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TRAVELERS INDEMNITY COMPANY v. GOSLINE

May 27, 2003

THE TRAVELERS INDEMNITY COMPANY, PLAINTIFF,
v.
WILLIAM V. GOSLINE D/B/A BILL'S DUSTBUSTER JANITORIAL SERVICE, DEFENDANT AND THIRD-PARTY PLAINTIFF V. "KENNY DOE," AN EMPLOYEE OF NORTHWAY PLAZA ASSOCIATES, LLC OR KELLY AND DUTCH REAL ESTATE, INC., NORTHWAY PLAZA ASSOCIATES LLOC, KELLY AND DUTCH REAL ESTATE INC., MARCUS NOBLE, INC., PITCHER NOBLE, INC., PITCHER NOBLE, INC., D/B/A NOBLE TRUE VALUE, KEN NOBLE, KEN NOBLE D/B/A NOBLE TRUE VALUE, NOBLE TRUE VALUE, L.R. NELSON CORPORATION, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece, Magistrate Judge

MEMORANDUM DECISION AND ORDER

Plaintiff, Travelers Indemnity Company ("Travelers" or "Plaintiff"), brought this diversity action against William V. Gosline, d/b/a Bill's Dustbuster Janitorial Service ("Gosline"), to recover for alleged property damage. See generally Dkt. No. 1, Compl. In order to fully appreciate the difficult issue presently before this Court, a recitation of the procedural history is warranted.

I. BACKGROUND

Travelers leased space in the Northway Plaza Shopping Center in Queensbury, New York, from its owner, Northway Plaza Associates ("Northway Plaza"), for its telecommunication equipment. Dkt. No. 1 at ¶ 3. The incident giving rise to Plaintiff's suit occurred on October 13, 1999, wherein a "Y" attachment valve connected to a sink faucet in a janitorial closet overflowed causing serious water damage to the floor below, the space that Travelers leased. Id. at ¶¶ 4-6. Plaintiff alleges significant damage to its business property has incurred additional expenses totaling in excess of $580,000. Id. at ¶ 7. On May 24, 2001, Plaintiff brought suit for negligence against Gosline, the janitorial company hired by Northway Plaza, alleging that in installing the "Y" attachment Gosline owed a duty of care to Travelers and breached that duty when they, inter alia, negligently installed the "Y" attachment. Id. at ¶¶ 9-11. Gosline denied the allegations contained in Plaintiff's complaint. Dkt. No. 3, Gosline Answer.

After preliminary discovery had been completed, Defendant Gosline assessed that other parties had significantly contributed to Plaintiff's damages and, thereafter, on November 1, 2001, sought leave from the Court to file a third-party action. Dkt. Nos. 10-12. Such leave was granted on November 26, 2001. Dkt. No. 13. On January 8, 2002, in compliance with that Order, Gosline filed a Third-Party Complaint asserting alternate theories of liability giving rise to contribution and/or indemnification claims against the following Third-Party Defendants:

(1) Kelly and Dutch Real Estate, Inc. — A New York Corporation with its primary place of business in New York and Principal Owner and/or Shareholder of Northway Plaza Associates, LLC, and managers of Northway Plaza Shopping Center;
(2) Northway Plaza Associates, LLC ("Northway Plaza") — A New York Limited Liability Company with its primary place of business in New York and Owner of Northway Plaza Shopping Center;
(3) "Kenny Doe" — Employee of Kelly and Dutch Real Estate, Inc. and/or Northway Plaza Associates who performs maintenance work at Northway Plaza Shopping Center;*fn1
(4) Marcus Noble, Inc.; Pitcher Noble, Inc.; Pitcher Noble, Inc. d/b/a/ Noble True Value; Ken Noble; Ken Noble d/b/a/ Noble True Value; Noble True Value (Collectively referred to as "Noble True Value" or "Noble") — New York Corporations doing business in New York and Individuals residing in New York who are the distributors and sellers of subject "Y" attachment;*fn2 and
(5) L.R. Nelson Corporation ("L.R. Nelson" or "Nelson") — Incorporated in Delaware with principal place of business in Illinois, doing business in New York, and manufacturer of subject "Y" attachment.*fn3
Dkt. No. 14.

After each relevant party was joined in the action, a slew of cross claims ensued amongst all the Third-Party Defendants, each pointing the blame in another's direction. Dkt. Nos. 17, 21, 22, 23, 26, & 27.

Amid all these entanglements, on October 3, 2001, L.R. Nelson's insurance carrier, Reliance Insurance Company, went into liquidation. See Dkt. No. 53, Ex. A, Order of Liquidation. At the time the Third-Party Complaint was filed, L.R. Nelson was represented by the Napierski Law Firm as retained by Reliance in accordance with their duty to defend. Such representation continued until June or July of 2002, when the Illinois Insurance Guaranty Fund ("Guaranty Fund" or "Fund") assumed L.R. Nelson's defense and accordingly retained Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, P.C. ("Ainsworth-Sullivan"). The Court received notice of this change on September 13, 2002. Dkt. No. 40. In the interim, Travelers sought leave and was permitted to file a Rule 14(a) Complaint against Third-Party Defendants True Noble and L.R. Nelson. Dkt. No. 36, Stipulation Order; Dkt. No. 38, Rule 14(a) Compl. filed on July 24, 2002.*fn4 On October 25, 2002, L.R. Nelson filed their Answer to the 14(a) Complaint and included an affirmative defense asserting that, under the Illinois statutory scheme governing the Guaranty Fund, both the Fund and Nelson are immune from the suits being asserted against them.*fn5

All parties to the lawsuit were put on notice as to the presence of the Illinois Statute and its potential role in shielding Nelson's liability as early as September 20, 2002.*fn6 Thereafter, L.R. Nelson attempted to assert the same affirmative defense in its proposed amended answers to Gosline's Complaint, Noble True Value's cross-claims, and Northway Plaza's cross-claims by circulating those amendments to all parties accompanied by a stipulation. Dkt. No. 50, Ex. R. Travelers and Northway Plaza were the only parties to execute a stipulation agreeing to the amendments; thus the present motion ensued.

II. DISCUSSION

Pending is L.R. Nelson's Motion to Amend several of his Answers to other Third-Party Defendants as well as Third-Party Plaintiff Gosline pursuant to Rule 15 of the Federal Rules of Civil Procedure in order to add an affirmative defense. Dkt. No. 50. Specifically, Nelson seeks permission to amend (1) its Answer to the cross-claim of the Noble Third-Party Defendants (Dkt. No. 27); (2) its Answer to the cross claim of the Northway Plaza Third-Party Defendants*fn7; and (3) its Answer to Defendant/Third-Party Plaintiff Gosline's Third-Party Complaint (Dkt. No 22) in order to add the affirmative defense that pursuant to the statutes governing the Illinois Insurance Guaranty Fund, all claims against Nelson in the nature of subrogation, contribution, and/or indemnity cannot be maintained and should be dismissed. Dkt. No. 50. Noble True Value and Gosline oppose the Motion. Dkt. Nos. 52-53. All other parties, as aforementioned, have stipulated to the amended answer. For the reasons that follow, L.R. Nelson's Motion to Amend is denied.

A. Standard for Motion to Amend

FED. R. CIV. P. 15(a) states, in pertinent part, that leave to amend a pleading should be "freely given when justice so requires." Indeed, leave to amend should be denied only in the face of undue delay, bad faith, undue prejudice to the nonmovant, futility of amendment, or where the movant has repeatedly failed to cure deficiencies in previous amendments. Foman v. Davis, 371 U.S. 178, 182 (1962); Kropelnicki v. Siegel, 2002 WL 924443, at **9 (2d Cir. May 8, 2002) (citing Chill v. General Electric, Co., 101 F.3d 263, 271-72 (2d Cir. 1996)). District courts are vested with broad discretion to grant a party leave to amend the pleadings. See Local 802, Assoc. Musicians of Greater New York v. Parker Meriden Hotel, 145 F.3d 85, 89 (2d Cir. 1998). "The party opposing a motion for leave to amend has the burden of establishing that granting such leave would be unduly prejudicial." State of New York v. Panex Indus., Inc., 1997 WL 128369, at *2 (W.D.N.Y. Mar. 14, 1997) (citing Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996)); see also Lamont v. Frank Soup Bowl, 2000 WL 1877043, at *2 (S.D.N.Y. Dec. 27, 2000) (citation omitted). This requires the non-movant to "do more than simply claim to be prejudiced." Bryn Mawr Hosp. v. Coatesville Elec. Supply Co., 776 F. Supp. 181, 185 (E.D.Pa. 1991).

The Third-Party Claimants opposing the motion assert three distinct bases for such opposition: (1) undue delay or bad faith by Nelson in asserting the proposed amendment; (2) prejudice to the parties would result if the proposed amendment were permitted; and (3) the proposed amendment is futile ...


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