36 | May/June 2022 | BAEC Bulletin
BY KEVIN M. HOGAN AND SEAN C. MCPHEE Western District Case Notes
Motion to Amend In Orange Transportation Services, Inc., et al. v. Volvo Group North America, LLC , No. 19-cv-6289-FPG (Dec. 22, 2021), defendant objected to a Decision and Order of the Magistrate Judge granting plaintiff a motion to amend the complaint to add fraud claims by a second plaintiff. The two plaintiffs were sister companies. They alleged that defendant fraudulently induced them into purchasing a number of semi-trucks that defendant knew had defective engines. Soon after the purchase, however, one plaintiff transferred ownership of the trucks it was induced to buy to the other plaintiff. Defendant objected to the Decision granting plaintiffs leave to amend the complaint to add fraud claims based on those transferred vehicles. The District Court agreed with the objection and vacated the Decision and Order. The Court held that the proposed Second Amended Complaint did not contain any plausible allegation that the second plaintiff, who owned the vehicles for only a short period of time before their transfer to the sister corporation, had suffered any damages, a required element of a fraud claim under New York law. The Court acknowledged that Rule 9(b) does not require a claimant to plead injury with particularity even in a fraud claim, and that courts routinely hold that plaintiffs need not plead exactly how they were damaged or the measure by which any damages should be calculated. But here, according to the Court, the issue was not that the second plaintiff had failed to allege precisely how it was injured, but rather that it had not alleged that it was injured at all. Plaintiffs resorted to a group pleading—where the allegations relating to damages were vaguely asserted with respect to the plaintiffs collectively—to no avail. The proposed amended complaint did not include any allegation specifying what damages the second plaintiff incurred while it owned the trucks and that were caused by the fraud. The proposed claim, therefore, was futile and leave to amend the complaint should be denied, even though such leave normally is freely given when justice so requires. Federal Tort Claims Act In Rodriguez v. U.S. , 17-cv-00251-WMS-JJM (Dec. 14, 2021)—a case under the Federal Tort Claims Act stemming from a United States Postal Service van colliding with the police patrol car that plaintiff was driving—plaintiff moved to increase the ad damnum clause in his complaint from $4 million to $7 million due to the discovery of a concealed tear in his left shoulder, as well as a permanent disability designation. In evaluating the motion, the Court noted that an action under the Federal Tort Claims Act may not be commenced until after the claim is presented to the appropriate federal agency, and thereafter a plaintiff may not seek a sum in excess of the amount of the claim
KEVIN M. HOGAN Managing Partner Phillips Lytle LLP
SEAN C. MCPHEE Partner Phillips Lytle LLP
Powered by FlippingBook