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Barbour v. Emkay

August 5, 2011


The opinion of the court was delivered by: Baylson, J.


Plaintiff Carlos Barbour ("Plaintiff") filed a Motion to Amend the Complaint pursuant to Federal Rule of Civil Procedure 15 (ECF No. 21) in this products liability lawsuit. Specifically, Plaintiff's proposed Second Amended Complaint (Ex. O) will replace the Defendant currently identified as "Emkay, Inc. (Illinois)" with new Defendants "Emkay, Inc. (Illinois) a/t/d/b/a Emkay Inc. Trust" and "Emkay Inc. Trust a/t/d/b/a Emkay, Inc. (Illinois)." The other three Defendants will remain the same.*fn1 For the following reasons, the Court will grant Plaintiff's Motion.

I. Factual and Procedural Background*fn2

On November 5, 2008, Plaintiff, a Philadelphia resident, was a passenger in the rear of a commercial armored vehicle, a 2003 Ford E350, VIN# 1FDSE35L53HB83508 ("the 2003 Ford"), leased to Plaintiff's then-employer, Pendum, Inc. d/b/a ATM Acquisition Corp. First Am. Compl. ¶¶ 1,7, 8. The Streit Defendants designed, constructed, assembled, manufactured, distributed, and/or serviced the 2003 Ford, and Defendant Emkay, Inc. (Illinois) owned, leased, and/or designed the 2003 Ford. First Am. Compl. ¶ 7. While Plaintiff's colleague drove the 2003 Ford in Berwyn, Pennsylvania, the 2003 Ford collided with another motor vehicle. First Am. Compl. ¶ 8. The rear passenger safety restraint system failed, causing Plaintiff to suffer severe and debilitating injuries in the collision. First Am. Compl. ¶¶ 8-9.

Plaintiff filed suit in Philadelphia County Court of Common Pleas, Civil Trial Division, November Term, 2010, No. 00723. The First Amended Complaint, filed on February 14, 2011, alleged one count of negligence against Emkay, Inc. (Illinois) and Streit Group of Companies, and one count of strict liability against all Defendants. The Streit Defendants filed a Notice of Removal to the federal district court on March 16, 2011. (ECF No. 1)

On March 29, 2011, Defendant Emkay, Inc. (Illinois) filed its Answer to the Complaint (ECF No. 5), in which it specifically denied that "Emkay, Inc.,"*fn3 "a corporation incorporated under the laws of the state of Illinois," designed, assembled, purchased, distributed, manufactured, serviced, maintained, owned, sold, or leased the 2003 Ford. Answer ¶¶ 2, 7, 20. Emkay, Inc. (Illinois) asserted that "Emkay, Inc. Trust, a Delaware business trust," was the owner and lessor of the 2003 Ford. Answer ¶¶ 2, 7, 20.

On July 8, 2011, Plaintiff filed the Motion to Amend currently before the Court. (ECF No. 21) On July 22, 2011, Defendant Emkay, Inc. (Illinois) filed its response brief. (ECF No. 23)

II. The Parties' Contentions

Plaintiff asserts that at the commencement of the litigation, he sued "the only 'Emkay, Inc.' which was licensed to transact business in the Commonwealth of Pennsylvania, or in the State of Illinois. . . namely, Defendant, Emkay, Inc. (Illinois)." Pl.'s Mot. Amend ¶ 8.*fn4 Service of process was made upon the registered agent for Emkay, Inc. (Illinois), the same registered agent for service for Emkay, Inc. Trust. Pl.'s Mot. Amend ¶ 11. Pursuant to Rule 26 disclosures on April 8, 2011, counsel for Emkay, Inc. (Illinois) sent Plaintiff the unrecorded title for the 2003 Ford identifying the owner as "Emkay Inc. Trust" and reflecting that both entities have the address of 805 W. Thorndale Ave., Itasca, Illinois, 60143. Pl.'s Mot. Amend ¶ 17. Emkay, Inc. (Illinois) also disclosed to Plaintiff the "Emkay Inc. Vehicle Lease Agreement Trac Lease (C) (U.S.A.)" ("the Lease") (Ex. E) and the "Emkay, Inc. Fleet Services Agreement (C)" ("the Agreement") (Ex. F). These documents generically refer to "Emkay, Inc."; list the address 805 W. Thorndale Ave., Itasca, Illinois, 60143; and list "Emkay, Inc. as servicing agent for Emkay, Inc. Trust, a Delaware Business Trust" in the signature block. Pl.'s Mot. Amend ¶¶ 18-20.

Plaintiff asserts that the building located at 805 W. Thorndale Ave., Itasca, Illinois, 60143 is "emblazoned with the singular name 'Emkay,'" and submits a supporting photograph (Ex. G). Pl.'s Mot. Amend ¶ 22. Plaintiff also asserts that the company's website,, refers to itself as "Emkay." Pl.'s Mot. Amend ¶ 23. Furthermore, Emkay, Inc. (Illinois) and Emkay, Inc. Trust share principals, including Gregory Tepas, Andras Vella, and Christopher Tepas. Pl.'s Mot. Amend ¶ 26 (citing Ex. I). Plaintiff avers that it asked counsel for Emkay, Inc. (Illinois) to stipulate to correct the caption, "as is typical and customary in litigation of this nature," but "this request was rejected." Pl.'s Mot. Amend ¶ 30.

Emkay, Inc. (Illinois) responds that counsel does not represent and "cannot advocate on behalf of Emkay, Inc. Trust." Def.'s Resp. at 1. However, Emkay, Inc. (Illinois) filed a response brief to address Plaintiff's "inaccurate statements and allegations" and "mischaracterizations of documents," and to refute "Plaintiff's argument that Emkay, Inc. Trust could not be identified. . . prior to initiation of this litigation." Def.'s Resp. at 1-2. For example, Emkay, Inc. (Illinois) contends that Plaintiff could have determined earlier that Emkay Inc., Trust was the registered title owner of the 2003 Ford from the Lease and Agreement, from the police report for the accident, or from a vehicle registration search by the Pennsylvania Department of Motor Vehicles. Def.'s Resp. ¶¶ 3, 5, 30.

III. Legal Standard

A. Leave to Amend

Under Federal Rule of Civil Procedure 15(a)(2), the district court should freely give leave to amend a complaint when justice so requires. "Federal Rule of Civil Procedure 15 embodies a liberal approach to pleading" in order to "ensure that an inadvertent error in pleading will not preclude a party from securing relief on the merits of a claim." Arthur v. Maersk, Inc., 434 F.3d 196, 202 (3d Cir. 2006). The United States Supreme Court has explained that "[i]n the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962). See also Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. ...

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