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Veneziale v. Quest Diagnostic

United States District Court, Third Circuit

August 29, 2013




Currently pending before the Court is a Motion by Defendant Quest Diagnostics, Inc. (“Quest”) for Leave to Amend its New Matter Crossclaim. For the following reasons, the Motion is denied.


According to the facts set forth in the Amended Complaint, Plaintiff Carmela Veneziale was referred by her primary care physician to Defendant Quest for bloodwork on August 3, 2009. (Am. Compl. ¶ 7.) Without any explanation or warning, the phlebotomist taking the blood stuck a needle into Plaintiff’s right hand at the middle knuckle on the dorsal side of her hand. (Id. ¶ 9.) In doing so, the phlebotomist purportedly injured Plaintiff’s nerves and nervous system. (Id. ¶ 14.) Although the phlebotomist was the agent or borrowed servant of Defendant Quest, Plaintiff alleges, on information and belief, that the phlebotomist was actually an employee of Defendant Legal Medical Staffing Services (“LMS”). (Id. ¶¶ 10–13.)

On July 29, 2011, Plaintiff instituted suit against both Quest and LMS and, on November 2, 2011, she filed an Amended Complaint. The suit alleges general negligence, as well as negligent hiring, negligent supervision, and battery against both Defendants. (Id. ¶¶ 15–57.) Both Defendants filed Answers, as well as Crossclaims against one another. On July 26, 2013, following multiple amendments of the scheduling order, the Court approved a stipulated stay of the case for sixty days pending mediation and agreed to again extend all discovery deadlines.

On July 17, 2013, Defendant Quest filed a Motion for Leave to Amend its New Matter Crossclaim. Defendant LMS filed a response on July 31, 2013, Quest submitted a “Supplemental Memorandum” in support of its Motion on July 31, 2013, and LMS filed a Sur-reply Brief on August 9, 2013. The matter is now ripe for judicial review.


Federal Rule of Civil Procedure 15(a) sets out the standard for granting leave to amend a pleading when, as is the case here, a responsive pleading has been served: “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a). The Rule clearly states that “[t]he court should freely give leave when justice so requires.” Id. Nonetheless, the policy favoring liberal amendments is not “unbounded.” Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990). The decision whether to grant or to deny a motion for leave to amend rests within the sound discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962); Waterfront Renaissance Assoc. v. Phila., 701 F.Supp.2d 633, 639 (E.D. Pa. 2010). A district court may deny leave to amend a complaint where “it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000) (citing Foman, 371 U.S. at 182).


Defendant Quest’s current Motion argues that, on May 30, 2013, LMS produced to Quest a Fee Agreement Contract (“Contract”) between LMS and Quest. Pursuant to this Contract, which was drafted by LMS and executed by Quest in November 2004, the phlebotomist that allegedly injured Plaintiff was a temporary employee provided by LMS to Quest. Part of the Contract provides that all temporary employees placed by LMS are employees of LMS and covered under LMS’s liability and workers’ compensation policy. (Def. Quest’s Mot. to Amend, Ex. C.) Quest now seeks to amend its New Matter Crossclaim to specifically plead the elements of the Fee Agreement Contract and allege that, in the event Quest is deemed liable to Plaintiff, it is entitled to indemnity or contribution from LMS pursuant to that Contract. (Def. Quest’s Supplemental Mem. Supp. Mot. Amend, Ex. A.) In response, Defendant LMS contends that the Court should deny the proposed amendment on multiple grounds, including failure to attach the proposed pleading, undue delay, prejudice, lack of jurisdiction, and futility.

Upon review of the parties’ briefs, the Court finds that leave to amend is unwarranted and improper for several reasons. First, as a purely procedural matter, where leave of court is required to amend the complaint, the plaintiff must request leave to amend and attach the proposed amended complaint to the request for leave. Fletcher–Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007). Failure to attach the proposed amendment is fatal to the request. Id. at 252–53.

In the present matter, Quest did not attach to its Motion a proposed amended New Matter Crossclaim. Accordingly, when responding to the Motion, LMS had to speculate as to the nature of the amendment in order to formulate its argument. Two weeks after its original Motion-on the same day that LMS identified the deficiency-Quest provided the Court with a Supplemental Memorandum attaching a copy of the proposed New Matter Crossclaim. In this late submission, Quest neither offered an explanation for its initial failure nor acknowledged that its misstep was fatal to its original Motion. Faced with this supplemental submission, LMS was then required to file another brief to respond to the new information. Given the well-settled nature of this procedure rule, the Court cannot simply condone Quest’s failure.

Nevertheless, even were the Court to disregard this error, leave to amend still remains improper due to Quest’s excessive delay in filing the Motion. In the Third Circuit, delay alone does not justify denying a motion to amend. Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001); see also Collins v. City of Gloucester, No. Civ.A.06-2589, 2008 WL 1374213, at *6 (D.N.J. Apr. 9, 2008) (“‘The mere passage of time does not require that a motion to amend a complaint be denied on grounds of delay.’”) (quoting Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984)). Rather, it is only where delay becomes “‘undue, ’ placing an unwarranted burden on the court, or . . . ‘prejudicial, ’ placing an unfair burden on the opposing party” that denial of a motion to amend is appropriate. Adams, 739 F.2d at 868; Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008); Tarkett, Inc. v. Congoleum Corp., 144 F.R.D. 289, 291 (E.D. Pa. 1992). “Implicit in the concept of ‘undue delay’ is the premise that Plaintiffs, in the exercise of due diligence, could have sought relief from the court earlier.” In re Pressure Sensitive Labeldstock Antitrust Litig., No. MDL.03-1556, 2006 WL 433891, at *1 (M.D. Pa. Feb. 21, 2006). As such, the question of undue delay requires the court to focus on the movant’s reasons for not amending sooner, while “bearing in mind the liberal pleading philosophy of the federal rules.” Cureton, 252 F.3d at 273; see also Lindquist v. Buckingham Twp., 106 F.App’x 768, 775 (3d Cir. 2004) (noting that the question of undue delay, as well as the question of bad faith, requires that the court focus on the plaintiff’s motives for not amending their complaint to assert this claim earlier). “Tactical decisions and dilatory motives may lead to a finding of undue delay.” Leary v. Nwosu, No. Civ.A.05-5769, 2007 WL 2892641, at *4 (E.D. Pa. Oct. 2, 2007); see also Cureton, 252 F.3d at 271–74 (finding undue delay where plaintiffs made a tactical decision not to seek leave to amend until after they lost first argument on summary judgment). Notably, “[t]here is no presumptive period in which a motion for leave to amend is deemed ‘timely’ or in which delay becomes ‘undue.’” Arthur v. Maersk, Inc., 434 F.3d 196, 205 (3d Cir. 2006). Rather, “[w]hether delay is undue depends on the facts and circumstances of the case.” Nat’l Recovery Agency, Inc. v. AIG Domestic Claims, Inc., No. Civ.A.05-0033, 2006 WL 1289545, at *4 (M.D. Pa. May 9, 2006). Ultimately, “the obligation of the district court in its disposition of the motion is to articulate the imposition or prejudice caused by the delay, and to balance those concerns against the movant’s reasons for delay.” Coventry v. U.S. Steel Corp., 856 F.2d 514, 520 (3d Cir. 1988).

In the instant matter, LMS asserts that, although the Contract was not produced to Quest as a part of “formal” discovery until May 30, 2013, Quest has conceded that the Fee Agreement Contract was executed by one of its representatives on November 12, 2004, meaning that Quest must have had another copy of the Contract on or about that date. Moreover, LMS avers that it provided a copy of the Contract to Quest on December 1, 2011, after the initiation of the lawsuit. (LMS’s Opp’n Mot. Amend 2.) Given these facts, LMS asserts that Quest unduly delayed by not seeking to amend its New Matter Crossclaim to plead the terms of this Contract until July ...

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