Bishop v. Anderson et al

RESPONSE to Motion re MOTION for Summary Judgment and Motion for Leave

W.D. Ky.June 5, 2018

FOR THE UNITED STATES DISTRICT COUR FOR THE WESTERN DISTRICT OF KENTUCKY PADUCAH DIVISION CASE NO. 5:16-cv-00128-TBR GERRY BISHOP, PLAINTIFF, v. RESPONSE TO MOTION FOR SUMMARY JUDGEMENT MOTION FOR LEAVE TO AMEND COMPLAINT AND NAME PROPER PARTIES DAVID A. ANDERSON, et al, DEFENDANTS. COMES NOW, the Plaintiff, Gerry Bishop, and in response to the Defendant’s Motion for Summary Judgment and for his Motion for Leave to Amend his Complaint states as follows: The basis for the original complaint in this action arises out of a rear end collision which occurred on January 26, 2015. In this accident, the Plaintiff, Gerry Bishop, was rear ended by a tractor trailer operated by the Defendant, David Anderson. The accident report listed Mr. Anderson as the Driver and the Defendant, R & L Transfer, Inc. as the owner. (See accident report, Exhibit 1) Immediately following this accident, a Letter was sent to the Defendant R & L Transfer, Inc.’s (Exhibit 2) in-house counsel. R & L Carriers Shared Services, LLC responded to the letter on Feb 13, 2015, providing the Declaration page of the insurance that covered Mr. Anderson and the vehicle. Case 5:16-cv-00128-TBR-LLK Document 39 Filed 06/05/18 Page 1 of 5 PageID #: 512 (Exhibit 3) R & L Transfer, Inc. is a wholly-owned subsidiary of R & L Carriers, Inc. (Exhibit 4, Corporate Disclosure Statement of R & L Transfer, Inc.) At the time of the accident, the Defendant, David Anderson, was employed and working for R & L Carries, Inc, See deposition of David Anderson Page 6 Line 21. It is well settled law that the trial court, at its discretion, will allow a party to amend their pleading. Fed Rules Civ Procedure 15(B) Rule 15. Amended and Supplemental Pleadings (a) Amendments Before Trial. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, 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. USCS Fed Rules Civ Proc R 15 This court in the case of Rose v. Davis confirmed that Leave to amend a complaint should be liberally granted and stated several factors which should be considered. The trial court has discretion to grant or deny a party's motion for leave to amend a complaint pursuant to Fed. R. Civ. P. 15(a). Leave to amend a complaint should be liberally granted. The Court may deny the motion to amend where the complaint, as amended, could not withstand a motion to dismiss. Case 5:16-cv-00128-TBR-LLK Document 39 Filed 06/05/18 Page 2 of 5 PageID #: 513 Matthews v. Jones, 35 F.3d 1046, 1050 (6th Cir. 1994); Thiokol Corp. v. Dept. of Treasury, 987 F.2d 376, 383 (6th Cir. 1993); Neighborhood Dev. Corp. v. Advisory Council on Historic Preservation, HUD, 632 F.2d 21, 23 (6th Cir. 1980). The Court should also consider factors such as undue delay, bad faith or dilatory motive on the part of the movant, the repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment. Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994). Leave to amend the complaint to add a new party should be denied where [*56] substantial prejudice would result to the opposing parties. See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1969); Janikowski v. Bendix Corp., 823 F.2d 945, 951-52 (6th Cir. 1987). Rose v. Davis, No. C-1-02-271, 2005 U.S. Dist. LEXIS 15250, at *55-56 (S.D. Ohio Mar. 28, 2005) In this case, R & L Carriers Shared Services, LLC and Greenwood Motors Lines, Inc in no way can be prejudice by allowing the Defendant to amend its complaint. Both entities were on notice of this claim and are Wholly Owned Subsidiaries of the named Defendant R & L Transfer. Further, R & L Carrier’s in-house counsel was actively working this claim in 2015. This motion in now way should delay the scheduled trial date in this matter. Further, there has been no bad faith or dilatory motive on behalf of the plaintiff. Case 5:16-cv-00128-TBR-LLK Document 39 Filed 06/05/18 Page 3 of 5 PageID #: 514 In addition, Summary Judgments are looked upon with displeasure by the Kentucky courts and are rarely granted. Harragan v. American Fed. of Grain Millers Int. Ky., 445 S.W.2d 131 (1969): "In testing whether it was proper to grant summary judgment, we proceed from the familiar premises that the party moving for the summary judgment has the burden of establishing the non-existence of any genuine issue of material fact and for purposes of the motion, all doubts are to be resolved against the moving party." (Emphasis added) The Defendant has not established the non-existence of any genuine issue of material fact and therefore Defendant’s Motion for Summary Judgement should be denied, and Plaintiff’s should be granted leave to file an amended complaint. RESPECTFULLY SUBMITTED this the 5th day of June, 2018. SANDS M. CHEWNING CHEWNING & CHEWNING 603 SOUTH MAIN STREET P.O. BOX 955 HOPKINSVILLE, KY. 42241-095 TELEPHONE 270-886-4422 FACSIMILE 270-885-2111 /s/SANDS M. CHEWNING CERTIFICATE OF SERVICE Case 5:16-cv-00128-TBR-LLK Document 39 Filed 06/05/18 Page 4 of 5 PageID #: 515 I, the undersigned, hereby certify that a true and accurate copy of the foregoing was served upon the following by mailing and/or hand delivering a true copy of same to: Jamie Ballinger-Holden 265 Brookview Centre Way, Suite 600 Knoxville, TN 37919 This the 5th day of June, 2018. /s/SANDS M. CHEWNING Case 5:16-cv-00128-TBR-LLK Document 39 Filed 06/05/18 Page 5 of 5 PageID #: 516