Hartzog v. Cayo, L.L.C.

GUY HARTZOG v. CAYO, L.L.C.

CIVIL ACTION NO. 12-2895

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION "C" (2)

Dated: June 5, 2013

ORDER AND REASONS ON MOTION

Local Rule 7.5 of the Eastern District of Louisiana requires that memoranda in opposition to a motion be filed and served no later than eight days before the noticed submission date. No memorandum in opposition to defendant's Amended Motion for Leave to File Third-Party Complaint, Record Doc. No. 17, submitted for decision on June 3, 2013 without oral argument, has been timely submitted. Although this motion would ordinarily be deemed to be unopposed in such circumstances, defendant, Cayo, L.L.C., asserts that plaintiff, Guy Hartzog, "does not oppose the filing of Cayo's Third-Party Complaint in principle, but does object to the extent filing same would cause a prolonged and indefinite continuance of trial." Id. at p. 1. Because I find that the proposed amendment would result in just such a delay, I consider the motion opposed.

Cayo seeks leave to add as third-party defendants two physicians who treated plaintiff and the hospital where he was treated, after he was injured in the maritime accident that gave rise to his Jones Act negligence and general maritime claims against Cayo in the instant case. Defendant alleges that the physicians and hospital may have negligently caused or contributed to Hartzog's injuries and damages, so that Cayo maybe entitled to contribution from the proposed third-party defendants for some of the damages, if any, that are awarded to plaintiff. Cayo seeks to assert third-party claims for contribution against the physicians and hospital, based on medical malpractice. For the following reasons, IT IS ORDERED that the motion is DENIED.

The policy of the Federal Rules of Civil Procedure is liberal in favor of permitting amendment of pleadings, and Rule 15(a) evinces a bias in favor of granting leave to amend. Unless there is a substantial reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial. Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir. 2000) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994); Martin's Herend Imports, Inc. v. Diamond & Gem Trading U.S. Am. Co., 195 F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597-98 (5th Cir. 1981)). Thus, "[t]he court should freely give leave when justice so requires," Fed. R. Civ. P. 15(a)(2), but such leave "is by no means automatic." Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to consider include "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, and futility of amendment." Id.

In addition, however, motions for leave to file third-party complaints are governed by Fed. R. Civ. P. 14(a), and "[t]he district court is accorded 'wide discretion in determining whether to permit such third party procedure . . . .'" McDonald v. Union Carbide Corp., 734 F.2d 182, 183 (5th Cir. 1984) (quoting S. Ry. v. Fox, 339 F.2d 560, 563 (5th Cir. 1964)) (emphasis added). In exercising this wide discretion, courts have considered a number of factors, including effectuating the purposes of Rule 14 (avoiding circuity of action and eliminating duplication of suits on closely related matters); whether other parties will be prejudiced; the unreasonableness of delay by the party asserting the third-party complaint; lack of substance to the third-party claim, and whether the action will become unduly complex or unduly delayed by permitting the impleader. 6 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1443 at 351-67 (West 2010).

In this instance, defendant's motion is timely, having been filed before the deadline for amendments and third-party actions set in the court's extended scheduling order. Record Doc. No. 13. In this case, Cayo's motion for leave to file a third-party complaint was submitted to the Clerk of Court electronically on May 6, 2013, the deadline date set by the presiding district judge for amending pleadings and adding third parties. Record Doc. Nos. 13 and 15. The Clerk of Court rejected the filing as "deficient" and required that the motion be re-filed. Refiling in compliance with the Clerk's requirements occurredeight (8) days later, on May 14, 2013, when defendant filed an amended motion for leave to file a third-party complaint. Record Doc. No. 17. "The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice." Fed. R. Civ. P. 5(d)(4). In addition, "[a] local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply." Fed. R. Civ. P. 83(a)(2). The Fifth Circuit has recognized that this court's local electronic filing requirements are such rules and that the filing date for timeliness purposes under these circumstances is the earlier "deficient" filing date. Darouiche v. Fid. Nat'l Ins. Co., 415 F. App'x 548, 552 (5th Cir. 2011). The motions must therefore be considered timely filed.

Since the motions were timely filed, I cannot find any undue delay or dilatory motive by Cayo. There is no indication of bad faith. This is the first amendment filed by defendant, so that there has been no failure to cure pleading deficiencies by prior amendment. Ample time remains before the scheduled trial date, so that no undue prejudice to the other parties would be expected to result from permitting the amendment.

More significantly, however, the proposed third-party complaint is futile. Cayo seeks to assert medical malpractice claims against the proposed third-party defendants as a means of establishing its own non-contractual contribution claims against plaintiff'smedical care providers, based upon their alleged negligence in their medical treatment of plaintiff. "[S]tate law . . . controls in cases such as this." Joiner v. Diamond M Drilling Co., 688 F.2d 256, 261 (5th Cir. 1982).

Under the Louisiana Medical Malpractice Act, no such claim may be asserted in any court against the doctors and hospital whom Cayo seeks to name in the third-party complaint until Cayo has submitted its medical malpractice claim to a medical review panel and the panel has reviewed the claim and rendered its expert opinion. La. Rev. Stat. § 40:1299.47(A)(1)(a); Williams v. Notami Hosps. of La., Inc., 927 So. 2d 368, 372 (La. App. 1st Cir. 2005). The Medical Malpractice Act "appl[ies] to claims brought by 'a patient, a patient's representative on the patient's behalf, or other persons having claims arising from injuries to or death of a patient.'" Atkinson v. Lammico Ins. Co., 63 So. 3d 1176, 1184 (La. App. 3d Cir. 2011) (quoting Hutchinson v. Patel, 637 So. 2d 415, 422 (La. 1994)).

Thus, the medical review procedure is required, not only when an injured patient seeks to recover from his qualified healthcare provider for medical malpractice, but also when, as here, a third party seeks to recover from a healthcare provider for the effects of the provider's medical negligence on the patient, but the patient has not invoked the medical review process. Thomas v. LeJeune, Inc., 501 So. 2d 1075, 1077 (La. App. 2dCir. 1987), overruled in part on different grounds by Hutchinson, 637 So. 2d at 426; accord Voorhies v. Admin'rs of Tulane Educ. Fund, No. 11-3117, 2012 WL 1672748, at *9 (E.D. La. May 14, 2012); Zoblotsky v. Tenet Choices, Inc., No. 03-2957, 2007 WL 2670110, at *5 (E.D. La. Sept. 7, 2007); Hutchinson, 637 So. 2d at 426 n.15; Bolden v. Dunaway, 727 So. 2d 597, 601-02 (La. App. 1st Cir. 1998); Jones v. Scriber, 716 So. 2d 905, 906 (La. App. 2d Cir. 1998).

Medical malpractice claims that are asserted in a court before the completion of the peer review process must be dismissed as premature. Voorhies, 2012 WL 1672748, at *9 (citing La. Code Civ. Proc. art. 933; Bennett v. Krupkin, 814 So. 2d 681, 685 (La. App. 1st Cir. 2002)); Zoblotsky, 2007 WL 2670110, at *5; Williams, 927 So. 2d at 372-73 (citing Spradlin v. Acadia-St. Landry Med. Found., 758 So.2d 116, 119 (La. 2000); McKnight v. D & W Health Services, Inc., 873 So. 2d 18, 20 (La. App. 1st Cir. 2003); Dunn v. Bryant, 701 So. 2d 696, 699 (La. App. 1st Cir. 1997)).

Under these circumstances, it would be futile to permit the assertion of clearly premature medical malpractice claims that would have to be dismissed as soon as the newly added third-party defendants filed a responsive Rule 12 motion.

The motion fares no better under the Rule 14 standard. In its proposed third-party complaint, Cayo invokes Rule 14(c), which "permits a defendant [in an admiralty ormaritime case] to implead a third-party defendant for two purposes: (1) to seek contribution or indemnification from the third-party defendant, and (2) to tender the third-party defendant to the plaintiff." Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 242-43 (5th Cir. 2009) (citing Fed. R. Civ. P. 14(c); Tex. A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 399-400 (5th Cir. 2003)). However, Rule 14(c) also "requires the third-party plaintiff (1) to assert an action sounding admiralty or maritime, (2) that arises out of 'the same transaction, occurrence, or series of transactions or occurrences' as the plaintiff's original claim, and (3) over which the district court has jurisdiction." Id. (emphasis added). Because the Fifth Circuit requires that, "under Rule 14(c), the third-party plaintiff 'assert an action sounding in admiralty or maritime' law . . . , [the proposed third-party defendant] cannot be a proper Rule 14(c) party unless [plaintiff's or defendant's] claims against it arise under admiralty or maritime law." Duet v. Falgout Offshore, LLC, No. 09-3321, 2010 WL 1817766,...