MTB SERVICES, INC., t/a, a/k/a, f/k/a MY-T-BRITE, INC. Plaintiff,
TUCKMAN-BARBEE CONSTRUCTION CO., INC., et al., Defendants.
RICHARD D. BENNETT, District Judge.
Plaintiff MTB Services, Inc. ("Plaintiff" or "MTB") has brought this action alleging negligence and breach of contract against Defendants Tuckman-Barbee Construction Co., Inc. ("Tuckman-Barbee"), Brand Energy Services, LLC ("Brand Energy") and Church Restoration Group, LLC ("CRG") (collectively "Defendants") for damage to equipment leased by Plaintiff MTB to Defendant CRG in connection with a construction project involving the restoration of the Naval Academy Chapel in Annapolis, Maryland. Plaintiff initially filed suit in the Circuit Court of Maryland for Anne Arundel County. Subsequently, Defendant Tuckman-Barbee removed this action to this Court, with the consent of both co-Defendants Brand Energy and CRG, on the basis of diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. The Complaint alleges claims of negligence/respondeat superior against Defendants Tuckman-Barbee and Brand Energy (Counts I & II) as well as claims of breach of contract and negligence/respondeat superior/vicarious liability against Defendant CRG (Counts III & IV). Additionally, Defendants Tuckman-Barbee and CRG have each filed their respective cross-claims against their co-Defendants (ECF Nos. 22, 23, 60 & 61).
The open motions pending before this Court concern issues surrounding the relationship between Plaintiff MTB and Defendant Tuckman-Barbee. On the one hand, Defendant Tuckman-Barbee has moved for summary judgment (ECF No. 28), has moved to substitute Travelers Property Casualty Company of America ("Travelers") as a real party in interest (ECF No. 37), and has moved to join Travelers as a party plaintiff (ECF No. 44). Travelers Property Casualty Company of America ("Travelers") is Plaintiff MTB's insurer. Travelers is organized under the laws of the State of Connecticut and has its principal place of business in Connecticut. See Star Ins. Co. v. Cont'l Servs., Inc., ___ F.Supp.2d ___, 2013 WL 175229, at *2 (D. N.D. Jan. 17, 2013). On the other hand, Plaintiff MTB has filed a Motion for Leave to File Amended Complaint (ECF No. 32) in which it seeks to add a count asserting gross negligence/recklessness/respondeat superior against Defendant Tuckman-Barbee. Also pending before this Court is Plaintiff MTB's Motion for Leave to File Surreply in Opposition to Defendant Tuckman-Barbee's Motion for Summary Judgment (ECF No. 41). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendant Tuckman-Barbee's Motion for Summary Judgment (ECF No. 28) is DENIED. Plaintiff MTB's Motions for Leave to File Amended Complaint (ECF No. 32) and for Leave to File Surreply in Opposition to Defendant Tuckman-Barbee's Motion for Summary Judgment (ECF No. 41) are DENIED. Additionally, Defendant Tuckman-Barbee's Motion to Substitute Real Party in Interest (ECF No. 37) is MOOT and its Motion to Join Travelers Property Casualty Company of America as a Party Plaintiff (ECF No. 44) is GRANTED. Accordingly, Travelers Property Casualty Company of America shall be joined in this action as a Party Plaintiff in addition to Plaintiff MTB Services, Inc.
In the context of a motion for summary judgment, this Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
At some time in late 2008 or early 2009, the Public Works Department of the United States Naval Academy entered into a contract with Defendant Tuckman-Barbee Construction Co., Inc. ("Tuckman-Barbee") for repairs to the Chapel Interior at the United States Naval Academy in Annapolis ("the Project"). AIA Doc. A401-1997, Standard Form Agreement between Contractor and Subcontractor, ECF No. 28-2 [hereinafter TB-CRG Contract"]. On January 12, 2009, Defendant Tuckman-Barbee, as the general contractor on the Project, entered into a subcontract agreement with co-Defendant Church Restoration Group, LLC ("CRG") for the repairs of the chapel interior. Id. CRG in turn entered into sub-subcontract agreements relating to the Project. First, on January 20, 2009, CRG and co-Defendant Brand Energy Services, LLC ("Brand Energy") entered into a "continuing agreement covering future work" for the erection of temporary scaffolding on the Project. CRG-Brand Energy Standard Form of Subcontract Agreement, ECF No. 28-4 [hereinafter CRG-Brand Energy Agreement]. Then, on May 27, 2009, CRG entered into a similar continuing agreement covering future work with Plaintiff MTB Services, Inc. ("Plaintiff" or "MTB"), doing business as Easy Reach Lifts, for the rental of lifts for the Project. CRG-Easy Reach Standard Form of Subcontract Agreement, ECF No. 28-5 [hereinafter CRG-MTB Agreement]; Worthington Aff. § 7, ECF No. 10-3. Schedule A of this agreement designates an earlier lift rental agreement, entered into by MTB and CRG on May 13, 2009,  as the proposal defining the "Work" contracted for. CRG-MTB Agreement at 9-12.
On August 25, 2009, pursuant to a similar rental agreement, MTB leased the ReachMaster Falcon FS 95 Lift ("the Lift") to CRG. August 25, 2009 Easy Reach Rental Agreement, ECF No. 28-6. A little less than a month later, on September 22, 2009, an incident occurred which damaged the Lift while it was being transported up scaffolding into the Naval Academy Chapel. Contractor Significant Incident Report, ECF No. 34-4. A year and a half later, Travelers Property Casualty Company of America ("Travelers"), MTB's insurance carrier, sent a subrogation claim letter, to CRG's insurer, Selective Insurance Company of America, requesting reimbursement for the damage to the Lift. Letter from Travelers to Selective Ins. Co. of Am. (Mar. 29, 2011), ECF No. 42-2. According to Travelers, the Lift was damaged in the amount of $216, 077.01, which includes MTB's $2, 500.00 deductible. Id. On December 16, 2011, Travelers, by its counsel,  sent a "notice of claim" to Defendants Tuckman-Barbee, Brand Energy and CRG indicating that it paid MTB $216, 077.01 as a result of the damage to the Lift, and that as such, it had "incurred a subrogation interest for this amount." Notice of Claim, ECF No. 28-1. When neither defendant reimbursed Travelers, Plaintiff MTB brought this action alleging negligence and breach of contract against Defendants Tuckman-Barbee, Brand Energy and CRG in the Circuit Court of Maryland for Anne Arundel County, Case No. 12170098. See Notice of Claim, ECF No. 28-1; Notice of Removal § 1, ECF No. 1. This action was then removed to this Court, on July 16, 2012, by Defendant Tuckman-Barbee with the consent of both Brand Energy and CRG on the basis of diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. Id.
STANDARDS OF REVIEW
I. Motion for Leave to Amend
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, "[a] party may amend its pleading once, as a matter of course" within "21 days after serving it, " or "if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." FED. R. CIV. P. 15(a) (1)(A)-(B). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). In Foman v. Davis, 371 U.S. 178, 182 (1962), the United States Supreme Court explained that "in the absence of any apparent or declared reason... the leave sought should, as the rules require, be freely given.'" The United States Court of Appeals for the Fourth Circuit has "interpreted [Rule]15(a) to provide that leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.'" Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (citing Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).
II. Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue over a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. See id. at 249. In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. See Scott v. Harris, 550 U.S. 372, 378 (2007).
I. Plaintiff MTB's Motions for Leave to File Amended Complaint (ECF No. 32) and for Leave to File Surreply (ECF No. 41)
In moving to amend its complaint, Plaintiff MTB Services, Inc. ("Plaintiff" or "MTB"), doing business as Easy Reach Lifts, seeks to add an additional count against Defendant Tuckman-Barbee Construction Company, Inc. ("Tuckman-Barbee") alleging gross negligence/recklessness/respondeat superior. Federal Rule of Civil Procedure 15(a), provides that leave to amend "shall be freely given when justice so requires, " and the general rule is that Rule 15(a) be liberally construed. Foman v. Davis, 371 U.S. 178, 182 (1962). Accordingly, leave should be denied only when amending the pleading would prejudice the opposing party, reward bad faith on the part of the moving party, or would amount to futility. See Steinburg v. Chesterfield Cnty. Planning Comm'n, 527 F.3d 377, 390 (4th Cir. 2008). This Court has stated that "[a] review for futility is not an evaluation of the underlying merits of the case." Next Generation Grp. v. Sylvan Learning Ctrs., LLC., CCB-11-0986, 2012 WL 37397, at *3 (D. Md. Jan. 5, 2012); see also Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980) ("Unless a proposed amendment may clearly be seen to be futile because of substantive or procedural considerations, ... conjecture about the merits of the litigation should not enter into the decision whether to allow amendment."). At minimum, granting leave to amend is warranted when "at least some [of the requesting party's] claims are not futile." Next Generation Grp., 2012 WL 37397 at *3. "Futility is apparent if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards." Katyle v. Penn Nat. Gaming Inc., 637 F.3d 462, 471 (4th Cir. 2011) (citing United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) ("Because [the] proposed amended complaint does not properly state a claim under Fed.R.Civ.P. 12(b)(6)..., we find the district court correctly determined that further amendment would be futile.").
In this case, Plaintiff seeks to amend its complaint by alleging a gross negligence claim against Defendant Tuckman-Barbee. In Maryland,  "[g]ross negligence has been equated with willful and wanton misconduct, a wanton or reckless disregard for human life or for the rights of others." Wright v. Carrol Cnty. Bd. of Educ., ELH-11-3103, 2012 WL 1901380, at *13 (D. Md. 24, 2012) (quoting White v. King, 223 A.2d 763 (Md. 1966) (quotation marks omitted). Gross negligence has also been described as "[a]n intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them." Taylor v. Harford Cnty. Dep't of Soc. Servs., 862 A.2d 1026, 1034 (Md. 2004). Additionally, Maryland courts have not only stated that gross negligence "implies malice and evil intention, " Bannon v. B&O. R.R. Co., 24 Md. 108, 124 (1866), but have also required that malice be alleged as part of a claim of gross negligence. See, e.g., Foor v. Juvenile Servs. Admin., 552 A.2d 947, 956 (Md.App. 1989) (dismissing gross negligence claims where the complaint was devoid of any allegations as to malice on the part of defendants). Finally, this Court has recently held that to state a claim for gross negligence, "bald and conclusory allegations will not suffice; specificity is required." Wright, 2012 WL 1901380, at *13 (dismissing a gross negligence claim for failure to state a claim because plaintiffs alleged in a conclusory manner that "defendants, generally, were to the lex loci delicti doctrine, which applies the law of the state where the alleged injury occurred. Laboratory Corp. of America v. Hood, 911 A.2d 841, 845 (Md. 2006). aware that their conduct was insufficient to protect [plaintiff]. But, the Complaint contain[ed] no facts to support that assertion.").
As in Wright and Foor, Plaintiff MTB has failed to state a claim for gross negligence in this case. Plaintiff makes general and conclusory allegations concerning the unspecified employees and or agents who allegedly failed to sufficiently inspect the scaffolding on which the Lift was to be placed or transported and who should have known that the scaffolding was insufficient. Plaintiff also repeats on several occasions in a conclusory manner that Tuckman-Barbee's actions were "grossly negligent, wanton and reckless." Moreover, the Complaint is utterly devoid of any allegations as to malice on the part of Tuckman-Barbee, its employees or agents. Finally, much as in Foor, Plaintiff's attempt to "throw in the term gross negligence'" in what appears to be a negligence claim, is simply "not enough" to state a claim for gross negligence. Foor, 553 A.2d at 956. Because Plaintiff fails to state a claim for gross negligence under Maryland law, amending the complaint would amount to futility. See Katyle, 637 F.3d at 471. Accordingly, Plaintiff MTB's Motion for Leave to File Amended Complaint is DENIED.
Plaintiff MTB has also sought Leave to File a Surreply to Defendant Tuckman-Barbee's Motion for Summary Judgment. The Surreply, were it to be allowed by the Court, would seek to make further arguments concerning the issue of waivers of subrogation in the context of a gross negligence claim. In general, parties are not permitted to file surreplies. Local Rule 105.2(a) (D. Md. 2011). A party moving for leave to file a surreply must show a need for a surreply. Id. If a defendant raises new legal issues or new theories in its reply brief, there is a basis to permit a plaintiff to file a surreply. TECH USA, Inc. v. Evans, 592 F.Supp.2d 852, 862 (D. Md. 2009); Interphase Garment Solutions, LLC v. Fox Television Stations, Inc., 566 F.Supp.2d 460, 466 (D. Md. 2008). Moreover, "[s]urreplies may be ...