United States District Court, D. Connecticut
MEMORANDUM AND ORDER
Michael P. Shea, U.S.D.J.
50 Morgan Hospitality Group, LLC (“50 Morgan”)
brought this lawsuit against Defendant Excel Hotel Services,
Inc., d/b/a Excel & Associates (“Excel”),
alleging that Excel failed to progress, complete, and
otherwise fulfill its obligations as a general contractor for
a construction project known as Radisson Hartford (“the
Project”), consisting of converting the upper floors of
a hotel into multi-family apartments and upgrading areas of
the building for continuing use as a hotel. Excel thereafter
filed a Third-Party Complaint and Cross-Claim impleading
Third-Party Defendants Electrical Contractors, Inc.
(“ECI”), Crest Mechanical Services, Inc.
(“Crest”), TPC Associates, Inc.
(“TPC”), Crosskey Architects, LLC
(“Crosskey Architects”), William W. Crosskey II
(“Crosskey”), and Kaurette Construction, Inc.
Defendants”). (ECF No. 17.) Excel also filed an
Apportionment Complaint against the Third-Party Defendants.
(ECF No. 18.)
Morgan moves for leave to file an amended complaint. (ECF No.
73.) Crest and TPC each moves to dismiss the Apportionment
Complaint. (ECF Nos. 59 and 61.)
Morgan filed a lawsuit in Connecticut Superior Court on
January 27, 2017, asserting claims against Excel for breach
of contract, intentional misrepresentation, negligent
misrepresentation, and violation of the Connecticut Unfair
Trade Practices Act (“CUTPA”), Connecticut
General Statutes (“Conn. Gen. Stat.”) §
42-110a et seq. (ECF No. 1-1.) Excel removed the
action to federal court on the basis of diversity
jurisdiction on February 23, 2017. (ECF No. 1.) On May 26,
2017, Excel responded to the Complaint by filing an Answer,
Affirmative Defenses, and Counterclaims against 50 Morgan.
(ECF No. 16.) Excel asserted counterclaims for breach of
contract, breach of the covenant of good faith and fair
dealing, unjust enrichment, fraudulent misrepresentation,
negligent misrepresentation, violation of the CUTPA, and
foreclosure of a mechanic's lien in connection with the
Project. (ECF No. 16.)
1, 2017, Excel filed the Third-Party Complaint, asserting
claims for breach of contract and indemnification against
ECI, Kaurette, Crest, and TPC, and claims for intentional
misrepresentation, negligent misrepresentation, violation of
the CUTPA, and tortious interference with contractual
relations against Crosskey Architects and Crosskey. (ECF No.
17.) Also on June 1, 2017, Excel filed the Apportionment
Complaint under Conn. Gen. Stat. §§
52-102b and 52-572h. (ECF No. 18.) Excel alleges that
to the extent 50 Morgan was damaged as alleged in the
Complaint, the damages were caused by the negligence of each
of the Third-Party Defendants, and that in the event 50
Morgan recovers damages against Excel, each of the
Third-Party Defendants would be liable for a proportionate
share of such damages. (ECF No. 18.)
and TPC filed substantially similar motions to dismiss the
Apportionment Complaint under Fed.R.Civ.P.
12(b)(6). (ECF Nos. 59 and 61.) Crest and TPC each
argue that apportionment of liability is not available under
Conn. Gen. Stat. §§ 52-102b and 52-572h because 50
Morgan's underlying Complaint against Excel does not
include a negligence claim, and because 50 Morgan alleged
economic losses only, and did not allege personal injury,
wrongful death, or property damage.
September 1, 2017, the Court granted the parties' joint
motion to modify the scheduling order governing this case.
(ECF No. 68.) The Court adopted all of the modifications set
forth in the parties' joint motion, including that 50
Morgan would be permitted to file an amended complaint by
September 15, 2017, and that fact discovery would be
completed by August 31, 2018. (ECF No. 65 at 3, ECF No. 68.)
The parties have since been engaged in discovery.
Morgan filed a motion for leave to amend the complaint on
September 15, 2017. (ECF No. 73.) 50 Morgan's proposed
amended complaint adds a negligence claim, adds factual
allegations in support of its breach of contract, intentional
misrepresentation, negligent misrepresentation, CUTPA, and
breach of the covenant of good faith and fair dealing claims,
and amends 50 Morgan's request for relief. (ECF No.
73-4.) No party opposed the motion to amend.
Motion to Amend
trial, “a party may amend its pleading only with the
opposing party's written consent or the court's
leave, ” which the Court should “freely give . .
. when justice so requires.” Fed.R.Civ.P. 15(a)(2).
Despite the liberal standard for amending or supplementing
pleadings, “[a] district court has discretion to deny
leave for good reason, including futility, bad faith, undue
delay, or undue prejudice to the opposing party.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 200 (2d Cir. 2007) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)).
proposed amendments identify and clarify the nature of
Plaintiff's alleged damages, no party opposes the
amendments, and the case is in the early stages of discovery,
I find that the proposed amendments are neither futile nor
made in bad faith, and would not unduly delay litigation or
prejudice the parties. I GRANT the motion for leave to amend,
as “justice so requires.” Fed.R.Civ.P. 15(a)(2).