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Macdonald Taylor v. Pathmark Inc.

March 11, 2013

MACDONALD TAYLOR
PETITIONER
v.
PATHMARK INC., ET AL. RESPONDENTS



The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge

MEMORANDUM

I. INTRODUCTION

Plaintiff MacDonald Taylor ("Plaintiff" or "Taylor") filed this personal injury action on December 16, 2011 against Pathmark Inc. and Advanced Snow and Ice Removal ("ASI") arising out of a fall on Defendant Pathmark's property. (Doc. 1.) On May 4, 2012, ASI filed a third party complaint joining Grassman Landscape, Grassman & Son, and Grassman Landscape, Inc. ("Grassman") as third party defendants. (Doc. 8.) Presently before the Court is ASI's Motion for Summary Judgment (Doc. 31), Plaintiff's Response thereto (Doc. 34), as well as "Plaintiff's Motion for Leave to File First Amended Complaint" (Doc. 43), the "Answer of Third Party Defendant[], [Grassman] to Plaintiff's Motion for Leave to File an Amended Complaint" (Doc. 46), and "Defendant's, Advanced Snow and Ice Removal, Answer in Opposition to Plaintiff's Motion for Leave to File First Amended Complaint" (Doc. 47), together with "Plaintiff's Motion for Stay of the Pending Motion for Summary Judgment of the Defendant Advanced Snow and Ice Solutions" (Doc. 44) and the Responses of Defendants Grassman and ASI thereto. (Docs. 45, 48.)

For the reasons set out within, we will grant "Plaintiff's Motion for Leave to File First Amended Complaint," deny "Plaintiff's Motion for Stay Pending Motion for Summary Judgment of Defendant Advanced Snow and Ice Solutions as Moot," and grant the "Motion for Summary Judgment of Defendant, Advanced Snow and Ice Removal" as to Count Two: Breach of Contract.

II. FACTUAL AND PROCEDURAL HISTORY*fn1

The Great Atlantic and Pacific Tea Company ("A&P") entered into a "Snow Plowing Agreement" ("Plowing Agreement") on October 8, 2009 with ASI.*fn2 (Doc. 31 at ¶ 10; Ex. C.) The agreement set out ASI's obligations regarding the removal of snow at various properties affiliated with A&P, including the Pathmark grocery store, located at 421 69th Street, Upper Darby ("Pathmark"). Id.*fn3 It also contained an indemnification clause.*fn4 Id. ASI then entered into an "Independent Contractor's Agreement" ("Grassman Agreement") with Grassman on November, 23, 2009, in which it assigned to Grassman its obligations to Pathmark as set out in the "Plowing Agreement." (Doc. 31 at ¶ 11; Ex. D.)

Taylor alleges that on December 19, 2009, he was walking on a sidewalk outside of the Pathmark store, when he slipped and fell on ice, and sustained injuries including a torn rotator cuff. (Doc. 31 at ¶¶ 3, 4.) On December 16, 2011, he commenced this action against Pathmark and ASI alleging a claim of negligence as to Pathmark and a claim of breach of contract as to ASI. (Doc. 1.) In its answer filed on April 30, 2012, ASI asserted a cross-claim against Pathmark and on May 4, 2012, ASI filed a third party complaint to join Grassman Landscape, Grassman & Son, and Grassman Landscape, Inc. ("Grassman") as Third Party Defendants. (Docs. 5, 8.)

Pathmark filed a "Notice of Discharge and Release" on June 5, 2012, advising that A&P and its listed affiliates, including Pathmark, had filed for Chapter 11 protection in the United States Bankruptcy Court for the Southern District of New York, resulting in "a permanent injunction against the commencement or continuation of an action, the employment of process, or an act to collect, recover, or offset any debt that is discharged or released under the plan." (Doc. 11 at 3.) On July 10, 2012, a default judgment was entered in favor of ASI against Grassman. (Doc. 13.) ASI filed this Motion for Summary Judgment on December 13, 2012 and Plaintiff filed his Response on January 8, 2012. (Docs. 31, 34.) Third party Defendant Grassman subsequently filed a motion to "Strike or Set Aside Default," with an accompanying stipulation signed by counsel for ASI consenting to having the default judgment order against Grassman vacated. (Doc. 37.) The stipulation was "so ordered" on February 4, 2013. (Doc. 40.) On February 14, 2013, Plaintiff filed a "Motion for Leave to File First Amended Complaint," and a "Motion for the Stay of the Pending Motion for Summary Judgment of the Defendant Advanced Snow and Ice Solutions." (Docs. 43, 44.) Defendants ASI and Grassman each filed responses in opposition to these two motions. (Docs. 45, 46, 47, 48.)

These matters are now ripe for review.

III. DISCUSSION

In the interest of efficiency, we will address all pending motions in this memorandum opinion and order. We will first address Plaintiff's Motion for Leave to File an Amended Complaint and then turn to Defendant ASI's Motion for Summary Judgment.

A. Plaintiff's Motion for Leave to File an Amended Complaint

In this motion, Taylor requests leave to file an amended complaint in order to include a third count alleging a claim of negligence against ASI. (Doc. 43 at 3.) The first and second counts in his amended complaint are identical to those set out in his original complaint.*fn5 ASI opposes this motion for leave, arguing that there has been "undue delay" and "bad faith" in Plaintiff's filing of the motion; that the amendment would be "futile;" and that it is barred by the applicable statute of limitations. (Doc. 47 at 2, 5-6.) We will first set out the legal standard for granting a motion for leave to amend a complaint and then discuss each of Defendant's contentions in turn.

1. Legal Standard Governing Leave to Amend

A court reviewing a motion for leave to amend a pleading is to "freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). The Supreme Court has held 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 ...


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