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LLC v. Excel Hotel Services, Inc.

United States District Court, D. Connecticut

December 20, 2017

50 MORGAN HOSPITALITY GROUP, LLC, Plaintiff,
v.
EXCEL HOTEL SERVICES, INC., D/B/A EXCEL & ASSOCIATES, Defendant.

          MEMORANDUM AND ORDER

          Michael P. Shea, U.S.D.J.

         Plaintiff 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. (“Kaurette”)[1](collectively, “Third-Party Defendants”). (ECF No. 17.) Excel also filed an Apportionment Complaint against the Third-Party Defendants. (ECF No. 18.)

         50 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.)

         I. Procedural Background

         50 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.)

         On June 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[2] and 52-572h.[3] (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.)

         Crest and TPC filed substantially similar motions to dismiss the Apportionment Complaint under Fed.R.Civ.P. 12(b)(6).[4] (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.

         On 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.

         50 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.

         II. Discussion

         A. Motion to Amend

         Before 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)).

         As the 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).

         B. ...


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