United States District Court, D. Connecticut
BRIAN HOPKINS; JONELL HOPKINS, individually; JONELL HOPKINS ppa JOSEPH HOPKINS, JONELL HOPKINS ppa LUKE HOPKINS; JONELL HOPKINS ppa EVE HOPKINS; and JAKE HOPKINS; Plaintiffs,
KAWASAKI RAIL CAR, INC. and KAWASAKI MOTORS MANUFACTURING CORP., U.S.A., Defendants.
RULING ON DEFENDANT KAWASAKI RAIL CAR, INC.'S
MOTION FOR LEAVE TO FILE SECOND AMENDED THIRD-PARTY COMPLAINT
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
removed civil action for grievous electrocution injuries, one
defendant now requests leave to amend its third-party
complaint for the second time. The facts recounted here are
based on the pleadings filed in this Court.
about April 17, 2017, Plaintiffs Brian Hopkins and Jonell
Hopkins, and their four children, commenced this civil action
against defendants Kawasaki Rail Car, Inc. ("KRC")
and Kawasaki Motors Manufacturing Corp., U.S.A.
("KMMC") (collectively "Defendants") in
Connecticut Superior Court, the Judicial District of
Fairfield at Bridgeport. In their Complaint, Plaintiffs alleged
that on or about April 25, 2015, Brian Hopkins, while
employed by Metro-North Commuter Railroad Company
("Metro-North"), was in the process of putting
Kawasaki M8S rail cars into service when he became injured
"suddenly and without warning" by "an
electrocution and electrical arch flash . . . in the
Acceptance Facility" located at the "eastern side
of the New Haven Rail Yard in New Haven, Connecticut."
Doc. 1, First Count ¶¶ 3, 6, 8. Said electrocution
allegedly involved a defective pantograph and live catenary
wires in the Acceptance Facility.
allege, inter alia, that Defendant KRC "owned,
controlled and/or possessed the M8 Acceptance Facility;"
was responsible for its maintenance and operation; and
"created, allowed and/or maintained" that facility
so that it created a "reasonably foreseeable risk of
electrocution to persons putting M8 and M8S cars into
service." Id. ¶¶ 3-7. In addition,
Plaintiffs assert that KMMC was the corporation which
"engaged in the design, manufacture, wholesaling,
distribution, promotion and/or retailing in Connecticut"
of the defective pantograph which contributed or caused Brian
Hopkins's electrocution. Id., Fourth Count
result of the electrocution, Plaintiff Brian Hopkins has
allegedly suffered "serious, painful and permanent
injuries, " including but not limited to: "[f]ull
thickness electrocution burns covering forty percent of his
body;" "[p]artial thickness electrocution burns
covering his left forearm and palm;" "[c]ardiac
arrest requiring emergency resuscitation;"
"[p]olymicrobial secondary infections to his left ankle
and lower leg, exposing bone and tendon;" "[s]exual
dysfunction requiring full reconstructive surgery;"
"[p]ersistent dehydration and gastrointestinal
distress;" "cognitive impairment;"
"[r]ecurrent headaches;" "[i]nsomnia and
disordered sleeping;" and "[p]ermanent
disfigurement." Id., First Count ¶ 13.
Plaintiff Brian Hopkins has also allegedly suffered various
forms of mental distress (e.g., shock to his nervous
system, anxiety, distress, post-traumatic stress,
depression). Id. ¶ 14. All of the aforesaid
grievous injuries have led to the expenditure of "sums
of money for medical care and treatment" and will
require future payment of such expenses. Plaintiff has
allegedly lost his earnings, earning capacity, and former
lifestyle, all of which have negatively impacted his wife and
the claims set forth in their Complaint, Plaintiffs have
alleged common law negligence and statutory product liability
violations, Conn. Gen. Stat. § 52-572m, et
seq., against each of the Defendants. In addition,
Plaintiffs have alleged that KRC violated Connecticut's
building, fire and demolition code, Conn. Gen. Stat. §
29-252, et seq., id., Second Court ¶ 14;
Defendants defectively designed and manufactured the
pantograph at issue, id. Fourth count ¶¶
8-19, 34-42; Defendants failed to warn or instruct Brian
Hopkins regarding the "significant danger of
electrocution in testing the pantograph, " id.
¶¶ 20-27; there existed a "malfunction"
due to a "defect in the pantograph, " id.
¶¶ 28-33; there has been a loss of consortium by
Jonell Hopkins due to her husband Brian's injuries,
id. Fifth Count ¶¶ 91-92; and the Hopkins
children have lost their "parental care, training, love,
and companionship of their father, " id. Sixth
Count ¶¶ 91- 95. With respect to damages,
Plaintiffs pray for money damages, punitive damages, any
other appropriate relief, and attorneys' fees and costs,
id. Prayer for Relief ¶¶ 1-4.
19, 2017, Defendants removed Plaintiffs' state action to
this District in a timely manner pursuant to 28 U.S.C.
§§ 1441 and 1446. In their Notice of Removal, they
asserted that this Court has subject matter jurisdiction over
the action because it "involves a controversy wholly
between citizens of different states" so that there is
"diversity of jurisdiction" pursuant to 28 U.S.C.
§ 1332(a)(1). According to Defendants, both KRC and KMMC
are corporate entities. Pursuant to 28 U.S.C. § 1332(c),
"a corporation shall be deemed to be a citizen of every
State . . . by which it has been incorporated and of the
State . . . where it has its principal place of
business." Defendants assert that KRC is "a New
York corporation with its principal place of business in
Yonkers, New York" and is thus a citizen of New York.
See Doc. 1 ("Notice of Removal") ¶ 5.
KMMC is "a Nebraska corporation with its principal place
of business in Lincoln, Nebraska" and is accordingly a
citizen of Nebraska. Id. ¶ 6. Plaintiffs are,
"[u]pon information and belief, . . . citizens of the
State of Connecticut." Id. ¶ 7. Upon these
facts, the citizenship of all Plaintiffs is completely
diverse from that of both Defendants.
from the face of the Complaint, given the extensive injuries
Brian Hopkins allegedly suffered from electrocution on April
25, 2015, the Court concurs with Defendants that "it
appears that the amount in controversy exceeds the sum or
value of $75, 000[, ] exclusive of interest and costs."
Id. ¶ 10. Consequently, this action meets the
jurisdictional amount in damages for "diversity of
citizenship" subject matter jurisdiction under 28 U.S.C.
History of Third-Party Complaints
removal of this action, each Defendant filed a third-party
complaint against Metro-North and Trans Tech of South
Carolina, Inc. ("Trans Tech"), asserting that this
Court "may exercise supplemental jurisdiction over the
claims therein pursuant to 28 U.S.C. § 1367." Doc.
22 & 23. In KRC's original third-party complaint, it
alleged that "[o]n or about December 18, 2009, KRC and
Metro-North entered into a written and signed License
Agreement whereby Metro-North, as Licensor, permitted KRC, as
Licensee, use of a portion of the New Haven Railyard."
Doc. 22, ¶ 14. Moreover, "Metro-North reserved unto
itself and its employees the right to use the Licensed
Premises to conduct its railroad business operations."
Id. ¶ 16. KRC further alleged that as an
employee of Metro-North, Brian Hopkins was "under the
supervision and control of Metro-North, on a portion of the
Licensed Premises" at the New Haven Rail Yard at the
time he was injured in April of 2015. Id. ¶ 18.
Metro-North, KRC asserted claims for apportionment and common
law and contractual indemnification. First, in its
apportionment claim, KRC alleged that Metro-North is or may
be liable, pursuant to Conn. Gen. Stat. § 52-572h, for
some or all of Plaintiffs' damages or losses; and said
damages and/or losses should be apportioned to Metro-North
under Conn. Gen. Stat. §§ 52-102b and 52-572h.
Id. ¶ 39. Second, as to common law
indemnification, KRC alleged that it was Metro-North's
negligence, rather that any act or omission by KRC, that was
the "direct and immediate cause of the alleged accident
and resulting injuries and damages." Id. ¶
42. Third, with respect to contractual indemnification, KRC
alleged that "[p]ursuant to [paragraph 6 of] the License
Agreement" with Metro-North, KRC was not
"responsible [for] the acts or omissions of
Metro-North's contractors, agents, employees or
others" performing work on or "otherwise accessing
the Licensed Premises." Id. ¶ 48. KRC
asserted that it was consequently entitled to indemnification
for any damages inflicted on Plaintiffs due to the fault or
negligence of Metro-North. Id. ¶¶ 49-50.
respect to Trans Tech, KRC alleged contractual and common law
indemnification claims and contribution. First, to make out a
claim for contractual indemnification, KRC alleged that on or
about May 23, 2007, KRC and Trans Tech entered into a written
and signed subcontract under which Trans Tech, agreed to
"design and manufacture pantographs for KRC."
Id. ¶ 53. Furthermore, in that subcontract,
Trans Tech agreed to be held "responsible for . . . all
injuries (including death) to all persons" which
"occurr[ed] on account of, or in connection with, the
performance of Subcontract Work." Id. ¶ 55
(citing and quoting Article 6.01A of Subcontract). Trans Tech
also allegedly "promised and agreed . . . that its work
would be free from defects." Id. ¶ 56.
Under these provisions, KRC alleged that Trans Tech must
"indemnify KRC for any claims, losses, damages and
expenses incurred in connection with this case."
Id. ¶ 57.
in pleading a common law indemnification claim, KRC alleged
that Trans Tech was in complete "control over the design
and manufacture of the pantograph, " including "its
component parts and/or product warnings or
instructions." Id. ¶ 59. Moreover, KRC had
no knowledge of any negligence on the part of Trans Tech or
any product defect or any failure to warn or instruct Brian
Hopkins regarding the pantograph's use. Id.
¶ 61. KRC thus asserted that Trans Tech was liable to
indemnify KRC for damages incurred by Plaintiffs due to the
negligence of Trans Tech and/or the pantograph product it
suppled to KRC. Id. ¶¶ 62-64.
KRC sought contribution from Trans Tech pursuant Conn. Gen.
Stat. §§ 52-572o, alleging that Trans Tech
"designed, formulated, produced and/or manufactured the
allegedly defective pantograph, " including its
component parts and any accompanying warnings and
instructions. Id. ¶ 66. Accordingly, KRC
asserted that Trans Tech "is liable for all or part of
[P]laintiffs' claims against KRC." Id.
noted supra, KMMC also filed a third party complaint
against Metro-North and Trans Tech. Doc. 23. As to each
third-party defendant, KMMC brought claims for common law
indemnification and contribution.
29, 2017, twenty days after filing their third-party
complaints [Doc. 22 & 23], both KRC and KMMC filed
amended third-party complaints "as a matter of
course" under Federal Rule of Civil Procedure 15(a).
See Doc. 25 & 26. Specifically, they amended
their pleadings "once as a matter of course within: 21
days after serving [them], " by filing electronically.
Fed.R.Civ.P. 15(a)(1)(A). These amended third-party
complaints contained the same third-party claims against
Metro-North and Trans Tech but included ministerial, rather
than substantive, changes. For example, in its amended
third-party complaint, KMMC inserted "Transtech of South
Carolina, Inc." as an "a/k/a" in referring to
"Trans Tech of S.C., Inc." on page 2, at paragraph
3. Compare Doc. 23 and 25, ¶ 3.
Similarly, KRC changed "Complaints" in the
pleading's title to "Complaint, " inserted
"defendant-third party" before
"plaintiff" in reference to its own status, and
inserted "Transtech of South Carolina, Inc." as an
"a/k/a" in referring to Trans Tech.
Compare Doc. 22 and 26, ¶¶ 1, 3.
before the Court is KRC's "Motion for Leave to File
Second Amended Third-Party Complaint." Doc. 37. In this
instance, KRC seeks permission from the Court to amend
pursuant to Federal Rule of Civil Procedure 15(a)(2), which
provides that if not permitted to amend as a matter of
course, "a party may amend its pleading only with the
opposing party's written consent or the court's
leave." Moreover, the Rule directs that "[t]he
court should freely give leave when justice so
requires." Fed.R.Civ.P. 15(a)(2).
case at bar, KRC has certified in a notice to the Court that
it "has inquired of all counsel of record as to whether
any party objects to KRC's July 31, 2017 Motion to File
Second Amended Third Party Complaint, " and "no
party objects to the allowance of the motion." Doc. 41.
In addition to counsel's explicit certification, such a
statement made by counsel is recognized by the Federal Civil
Rules as necessarily possessing "evidentiary support,
" or otherwise subject to sanctions. Fed.R.Civ.P.
11(b)(3), (c). However, even accepting its substance as true,
the statement does not comprise "the opposing
party's written consent." Id.
15(a)(2) (emphasis added). KRC thus requests to amend with
"the court's leave." Id.
to the details of KRC's motion, the amendments presented
add factual details to the claims. The proposed amendments
include "a new paragraph 19 which incorporates
additional allegations based on facts learned by counsel
through review of additional contracts, procedures, protocols
and specifications relating to the business relationship
between KRC and the third-party defendant, Metro-North."
Doc. 37, at 2. Moreover, "[t]he proposed amendment also
includes a new paragraph 51 which expands on the License
Agreement responsibilities alleged in the original
third-party complaint." Id. "Finally, the
proposed amended complaint corrects two spelling errors and
capitalizes the letter 'P' in 'Plaintiff' in
various places for uniformity in the pleading."
Id. In sum, each of these proposed amendments adds
factual detail, provides clarification, and/or makes
corrections, which are proper and reasonable purposes of
support of the motion, KRC argues that no party will be
prejudiced by the proposed amendment. As KRC points out,
"[t]his case is in its infancy." Id.
Third-party defendant Metro-North has only recently appeared
on July 25, 2017, and has "not yet filed a responsive
pleading." Id. Trans Tech has not yet appeared
or filed any responsive pleading to either of the prior
versions of KRC's third-party complaint. Id. In
addition, "[t]he parties have not filed a planning
meeting report and have not commenced any formal
discovery." Id. Lastly, KRC asserts that there
has been "no bad faith or undue delay" in its
presentation of the amendments. Id.
Standard to Grant or Deny Motion for Leave to File
general, pursuant to Rule 14(a)(1) of the Federal Rules of
Civil Procedure, "[a] defending party may, as
third-party plaintiff, serve a summons and complaint on a
nonparty who is or may be liable to it for all or part of the
claim against it." By design, Rule 14(a) "promote[s]
judicial economy by eliminating the need for a defendant to
bring a separate action against a third-party who may be
secondarily or derivatively liable to the defendant for all
or part of the plaintiff's claim." Hines v.
Citibank, N.A., 96 CV 2565(RJW), 1999 WL 440616, *2
(S.D.N.Y. June 28, 1999) (citation omitted). Nonetheless,
"the right to implead third parties is not automatic,
" Consolidated Rail Corp. v. Metz, 115 F.R.D.
216, 218 (S.D.N.Y.1987). The decision whether to permit a
defendant to implead a third-party defendant rests in the
trial court's discretion. Kenneth Leventhal & Co.
v. Joyner Wholesale Co., 736 F.2d 29, 31 (2d Cir. 1984)
(per curiam); Laffey v. Northwest Airlines,
Inc., 567 F.2d 429, 477 (D.C. Cir.1976), cert.
denied, 434 U.S. 1086 (1978).
Subject Matter Jurisdiction
examining the substance of the proposed amended third-party
claims, the Court must determine whether it possesses subject
matter jurisdiction over those claims. An impleader claim, as
every other claim in federal court, must be assessed
individually to confirm the existence of a proper basis for
federal subject matter jurisdiction. See Caterpillar,
Inc. v. Lewis, 519 U.S. 61, 66 n. 1 (1996) ("Once
federal subject matter jurisdiction is established over the
underlying case between [plaintiff] and [defendant], the
jurisdictional propriety of each additional claim is
to be assessed individually.") (emphasis added).
"[W]hether a court has subject matter jurisdiction over
a third-party . . ., is distinct from an assessment of the
propriety and merits of an impleader action." Bank
of India v. Trendi Sportswear, Inc., 239 F.3d 428, 438
(2d Cir. 2000).
noted supra, in their Notice of Removal, Defendants
asserted that this Court has subject matter jurisdiction over
this action based on diversity of citizenship, pursuant to 28
U.S.C. § 1332(a)(1). Specifically, this matter
"involves a controversy wholly between citizens of
different states" and the amount in controversy exceeds
$75, 000, exclusive of interest and costs. 28 U.S.C. §
1332(a)(1). The Plaintiffs, upon the information and belief
of Defendants, are citizens of Connecticut; the corporate
Defendants, KRC and KMMC, are citizens of New York and
Nebraska, respectively; and the damages alleged well exceed
the jurisdictional amount. Doc. 1 ("Notice of
Removal"), ¶¶ 5-8.
Defendants asserted in their Notice of Removal that subject
matter jurisdiction in the main case is based on
"diversity of citizenship." Doc. 1, ¶ 12. In
general, Plaintiffs' claims appear to arise under
Connecticut common and statutory law, including, inter
alia, negligence and Connecticut's product liability
statute, codified at Conn. Gen. Stat. § 52-572m, et
seq. At this point, no firm grounds have been presented
to find that a "federal question" has been
implicated, which would give rise to "federal
question" subject matter jurisdiction under 28 U.S.C.
§ 1331. Similarly, because the proposed impleader
claims arise under Connecticut common and statutory law
(apportionment, common law and contractual indemnification,
and contribution), there is no "federal question"
implicated in the proposed amended third-party
complaint. The Court therefore examines whether there
is "diversity of citizenship, " 28 U.S.C. §
1332(a)(1), between the parties in the proposed third-party
Subject Matter Jurisdiction Over Claims Against
the citizenship of the parties to the third party claim, as
stated supra, Defendant KRC is "a New York
corporation with its principal place of business in Yonkers,
New York." See Doc. 1 ("Notice of
Removal") ¶ 5. Under 28 U.S.C. § 1332(c)(1),
"a corporation shall be deemed to be a citizen of any
State by which it has been incorporated and of the State
where it has its principal place of business." KRC is
thus a citizen of New York.
to the third party complaint, "defendant, Metro-North
Commuter Railroad Company, upon information and belief, is a
corporation organized, created and existing under the laws of
the State of New York, and is authorized to do business in
the State of Connecticut, and is a common carrier in
interstate transportation and commerce by railroad."
Doc. 38, ¶ 2. If, as KRC alleges, Metro-North has been
incorporated by the State of New York, Metro-North, like KRC,
is a citizen of that State. Because both parties are citizens
of New York, there is no diversity between them.
absence of either "diversity" or "federal
question" subject matter jurisdiction over KRC's
third party claims against Metro-North, the Court next turns
to examine whether supplemental jurisdiction exists under 28
U.S.C. § 1367. That statute, captioned "Supplemental
[J]urisdiction, " provides that "in any civil
action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article
III of the United States Constitution." 28 U.S.C. §
1367(a). "Such supplemental jurisdiction shall include
claims that involve the joinder or intervention of additional
parties." Id. If the claims in the proposed
Third Party Complaint arise from the same nucleus of
operative fact as Plaintiffs' Complaint, the Court may
exercise supplemental jurisdiction. See, e.g.,
Coale v. Metro-North R.R. Co ., No. 3:08-CV-01307
(CSH), 2009 WL 212063, at * 1-2 (D.Conn. Jan. 29, 2009)
(recognizing supplemental jurisdiction with respect to
interstate railroad carrier's third-party common law
indemnity claim in relation to plaintiff railroad
worker's personal injury action under the FELA).
Second Circuit has articulated that "disputes are part
of the same case or controversy within § 1367 when they
derive from a common nucleus of operative fact."
Achtman v. Kirby, McInerney & Squire, LLP, 464
F.3d 328, 335 (2d Cir. 2006) (citation and internal quotation
marks omitted). See also, e.g., Mar-Cone Appliance Parts
Co. v. Mangan, 879 F.Supp.2d 344, 357 (W.D.N.Y. 2012)
(holding defendants' third-party claims for contribution
fall within the court's supplemental jurisdiction if the
impleaded defendant's actions share a common nucleus of
operative fact with the case already before the court);
Estate of Bruce v. City of Middletown, 781 F.Supp.
1013, 1016-17 (S.D.N.Y. 1992) (exercising supplemental
jurisdiction over town's third-party claims against movie
theater for indemnification and contribution in civil rights
and wrongful death action against town where town's
claims against theater were "inextricably bound up with
the factual issues associated" with underlying civil
rights claim). In determining whether two disputes arise from
a common nucleus of operative fact, the Second Circuit has
traditionally asked whether the facts underlying both claims
substantially overlap or the main claim necessarily brings
the facts underlying the second claim before the court.
Achtman, 464 F.3d at 335.
case at bar, the main claims of the Plaintiffs against KRC
and the third-party claims of KRC against Metro-North and
Trans Tech arise from a common nucleus of operative fact. The
central issue in all such claims is whether and/or whose
negligence gave rise to Plaintiff Brian Hopkins's
electrocution on April 25, 2015. Stated differently, the core
question involving all parties, including the impleaded
third-party Defendants, ...