Rodriguez v. Northern Telecom

• Court: District Court, D. New Hampshire
• Decided: July 10, 1995
• Docket: CV-93-259-SD
• Status: Published

Opinion

Rodriguez v. Northern Telecom CV-93-259-SD 07/10/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Franklyn Rodriguez; Marilda Rodriguez

v. Civil No. 93-259-SD

Northern Telecom, Inc., et al

O R D E R

Plaintiffs Franklyn and Marilda Rodriguez move to amend

their complaint. Document 44. Defendant Northern Telecom, Inc.

(NTT) objects. Document 48.

1. Background

Originally filed in May 1993, this diversity action seeks to

recover damages for personal injuries allegedly sustained by

plaintiff Franklyn Rodriguez. At the time of the accident, said

plaintiff was employed by a contractor for the purpose of

removing asbestos from premises occupied by NTT.

In the course of its travel, this litigation has added and

dropped parties, and the court has issued various rulings on

dispositive motions. As of this writing, the case is scheduled

for final pretrial on July 24, 1995, to be followed by jury selection on August 22, 1995.

The motion at issue seeks to add a count (Count IX) alleging

vicarious liability of Nil for the negligent acts of its alleged

agents Twigg Associates, Inc. (Twigg), and Scott Lawson Group,

Ltd., d/b/a Applied Occupational Health Systems (AOHS). A

secondary amendment is sought to change the date of the alleged

accident from May 30, 1990, to "on or around June 4, 1990."

2. Discussion

Twigg is no longer a party to this litigation, having been

dismissed by stipulation which was approved on June 20, 1995.

And on June 15, 1995, the court granted NTI's motion for summary

judgment which sought indemnity from AOHS.

Totally apart from the foregoing developments, if the

proposed amendment on vicarious liability is allowed, the case

will probably have to be continued to allow Nil to inguire

further into the "totality of circumstances" which New Hampshire

law reguires in assessing vicarious relationships. See R estatement

(Se c o n d ) A g e n c y § 22 0; Boissonaut v. Bristol Federated Church, 138

N.H. 476, 478, 642 A.2d 328, 329 (1994).

It is well settled that the district court is afforded broad

discretion to grant or deny a motion to amend pleadings. Finnern

v. Sunday River Skiwav Corp., 984 F.2d 530, 536 (1st Cir. 1993).

2 And "it is axiomatic that amendments which unfairly prejudice a

litigant should not be granted." DCPB, Inc. v. City of Lebanon,

957 F.2d 913, 917 (1st Cir. 1992). Here, the court finds that

such unfair prejudice exists by reason of the fact that an amend­

ment at this late stage of the proceedings would reguire a

continuance to allow NTI to properly prepare its defense on the

issue of vicarious liability. Colmenares Vivas v. Sun Alliance

Ins. Co.. 807 F .2d 1102, 1108 (1st Cir. 1986).

Turning to the alleged date of the accident, the defendant

has interposed no objection, and it appears that the date has

surfaced as a result of ongoing discovery. As no prejudice

apparently inures to any of the parties concerning this change of

date, that portion of the amendment will be allowed.

3. Conclusion

For the reasons hereinabove outlined, the court has denied

that portion of the motion to amend which seeks to add Count IX

concerning vicarious liability and has granted the portion of the

motion to amend which seeks to change the date from May 30, 1990,

3 to "on or around June 4, 1990."

SO ORDERED.

Shane Devine, Senior Judge United States District Court

July 7, 1995

cc: Kenneth G. Bouchard, Esq. Dennis L. Hallisey, Esq. Jeffrey S. Cohen, Esq. Robert C. Dewhirst, Esq.