Opinion
Civil Action CV-22-100
11-14-2023
DEBORAH A. WESOJA, as Guardian and Conservator of BIANCA J. MACKAY, Plaintiff, v. CAPE SEAFOODS LLC; CHENDA DOEUR; RYDER TRUCK RENTAL, INC.; and SAMAKI SEAFOOD, INC., Defendants.
Plaintiffs-William Gallitto, Esq. Defendant cape Seafood LLC-Jeffrey Russell. Esq. Other Defendants-Laura Maher, Esq.
Plaintiffs-William Gallitto, Esq.
Defendant cape Seafood LLC-Jeffrey Russell. Esq.
Other Defendants-Laura Maher, Esq.
ORDER ON PENDING MOTIONS
Deboranr. Cashman Justice, Maine Superior Court.
Before the Court is Defendant Cape Seafood LLC's ("Cape") Motion to Dismiss or in the Alternative Motion to Strike, Plaintiffs Motion to Amend the Second Complaint, Plaintiffs Motion to Enlarge Scheduling Order Deadlines, and Defendant Chenda Doeur's ("Doeur") Motion to Stay. The Court held oral argument on these pending motions on October 4, 2023. For the reasons discussed below, Cape's Motion to Dismiss or in the Alternative Motion to Strike is DENIED; Plaintiffs Motion to Amend the Second Complaint is GRANTED; Plaintiffs Motion to Enlarge Scheduling Order Deadlines is GRANTED; and Doeur's Motion to Stay is DENIED.
I. Facts &Procedural History
The facts are recited from the Second Amended Complaint and are taken as true at this stage of the litigation for purposes of the Motion to Dismiss.
On August 25, 2021 Ms. Mackay was stopped in traffic on Route 1 South in Brunswick, Maine when she was rear-ended by Douer. When he rear-ended Ms. Mackay, Douer was operating a box truck owned and insured by Defendant Ryder Truck Rental, Inc. ("Ryder") and leased and insured by the Defendant Samaki Seafoods, Inc. ("Samaki"). Doeur was the operator and majority shareholder of Samaki. At the time, Doeur and Samaki were transporting live seafood for delivery to Cape at Cape's direction. Ms. Mackay sustained severe injuries from the crash, including brain trauma and swelling, several fractures, and a collapsed lung, and she was placed on life support and a medically induced coma as a result. Ms. Mackay's injuries include permanent physical and neurological disabilities.
Doeur was charged, by grand jury indictment, with three felonies and one misdemeanor for his conduct in the crash at issue in this case on January 6, 2022. Plaintiff commenced this case on March 16, 2022 by filing a complaint alleging negligence against Doeur, Ryder, and Samaki. On September 19, 2022 this Court issued an order granting protection to Doeur from giving any deposition testimony or responding to interrogatories for six months or the resolution of the related criminal matter, whichever came first.
On May 26, 2022 Plaintiff served a subpoena on Cape for "[c]opies of any and all contracts, orders, invoices and/or communications with Chenda Doeur or Samaki Seafood, Inc., regarding a delivery or order on August 25, 2021." Cape responded to the subpoena on June 21, 2022. In October 2022, Plaintiff requested from Cape any applicable insurance policies. Cape responded in December of 2022 by producing a summary of its liability limits and specifically stating that Doeur's leased box truck was not listed as an insured vehicle, but Cape did not produce the whole policy. In January 2023 Plaintiffs counsel emailed Cape's counsel as part of the effort to obtain a copy of Cape's insurance policy and stated counsel's opinion that documents previously produced by Cape suggested a contractual or even employment relationship between Cape and Doeur/Samaki.
On February 23, 2023, Plaintiff filed her Second Amended Complaint, which added Cape as a Defendant. After the expiration of six months from the September 19, 2022 order, Doeur's protection was ordered to stay in effect on April 24, 2023 until Doeur's motion to extend could be heard. The motion to extend was not heard before July 6, 2023, when Doeur plead guilty to Count 2 of the indictment for Aggravated Driving to Endanger (causing serious bodily injury). Doeur was sentenced for this offense on July 27, 2023, resolving the criminal matter.
On the afternoon of Doeur's sentencing and in the days following, Doeur's counsel informally produced thousands of pages of bills of lading and invoices between Samaki and Cape. Additionally, Doeur's counsel produced an affidavit detailing Cape's direction and control over Doeur and Samaki. Finally, Doeur's counsel produced a 2019 Guaranty Agreement in which Cape guaranteed Doeur's lease of the refrigerated box truck Doeur needed to complete daily lobster deliveries for Cape.
Three mediations have been held in this matter. Cape was invited to participate in the second mediation on January 18, 2023 but did not attend. Cape did attend mediation on May 8, 2023. Cape filed its Motion to Dismiss or in the Alternative Motion to Strike on June 7, 2023. Plaintiff filed her Motion to Amend the Second Complaint and Motion to Enlarge Scheduling Order Deadlines on August 4, 2023. Doeur and Samaki filed their Motion to Stay on August 14, 2023, which Cape joined on September 12, 2023.
II. Motion to Amend
Plaintiff filed this Motion to Amend the Second Complaint on August 4, 2023, seeking leave to file a Third Amended Complaint based on information received from Doeur's informal production of documents and Doeur's affidavit. Plaintiff argues that leave should be granted because she now has more facts supporting her negligence claim against Cape on a vicarious liability theory. Cape opposes Plaintiffs motion and argues that leave should be denied on the bases of undue delay and prejudice.
After the time to amend a pleading as of right expires, a party may amend their pleading "only by leave of court or by written consent of the adverse party." M.R. Civ. P. 15(a). Such "leave shall be freely granted when justice so requires." Id. When the moving party is not acting in bad faith or delay, the motion will be granted absent undue prejudice to the opposing parties. Holden v. Weinschenk, 1998 ME 185, ¶ 6, 715 A.2d 915. "[P]assage of time, alone, is not grounds for denying a motion to amend." Diversified Foods, Inc. v. First Nat. Bank of Boston, 605 A.2d 609, 616 (Me. 1992) (citing Young v. Greater Portland Transit Dist., 535 A.2d 417, 418 n. 1 (Me. 1987). Courts deny motions to amend on the grounds of undue delay or prejudice when there is no reasonable excuse for the delay, when summary judgment has been heard or entered, where the proposed amendment changes legal theories at a late stage of litigation, and on the eve of trail. See, e.g., Montgomery v. Eaton Peabody, LLP, 2016 ME 44, ¶¶ 14-15, 135 A.3d 106 (upholding denial of motion to amend where moving party could have raised proposed allegations much earlier in the litigation and the proposed allegations would completely change the nature of the case); Efstathiou v. The Aspenquid, Inc., 2008 ME 145, ¶ 22, 956 A.2d 110 (upholding denial of motion to amend where moving party provided no reasonable excuse for the delay); Holden, 1998 ME 185, ¶ 7, 715 A.2d 915 (upholding denial of motion to amend where motion was made after hearing on motion for summary judgment); Diversified Foods, Inc., 605 A.2d at 616 (upholding denial of motion to amend where motion was made more than a month after summary judgment had been entered); Drinkwater v. Patten Realty Corp., 563 A.2d 772, 778 (Me. 1989) (upholding denial of motion to amend . where motion was made five days before trial).
Here, there is no suggestion that Plaintiff has moved to amend in bad faith. The procedural history as presented by the parties does not reveal any undue delay on the part of the Plaintiff. Cape did not produce the 2019 Guaranty Agreement in which it guaranteed the lease of the box truck in response to Plaintiffs May 2022 subpoena, nor did it provide Plaintiff with a copy of the entire insurance policy in response to Plaintiffs October 2022 request. Plaintiff notified Cape of her belief that there was a contractual or employment relationship between Doeur/Samaki and Cape in January 2023 and added Cape as a defendant the next month, February 2023. Upon receiving voluntary disclosures from Doeur's counsel following Doeur's sentencing, which Plaintiff contends show extensive dealings between Doeur/Samaki and Cape, Plaintiff moved to amend to add facts supporting her vicarious liability theory within a matter of days.
Further, Cape will not be prejudiced by allowing Plaintiff to amend her complaint. Although no stay was granted, the protection afforded to Doeur to protect his Fifth Amendment rights did hinder this case's litigation progress and as it stands today, the case remains in early stages of litigation. Cape has been on notice since at least February of this year that Plaintiff intends to pursue recovery from Cape on a vicarious liability theory. The parties to this case are nowhere close to filing any motions for summary judgment, let alone the eve of trial. For these reasons, Plaintiffs Motion to Amend the Second Complaint is GRANTED.
III. Motion to Dismiss or Strike
Cape's Motion to Dismiss or in the Alternative Motion to Strike has been rendered moot by the Court's order granting Plaintiffs motion to amend because the Second Amended Complaint will no longer be the operative complaint in this matter. Even if the Court did reach the merits of Cape's motion, the motion would be denied because it is sufficient to give Cape notice that Plaintiff intends to pursue a negligence claim on the theory of vicarious liability and it alleges facts that, if proved, could establish that claim.
The Second Amended Complaint alleges sufficient facts for this theory of liability. Because Cape's Motion to Dismiss or in the Alternative Motion to Strike has been rendered moot by the Court's order granting Plaintiffs motion to amend, Cape's motion is DENIED.
IV. Motion to Enlarge
Plaintiff filed its Motion to Enlarge Scheduling Order on August 4, 2023. Defendants joined in the need for an amended scheduling order. The Court GRANTS the request to amend the scheduling order, and issues the following:
1. Cape has until December 11, 2023, to answer the complaint.
2. The court to contemporaneously issue amended scheduling order by separate order applicable to all parties.
V. Motion to Stay
Doeur and Samaki filed a Motion to Stay on August 4, 2023, requesting that the court stay the pending matter until Doeur and Samaki's attorney returns from maternity leave on December 11, 2023. Plaintiff objects to this request while Cape sought resolution of the Motion to Dismiss prior to further engagement in discovery. This case was first initiated in March of 2022. An order granting protection to Doeur from giving any deposition testimony or responding to interrogatories for six months or the resolution of the related criminal matter, whichever came first was granted in September of 2022. This stay was extended until June 20, 2023. Doeur and Samaki seek to further extend the Stay in this case beyond June 20, 2023.
The court has issued an amended scheduling order above as well as resolved the pending matters pertaining to Cape. The request for an extension of the stay is hereby DENIED.
VI. Order
For the reasons discussed above, the entry is:
1. Plaintiff's Motion to Amend the Second Complaint is GRANTED.
2. Cape's Motion to Dismiss or in the Alternative Motion to Strike is DENIED.
3. Plaintiff's Motion to Amend the Scheduling Order is GRANTED.
4. Doeur and Samaki's Motion to Extend the Stay is DENIED.
The Clerk is requested to enter this Order on the docket for this case by incorporating it by reference. M.R. Civ. P. 79(a).