United States District Court, E.D. Kentucky, Central Division, Lexington
RITA FAZEKAS, individually, and RITA FAZEKAS, by and through her attorney in fact, Alan Campoli, Plaintiffs,
MERCY AMBULANCE OF EVANSVILLE, INC., doing business as AMR, Defendant.
MEMORANDUM OPINION AND ORDER
M. HOOD, SENIOR U.S. DISTRICT JUDGE
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].
FACTUAL AND PROCEDURAL BACKGROUND
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]).
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].
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)).
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)).
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).'”
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.
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].
following reasons, when all the factual claims are accepted
as true, Fazekas's proposed First Amended Complaint [DE
11-1] fails to state ...