# Rivera v. Robinson

> District Court, E.D. Louisiana · June 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10185611

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** June 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MELISSA RIVERA, ET AL. CIVIL ACTION
VERSUS NO: 18-14005
JENNIFER ROBINSON, ET AL. SECTION: “S” (4)
ORDER
Before the Court is Plaintiffs’ Motion for Leave to File Second Supplemental and
Amending Complaint to Add Claim for Negligent Entrustment (R. Doc. 131) seeking leave to
file a Supplemental and Amending Complaint, to add a claim against Defendant Church of the
King for negligent entrustment of an automobile. This motion is opposed. R. Doc. 147. This
motion was set for submission on June 3, 2020 and was heard on the briefs.
I. Background
Plaintiffs Melissa Rivera and Ricardo Sr. filed this action in diversity in the District Court
on December 20, 2018, as biological parents to deceased son, Ricardo Silva, Jr., for wrongful death
and survival damages. R. Doc. 2, p. 1. This action involves a motor vehicle accident. At
approximately 5:54 p.m. on the evening of August 25, 2018, Ricardo Silva, Jr. stopped at a traffic
light, and on his sport bike motorcycle, was struck by Defendant Jennifer Robinson, an employee
running an errand for the Church of the King, Inc. (“Church of the King”). R. Doc. 2, p. 1-2. This
collision resulted in the death of Ricardo Silva, Jr. R. Doc. 2, p. 2. The Plaintiffs allege, inter alia,
the accident occurred as Defendant Robinson was careless, reckless, distracted, had her vision
obstructed, and failed to look for and yield to oncoming traffic. R. Doc. 2, p. 1-2 and p. 4.
On August 27, 2019, Plaintiffs filed their first amended and supplemental complaint to
specifically pled that Defendant Robinson was under the influence of prescription medication at
the time of the accident. R. Doc. 78. On October 30, 2019, the Court entered an Amended
Scheduling Order establishing November 29, 2019 as the pleading amendment deadline. R. Doc.
104.
On May 13, 2020, Plaintiffs filed this instant motion for leave to file a supplemental and
amended petition for damages to allege a new cause of action, negligent entrustment, against
Defendant Church of the King. R. Doc. 131. Plaintiffs contend that in the process of conducting

discovery new facts came to light that give rise the newly asserted cause of action, namely that
Defendant driver Jenifer Robinson suffered significant vision loss in her left eye at the time of the
accident. R. Doc. 131-1. Plaintiffs ultimately suggest good cause exist to allow the amendment in
light of this discovery and as there is no undue delay, bad faith, or dilatory motive in Plaintiffs’’
request. Id. As such, Plaintiff seeks the Court grant this motion. Id.
Defendants oppose this motion and contend that Plaintiffs have not established good cause
for failing to amend their Petition with the deadline set by the Amended Scheduling Order. R. Doc.
147. Defendants also contend that Plaintiff waiting until the end of the discovery period to seek
discovery into Defendants eye condition is suggestive of a dilatory motive and the prejudice they

will suffer as a result of this amendment is high and not easily curable by any extension of
deadlines. Id. As such, Defendants seek the Court deny this motion. Id.
II. Standard of Review
Generally, Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings
before trial. Rule 15(a) allows a party to amend its pleadings “only with the other party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Moreover, the Rule urges that the Court
“should freely give leave when justice so requires.” Id. In taking this liberal approach, the Rule
“reject[s] the approach that pleading is a game of skill in which one misstep by counsel may be
decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper
decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48 (1957).
“Rule 15(a) requires a trial court ‘to grant leave to amend freely,’ and the language of this
rule ‘evinces a bias in favor of granting leave to amend.’” Jones v. Robinson Prop. Grp., 427 F.3d
987, 994 (5th Cir. 2005) (internal quotations marks omitted) (quoting Lyn–Lea Travel Corp. v.

Am. Airlines, 283 F.3d 282, 286 (5th Cir.2002)). When denying a motion to amend, the court must
have a “substantial reason” considering such factors as “‘undue delay, bad faith or dilatory motive
on the part of the movant, repeated failures to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party . . . and futility of the amendment.’” Marucci
Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (quoting Jones,
427 F.3d at 994).
An amendment is deemed to be futile if it would be dismissed under a Rule 12(b)(6)
motion. Id. (citing Briggs v. Miss., 331 F.3d 499, 508 (5th Cir 2003)). “It is well-established, of
course, that the Rule 12(b)(6) analysis necessarily incorporates the federal pleading standard

articulated in Bell Atlantic Corp. v. Twombly: ‘To pass muster under Rule 12(b)(6), [a] complaint
must have contained ‘enough facts to state a claim to relief that is plausible on its face.’” Int’l
Energy Ventures Mgmt., L.L.C. v. United Energy Grp., 818 F.3d 193, 200 (5th Cir. 2016). As such,
the Court must accept all well-plead facts as true and view them in the light most favorable to the
non-moving party. Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467
(5th Cir.2004) (internal quotation omitted). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Where viability of a
claim is at least facially possible, futility does not provide grounds for denying an amendment.
Jaso v. The Coca Cola Co., 435 F. App'x 346, 353–54 & n. 6 (5th Cir.2011).
“[T]he Fifth Circuit [has] clarified that when, as here, a scheduling order has been issued
by the district court, Rule 16(b) governs amendment of pleadings.” Royal Ins. Co. of America v.
Schubert Marine Sales, 02–0916, 2003 WL 21664701, at *2 (E.D. La. July 11, 2003) (Englehardt,

J.) (citing S & W Enterprises, L.L.C. v. Southtrust Bank of Ala., 315 F.3d 533, 535–36 (5th Cir.
2003)). Rule 16(b) limits changes in the deadlines set by a scheduling order “only for good cause
and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). To determine if good cause exists as to
untimely motions to amend pleadings, the Court should consider: “(1) the movant's explanation
for its failure to timely move for leave to amend; (2) the importance of the amendment; (3) the
potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure
that prejudice.” Schubert Marine Sales, 2003 WL 21664701, at *2 (citing S & W Enterprises, 315
F.3d at 536). If the movant can show good cause, the Court will then apply the liberal standards of
Rule 15(a). S&W Enterprises, 315 F.3d at 536.

III. Analysis
As noted above, the pleading deadline imposed by the Scheduling Order lapsed without
extension. See R. Doc. 104. Thus, Rule 16(b) governs amendment of pleadings in this matter, and
Plaintiffs must establish “good cause” for their untimely amendment before the liberal Rule 15(a)
standard applies.
A. Rule 16(b)
In determining whether good cause exists to allow amended pleadings outside the
November 29, 2019 deadline imposed by the Scheduling Order (R. Doc. 104), the Court first
considers movants’ explanation for its failure to timely move for leave to amend. Schubert Marine
Sales, 2003 WL 21664701, at *2.
Plaintiff contends that it did not timely move for leave to amend where this amendment is
prompted through the discovery of new information through various discovery devices. R. Doc.
131-1, p. 1. Specifically, in the January 6, 2020 deposition of Defendant Robinson Plaintiffs

discovered that she had to wear a contact in her left eye and that she had, since the time of the
accident, failed her eye exam for her state drivers license renewal. R. Doc. 131-1, p. 2; see also R.
Doc. 131-3. As a result of this information, Plaintiffs probed deeper into Defendant Robinson’s
eye issues through requesting Robinson’s optometric records. Id. Those records indicated that
Robinson had suffered significant vision loss and had complained of blurred vision since May 22,
2018. Id. In addition, those records indicated that on June 1, 2018, approximately three months
prior to the fatal crash, Defendant Robinson was diagnosed with retinal detachment.1 Id.
Defendants contend that Plaintiffs explanation of discovering Robinson’s optometric
records does not support a finding of good cause where Plaintiffs did not seek any information

regarding Robinson’s ability or inability to see, i.e., whether Robinson wore glasses, had ever
undergone eye surgery, or suffered any kind of vision problem. R. Doc. 147, p. 3. Defendants also
contend that Plaintiffs did not expeditiously seek to discover this information once it became
known Robinson had an eye issue. R. Doc. 147, p. 9. Defendants finally contend that this
amendment is not timely where Plaintiffs could have added the claim of negligent entrustment as
soon as they became aware of Robinson’s use of Vyvanse and Celexa. R. Doc. 147, p. 10.

1 Retinal detachment is a serious eye condition that happens when the retina—a layer of tissue at the back of
one’s eye that processes light—pulls away from the tissue around it. Doctors also call it detached retina. Since the
retina cannot work properly when this happens, people afflicted with detached retinas can suffer permanent vision
loss if they do not get it treated right away. https://www.webmd.com/eye-health/eye-health-retinal-detachment#1, last
visited June 16, 2020.
Here, the Court starts with the notion, as courts in this circuit have held, “[n]ewly
discovered information acquired through discovery . . . constitute[s] good cause for an untimely
leave to amend under Rule 16.” Rivera v. Robinson, No. CV 18-14005, 2019 WL 4024939, at *2
(E.D. La. Aug. 27, 2019) (citing Bayou Liberty Prop., LLC v. Best Buy Stores, LP, 2015 WL
1415704, at *2 (E.D. La. Mar. 27, 2015)). The Court also notes that, after Plaintiff filed a Motion

to Compel Production of Jennifer Robinson's Prescription Records (R. Doc. 83), in which the Court
conducted in camera review of her prescription medications, on January 3, 2020, the Court entered
an order releasing the records. R. Doc. 114. In that order, the Court notes Defendant Robinson’s
use of Prolensa Ophthalmic (used to treat inflammation and pain in the eye after cataract surgery)
and Durezol Ophthalmic (used to treat swelling and pain after eye surgery). R. Doc. 114, p. 10.
The Court also noted that on June 7, 2019 Defendant Robinson did not indicate any consumption
of eye medication prescriptions in response to Plaintiffs’ Interrogatory No. 13 which specifically
sought her list which the medications she consumed within seventy-two (72) hours of the accident.
R. Doc. 114, p. 11; see also R. Doc. 83-6. Based on the Court’s understanding, the release of those

record to Plaintiff, after January 3, 2020, would have been the first time Plaintiffs became aware
of the fact that Defendant Robinson potentially suffered from any vision impairment issues.
In addition, as Defendants concede, during the deposition of Robinson on January 6, 2020,
Plaintiff inquired, albeit not extensively, into Robinson’s potential vision problems. R. Doc. 147,
p. 5. Following the deposition, Plaintiffs propounded a Request for Production seeking a release
of Robinson’s records from Defendant’s Ophthalmologist, Dr. Satya Reddy. Id. After Defendants
objected to the substantive and temporal scope, Plaintiffs and Defendants were finally able to agree
to a release on April 6, 2020. Id. On April 30, 2020 Plaintiffs received those records. R. Doc. 147,
p. 6. Less than two weeks after Plaintiffs were in receipt of these records to establish an evidentiary
good faith basis for bringing a new cause of action, on May 13, 2020, the Plaintiffs filed the instant
motion seeking leave to amend their petition for damages in light of that discovery. See R. Doc.
131. Nothing to the Court suggests that Plaintiffs were not diligent in seeking to uncover the
information which gave rise to this additional cause of action.2 As such, the Court finds that
Plaintiffs have articulated a valid explanation for its untimely proposed amended complaint. See

EPL Oil & Gas, Inc. v. Tana Expl. Co., LLC, No. CV 18-00757, 2018 WL 4489287, at *3 (E.D.
La. Sept. 17, 2018) (finding good cause and valid explanation existed where party only learned of
facts supporting the claims after the amendment deadline). As such, the Court only weighs this
factor in favor of allowing the amendment.
Next, the Court considers the importance of the amendment. Schubert Marine Sales, 2003
WL 21664701, at *2. Defendant concedes that the amendment is important. R. Doc. 147, p. 11
(“This amendment is likely important to Plaintiffs’ case.”). Generally, where “newly acquired
evidence may establish Defendants’ liability under an alternative theory,” “the importance of the
proposed amendment also weighs in favor of a “good cause.’” Rangel v. Gonzalez Mascorro, No.

CV L-10-104, 2011 WL 13353220, at *3 (S.D. Tex. Aug. 19, 2011) (finding good cause existed
to amend pleading deadline where deposition testimony established cause of action for negligent
entrustment).
In addition, Plaintiffs risk being unable to litigate these new claims to where “new claims,
although premised on a different theory of liability, arise out of the same transaction.” Luevano v.
Glaser Trucking Serv., Inc., No. 5:14-CV-88-DAE, 2015 WL 1566050, at *3 (W.D. Tex. Apr. 8,

2 The Court, here, also rejects any notion by the Defendants that Plaintiffs needed to be clairvoyant about
Robinson’s potential vision problems or that Defendants did not vigorously pursue discovery because they only sought
the records through a request for production as opposed to also propounding any additional interrogatories, especially
where Defendant did not indicate usage of eye medication in response to Plaintiff’s Interrogatory No. 13 on June 7,
2019.
2015) (stating Plaintiffs can be barred from ever bringing claims in collateral or subsequent law
suit and discussing res judicata and convenience of trial); see also La. Civ. Code Ann. art. 3492
(“Delictual actions are subject to a liberative prescription of one year.”). Where a party is precluded
from litigating a claim, the Court should find the evidence supports a finding of good cause. Id.
Here, the accident occurred on August 25, 2018. As a wrongful death case, sitting in

diversity, Louisiana law governs. See Luevano, 2015 WL 1566050, at *3 (“federal court sitting in
diversity must apply the substantive law of the forum state.”). Here, Plaintiffs can relate back their
negligent entrustment claim to the original filing of their complaint in federal court on December
20, 2018. However, it is not likely that Plaintiffs would be able to bring a separate suit to bring
this new cause of action nearly two years after the accident. Adding the new cause of action then
must be considered important for the complete resolution of the claims. As such, the Court weighs
this factor heavily in favor of allowing the proposed amendment.
Third, the Court considers the potential prejudice in allowing the amendment. Typically,
when a party seeks to plead a new cause of action or different parties, so close to the end of the

discovery period, that fundamentally alter the nature of the case, the Court should find undue
prejudice supports denial of the amendment. See, e.g., Urbino v. Associated Bldg. Servs., L.L.C.,
No. CV 18-4006, 2018 WL 4775006, at *2 (E.D. La. Oct. 3, 2018). However, the Fifth Circuit has
clarified that an amendment that alleges the new cause of action that “merely propos[es] alternative
legal theories for recovery on the same underlying facts” should be generally permitted. Mayeaux
v. Louisiana Health Serv. & Indem. Co., 376 F.3d 420, 427 (5th Cir. 2004) (“Amendments that fall
into the former category generally should be permitted, as they advance Rule 15(a)’s policy of
promoting litigation on the merits rather than on procedural technicalities.”).
Here, the Court does not find the “late tendered amendments involve new theories of
recovery.” Id. Since this case has been instituted, Plaintiffs have pursued this case under the theory
that Defendant Robinson was a negligent and distracted driver. What caused Robinson to be
negligent and distracted—whether prescription medication or retinal detachment—has evolved
through the course and scope of discovery. At this point, while the Court believes that additional

discovery will be necessary to support or defendant against Plaintiffs’ new cause of action,
negligent entrustment, the Court is of the opinion that the remaining discovery would not be
inordinately extensive. See also R. Doc. 77, p. 4 (permitting proposed amendment because” the
proposed amendment comprises a claim sounding in negligence, so it does not require a major
revision to defendant’s trial strategy.’). Notwithstanding, subsequent to filing this motion, motions
for partial summary judgement have been filed in this case. See Rangel, 2011 WL 13353220, at
*3 (filing of dispositive motions such as motions for summary judgment is indicative of undue
prejudice). As such, the Court weighs this factor only slightly in favor allowing the proposed
amendment.

Finally, the Court considers “the availability of a continuance to cure that prejudice.”
Schubert Marine Sales, 2003 WL 21664701, at *2. Here, the Scheduling Order controlling this
case states “[c]ontinuances will not normally be granted.” R. Doc. 104. The District Judge
presiding over this case has previously granted a motion to continue trial dates and scheduling
deadlines to allow for further discovery. See R. Doc. 100 and 101. As such, the Court is of the
opinion that the District Judge would likely permit limited discovery to support this cause of action
beyond the deadlines imposed in this case to cure any prejudice to the Defendants. As such, the
Court finds this factor supports permitting the proposed amendment.
Accordingly, considering the totality of Rule 16(b) factors, the Court finds good cause
exists for this untimely amendment. The Court now proceeds to a review of Rule 15(a)’s liberal
pleading standards, and, specifically, for futility.
C. Rule 15(a)
As an initial matter, the Court notes that there is no evidence of “‘undue delay, bad faith or

dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments
previously allowed, [or] undue prejudice to the opposing party.’” Marucci Sports, LLC v. Nat’l
Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (quotations omitted). Moreover, “Rule
15(a) requires a trial court ‘to grant leave to amend freely,’ and the language of this rule ‘evinces
a bias in favor of granting leave to amend.’” Jones, 427 F.3d at 994 (internal quotations marks
omitted) (quoting Lyn–Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002)).
“In Louisiana, owners of motor vehicles are ordinarily not personally liable for damages,
which occur while another is operating the vehicle. Exceptions to this rule occur only when the
driver is on a mission for the owner of the vehicle, when the driver is an agent or employee of the

owner, or when the owner is himself or herself negligent in entrusting the vehicle to an incompetent
driver.” Brown v. Unknown Driver, 2005-0421 (La. App. 4 Cir. 1/18/06), 925 So. 2d 583, 588.
Plaintiffs’ claim for negligent entrustment is based on the following allegations: Jennifer
Robinson is married to Steven Robinson, pastor of Defendant Church of the King; Jennifer
Robinson was formerly, and perhaps currently, an officer of Church of the King; the vehicle
Robison was driving was owned by Church of the King and was used by Jennifer Robinson. See
R. Doc. 131-2. Based on these alleged relationships, Defendant Church of the King then had actual
and or constructive knowledge of Jennifer Robinson’s vision loss. Id. The Court finds these claims
support a claim for negligent entrustment against Church of the King. As such, the Court does not
find this amendment to be futile. As such, given the liberal standard espoused by Rule 15,
combined with the fact that the Court sees no substantial reason to deny the motion, the Court finds
Plaintiffs have met the low bar needed to amend under Rule 15(a).
IV. Conclusion
Accordingly,
IT IS ORDERED that the Plaintiffs Motion for Leave to File Supplemental and
Amending Complaint (R. Doc. 131) is GRANTED.

New Orleans, Louisiana, this 22nd day of June 2020.

KAREN fase
CHIEF UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185611. Public record. Not legal advice.