE 11].

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On or about December 4, 2017, Fazekas was being transported by ambulance by Jessica Denman and Logan Eckler, employees of AMR Mercy Ambulance of Evansville, Inc., doing business as AMR (“AMR”). [DE 12, at 1 (citing [DE 1-1, at 7; DE 11-1, at 2])]. While AMR's employees were transporting Fazekas, they dropped her, which caused bruising. Id. at 1-2 (citing [DE 1-1, at 7; DE 11-1, at 2-3]).

         On November 27, 2018, Fazekas filed the present action in Fayette Circuit Court alleging, “Defendants and/or the Subject Employees were negligent because they dropped Rita and/or because they failed to use an appropriate device or technique to transport Rita and/or because the Subject Employees were not hired, trained, supervised, or retained with reasonable care, and/or for other reasons including those described herein.” [DE 1-1, at 7-8]; see also [DE 13, at 1]. On March 8, 2019, this action was removed to this Court. [DE 1]. On August 5, 2019, Fazekas filed the present Motion for Leave to File First Amended Complaint [DE 11] asserting, “The First Amended Complaint maintains the counts and allegations against the same defendant-EMS Company from the original complaint, but accounts for the significant factual developments that have occurred since the original complaint was filed.” [DE 11, at 1]. Fazekas specifies that the proposed First Amended Complaint “clarifies the basis of both 1) the negligence claims asserted against the defendant-EMS company based on the vicarious liability of its employees, and 2) the negligent hiring, training, supervision, and retention claims asserted against the defendant-EMS company, based entirely on the discovery that has taken place to date.” Id. However, as will be discussed further herein, AMR contends, “Plaintiff's Motion should be denied because the proposed First Amended Complaint fails to state any additional claim(s) upon which relief may be granted against AMR, ” meaning “the proposed amendment would be futile . . . .” [DE 12, at 2-3].

         II. DISCUSSION

         Pursuant to Federal Rule of Civil Procedure 15(a)(2), when a motion for leave to amend, such as Fazekas's Motion [DE 11], is filed more than 21 days after responsive pleadings have been served, “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962). “The grant or denial of a motion to amend is within the sound discretion of the Court.” Birchwood Conservancy v. Webb, 302 F.R.D. 422, 424 (E.D. Ky. 2014) (citing Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987)).

         When ruling on a party's motion for leave to amend a pleading, the Court should consider the following factors:

(1) undue delay in filing the motion; (2) lack of notice to adverse parties; (3) whether the movant is acting in bad faith, or with a dilatory motive; (4) failure to cure deficiencies by previous amendments; (5) the possibility of undue prejudice to adverse parties; and (6) whether the amendment is futile.

Webb, 302 F.R.D. at 424 (citing Foman, 371 U.S. at 182); see also Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 591 (6th Cir. 1990)). “‘A court need not grant leave to amend . . . where amendment would be ‘futile.''” Hughes v. Red River Gorge Zipline, LLC, No. 5:17-CV-482-REW, 2018 WL 3199458, at *1 (E.D. Ky. June 29, 2018) (citing Miller v. Calhoun Cnty., 408 F.3d 803, 817 (6th Cir. 2005) (quoting Foman, 83 S.Ct. at 230)).

         An amendment to a pleading is futile only if the amended pleading could not withstand a motion to dismiss for failure to state a claim under Rule 12(b)(6). Demings v. Nationwide Life Ins. Co., 593 F.3d 486, 490 (6th Cir. 2010); Miller v. Calhoun Cty., 408 F.3d 803, 817 (6th Cir. 2005); Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010); Hughes, 2018 WL 3199458, at *1 (citing Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000)). Thus, the test “is whether the proposed amended pleading, with all the factual allegations accepted as true, states a claim for relief, not whether the claim is factually supportable or would be sufficient to withstand a motion for summary judgment.” Lacer v. Toyota of Bowling Green, No. 1:18-cv-013-GNS-HBB, 2018 WL 5815567, at *3 (W.D. Ky. Nov. 6, 2018) (internal citations and quotations omitted). “Evaluating a 12(b)(6) motion to dismiss requires the Court to ‘accept as true all factual allegations, but not legal conclusions or unwarranted factual inferences.'” Hughes, 2018 WL 3199458, at *1 (citing Theile v. Michigan, 891 F.3d 240, 243 (6th Cir. 2018)). “‘The plaintiff must present a facially plausible complaint asserting more than bare legal conclusions. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).'” Id.

         In the present case, there appears to be a disconnect between the Parties. In its Response [DE 12], AMR states, “AMR stipulated to liability on Plaintiff's claim of ordinary negligence related to the circumstances of the fall, leaving as the only disputed issue between the parties the nature and extent of Ms. Fazekas's injuries and the amount of any compensatory damages.” [DE 12, at 2]. AMR asserts it did not concede or stipulate to liability for either “negligence in relation to the hiring, training, supervision or retention of its employees” or “gross negligence, willful or wanton conduct or any other action that would support an award of punitive damages because the Plaintiff's original Complaint did not allege any such conduct and did not seek an award of punitive damages.” Id. at 2 n.1 (citing [DE 1-1]). AMR argues, “When it became apparent [through discovery] that Ms. Fazekas had suffered only minor bruising in the fall, Plaintiff moved to amend the Complaint to add new theories of relief and to seek an award of punitive damages in the amount of $500, 000.00.” Id. at 2. However, Fazekas tells a different story.

         In Fazekas's Reply [DE 13], she asserts, “Plaintiffs directed a FRCP 30(b)(6) deposition notice to Defendant requesting a corporate deponent to testify on issues relating to Plaintiff's already-pled negligent hiring, training, supervision, and retention claims.” [DE 13, at 1 (citing [DE 13-1])]. Fazekas's claim, “In response to the . . . deposition notice . . . counsel for Defendant indicated that Defendant would not be willing to produce a witness until Plaintiff sought leave to amend the Complaint to include claims for negligent hiring, training, supervision, and retention.” Id. at 2 (citing [DE 13-2]). Fazekas further asserts, “While Plaintiffs did not believe that seeking amendment was necessary, they nonetheless did so to avoid a discovery dispute, ” and the proposed First Amended Complaint [DE 11-1] provides “reasons that Defendant was negligent in its hiring, training, supervision, and retention of the employees that dropped Rita.” Id. Regarding AMR's previously mentioned assertion that it has stipulated to liability on Fazekas's negligence claim, Fazekas argues AMR repeatedly denied negligence in both its Answer [DE 2] and in response to Requests for Admission, and “[w]hile Defendant has indicated orally in deposition that Defendant would accept liability, neither its Answer nor discovery responses have been amended.” [DE 13, at 2].

         For the following reasons, when all the factual claims are accepted as true, Fazekas's proposed First Amended Complaint [DE 11-1] fails to state ...


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.