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Hopkins v. Kawasaki Rail Car, Inc.

United States District Court, D. Connecticut

August 28, 2017




         I. BACKGROUND

         In this 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.

         On or 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.[1] 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.[2]

         Plaintiffs 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 ¶ 4.

         As the 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 children.

         Among 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.

         On May 19, 2017, Defendants removed Plaintiffs' state action to this District in a timely manner pursuant to 28 U.S.C. §§ 1441 and 1446.[3] 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."[4] Id. ¶ 7. Upon these facts, the citizenship of all Plaintiffs is completely diverse from that of both Defendants.

         Furthermore, 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. § 1332(a).

         A. History of Third-Party Complaints

         Following 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.

         As to 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.

         With 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.

         Next, 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.

         Lastly, 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. ¶ 67.

         As 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.

         On June 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.

         B. Pending Motion

         Pending 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).

         In the 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.

         Turning 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 amendment.

         In 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.[5] 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.


         A. Standard to Grant or Deny Motion for Leave to File Third-Party Complaint

         In 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."[6] 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).

         1. Subject Matter Jurisdiction

         Before 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).

         As 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.

         Moreover, 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.[7] 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.[8] 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 action.

         a. Subject Matter Jurisdiction Over Claims Against Metro-North

         Examining 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.

         According 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.

         In the 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.[9] 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.[10] 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).

         The 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.

         In the 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, ...

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