FAIELLA v. SUNBELT RENTALS, INC.

[D.I. 83]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

DOMINIC FAIELLA, Civil No. 18-11383 (RMB/AMD)

Plaintiff,

v.

SUNBELT RENTALS, INC.,

Defendant.

-----------------------------

SUNBELT RENTALS, INC.,

Defendant/Third-Party

Plaintiff,

v.

MEMORANDUM OPINION AND ORDER

LIVE NATION WORLDWIDE, INC.,

Individually and d/b/a LIVE

NATION BB&T PAVILION,

Third-Party Defendant.

APPEARANCES:

Anthony J. Leonard, Esq.

Leonard, Sciolla, Hutchison,

Leonard & Tinari, LLP

713 East Main Street, Suite 1A

Moorestown, NJ 08057

Counsel for Dominic Faiella

Thomas J. Wagner, Esq.

Amy Lynn Wynkoop, Esq.

Law Offices of Thomas J. Wagner, LLC

8 Penn Center, 6th Floor

1628 John F. Kennedy Blvd.

Philadelphia, PA 19109

Counsel for Sunbelt Rentals, Inc.

Drew J. Parker, Esq.

Deborah Halpern, Esq.

Parker Young & Antinoff, LLC

2 Eves Drive, Suite 200

Marlton, NJ 08053

Counsel for Live Nation Worldwide, Inc.,

Individually and d/b/a Live Nation BB&T Pavilion

DONIO, MAGISTRATE JUDGE:

This matter comes before the Court by way of Plaintiff’s

motion for leave to file an amended complaint to add Third-Party

Defendant Live Nation Worldwide, Inc. (hereinafter, “Live Nation”)

as a direct defendant in this litigation, to assert an intentional

tort claim against Live Nation, and to amend the claims against

Defendant Sunbelt Rentals, Inc. (hereinafter, “Sunbelt”) to assert

an implied warranty count. (See Pl.’s Mot. [D.I. 83], p. 5, June

7, 2019; Proposed Am. Compl. [D.I. 83], p. 14.) Defendant Sunbelt

consents to the proposed amendments. (Pl.’s Mot. [D.I. 83], p. 5.)

Live Nation opposes the motion as untimely, prejudicial, and

futile. (Live Nation’s Opp’n [D.I. 85], June 11, 2019.) For the

reasons set forth below, the Court grants Plaintiff’s motion to

amend.

This matter arises out of alleged injuries to Plaintiff

that occurred when an off-road utility vehicle (hereinafter,

“Ranger Polaris,” “Ranger,” or “Polaris”), owned by Defendant

Sunbelt and leased to Live Nation, purportedly rolled over while

Plaintiff was operating the vehicle. Plaintiff asserts severe and

permanent injuries and sets forth a number of state law claims

against Defendant Sunbelt. (Pl.’s Mot. [D.I. 83]; Proposed Am.

Compl. [D.I. 83].) By way of Order dated October 23, 2018, the

Court granted Defendant Sunbelt leave to file a third-party

complaint against Live Nation. (Order [D.I. 31], Oct. 23, 2018.)

On November 2, 2018, Defendant Sunbelt filed its Third-Party

Complaint against Live Nation. (Third-Party Complaint [D.I. 33],

Nov. 2, 2018.) On December 2, 2018, Live Nation filed its Answer

to the Third-Party Complaint. (Answer [D.I. 36], Dec. 2, 2018.) On

March 21, 2019, the Court granted Plaintiff’s motion to amend to

dismiss Defendant Polaris Industries, Inc. from the case, [D.I.

43], and dismissed as moot Defendant Sunbelt’s motion to amend,

[D.I. 44]. (See Order [D.I. 57], Mar. 21, 2019.) On June 7, 2019,

Plaintiff filed the present motion seeking to add Live Nation as

a direct defendant and to assert an intentional tort claim. (Pl.’s

Mot. [D.I. 83].) On June 26, 2019, the Court conducted oral

argument on the present motion. (Minute Entry [D.I. 94], June 27,

2019.)

“Under Federal Rule of Civil Procedure 15(a), leave to

amend pleadings shall be ‘freely give[n]’ when ‘justice so

requires.’” Custom Pak Brokerage, LLC v. Dandrea Produce, Inc.,

No. 13-5592, 2014 WL 988829, *1 (D.N.J. Feb. 27, 2014). A court

may, however, deny a motion to amend “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.’” U.S. ex

rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d

Cir. 2014) (citing Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.

2000)).1

The present motion also implicates Federal Rule of Civil

Procedure 16. “Where deadlines for amending pleadings are the

subject of a scheduling order and the deadlines have passed, the

moving party must meet Rule 16’s good cause standard in order to

amend.” Stolinski v. Pennypacker, No. 07-3174, 2011 WL 13238545,

at *7 (D.N.J. June 23, 2011) (citing Stallings ex. rel. Estate of

Stallings v. IBM Corp., No. 08-3121, 2009 WL 2905471, at *16

(D.N.J. Sept. 8, 2009)). See also Fed. R. Civ. P. 16(b)(4)

(providing that a scheduling order “may be modified only for good

cause and with the judge’s consent.”) “[W]here a party seeks to

1 The Court notes that Federal Rule of Civil Procedure 21 governs an

application seeking to add a party as an additional defendant. Custom

Pak Brokerage, LLC, 2014 WL 988829, *1 (citing cases that note attempts

to add new parties by way of motions to amend invoke Rule 21). “In

evaluating the propriety of an amended pleading pursuant to Federal Rule

of Civil Procedure 21, the Court applies the same ‘liberal[]’ standard

applicable to motions arising under Federal Rule of Civil Procedure

15(a).” Id. (citing Sly Magazine, LLC v. Weider Publ’ns L.L.C., 241

F.R.D. 527, 532 (S.D.N.Y. 2007)); see also Sutton v. New Century

Financial Servs., No. 05-3125, 2006 WL 3676306, at *1 (D.N.J. Dec. 11,

2006) (“Although [p]laintiff seeks to drop one party and add another

pursuant to Rule 21, the same standards apply under Rules 15(a) and 21.”)

(citing Wolfson v. Lewis, 168 F.R.D. 530, 533 (E.D. Pa. 1996)).

Consequently, the Court addresses Live Nations’s argument under the

standard set forth in Rule 15.

amend the pleadings after the expiration of the Rule 16 deadline,

a party must first demonstrate good cause,” and only after the

party has demonstrated good cause will a court “evaluate the

proposed amendment under Rule 15(a).” Stolinski, 2011 WL 13238545,

at *7 (citation omitted) (noting that “establishing good cause to

extend the deadline for amendment under Rule 16 merely removes a

procedural bar for [a party] which then permits the [c]ourt to

consider the motion to amend under Rule 15.”). See also Ewing v.

Cumberland Cnty., No. 09-5432, 2014 WL 3974159, at *4 (D.N.J. July

16, 2014) (“[P]rior to evaluating a proposed amendment under

Federal Rule of Civil Procedure 15(a), the court must evaluate

whether the party seeking leave has affirmatively demonstrated

‘good cause’ to modify the scheduling order.”). Further, good cause

“‘hinges on [the] diligence of the movant[.]’” Id. (citations

omitted). However, “‘knowledge of the potential claim’ prior to

the expiration of the deadline to amend constitutes the ‘most

common basis’ for finding the absence of good cause.” Id. at *4.

The motion to amend was filed on June 7, 2019 after the

February 28, 2019 deadline set forth by the Court’s Scheduling

Order of January 28, 2019. (See Scheduling Order [D.I. 42], p. 2.)

Accordingly, the Court first addresses whether Plaintiff has

demonstrated good cause under Rule 16.

Live Nation asserts that Plaintiff’s motion should be

denied on timeliness grounds since on the date of Plaintiff’s

accident, “he was fully aware of the identify of his employer and

whether there was any potential claim beyond worker’s

compensation[.]” (Live Nation’s Opp’n [D.I. 85], p. 1.) Live Nation

further contends that while Plaintiff was aware of any claim

against Live Nation at the time of his injury, Plaintiff seeks to

assert a claim near the end of fact discovery. (Id., p. 2.)

Consequently, Live Nation argues, since “Plaintiff has not

diligently prosecuted this matter[,]” the Court should deny

Plaintiff’s motion.2 (Id.)

In response, Plaintiff asserts that “[i]n the interest

of judicial economy, and to avoid a fishing expedition from the

outset, Plaintiff waited to file for leave to amend his complaint

until after he had a sufficient foundation for his claims.” (Pl.’s

Reply [D.I. 87], June 21, 2019, p. 2.) Plaintiff further argues

that “[i]t is not Plaintiff’s fault that this evidence was not

produced until the eleventh hour.” (Id.) Plaintiff asserts that

Defendant Sunbelt, in its discovery responses, contends that the

safety netting was present on the vehicle when delivered to Live

Nation. (Pl.’s Mot. [D.I. 83], p. 3 (citing Defendant Sunbelt’s

Answers and Objections to Plaintiff’s Interrogatories, Ex. B,

dated May 6, 2019).) Plaintiff further argues that Live Nation has

2 In its briefing, Live Nation does not specifically address Rule 16 or

the good cause standard. However, at oral argument, Live Nation clarified

it opposes Plaintiff’s motion to amend pursuant to Rule 16 as well as

Rule 15. Consequently, the Court examines Live Nation’s diligence and

untimeliness arguments under Rule 16.

averred in its discovery responses that “the Ranger at issue was

provided by Sunbelt Rentals without the mandatory cab nets.” (Id.

(citing Live Nation’s Responses to Sunbelt Rentals, Inc.’s Request

for Admissions, Ex. A).) Further, Plaintiff asserts that Live

Nation’s corporate representative, Curtis Voss, was deposed on

June 5, 2019, and at his deposition, Mr. Voss testified that Live

Nation does not allow its employees to remove safety netting, and

further, that “he does not know whether the Ranger at issue came

with safety cab nets when it was leased from Defendant Sunbelt[,

but] that Live Nation relies on Sunbelt to provide appropriate

equipment with all safety features.” (Id., p. 4.) Accordingly,

Plaintiff argues that “[t]he positions of Live Nation and Sunbelt

Rentals regarding the cab nets are irreconcilable[,]” and

“Plaintiff is forced to request leave to file a Fourth Amended

Complaint to preserve all claims in this matter[,]” including an

intentional tort claim against Live Nation.3 (Id., pp. 4-5.)

The Court finds that Plaintiff has demonstrated good

cause under Rule 16 sufficient to permit the filing of the motion

3 Plaintiff further asserts that the dilatory production of documents

and deposition of Live Nation’s corporate representative “ha[ve]

necessitated this amendment.” (Pl.’s Reply [D.I. 87], p. 1.) Plaintiff

asserts, for example, that on May 16, 2019, Defendant Sunbelt produced

certain emails between Defendant Sunbelt and Live Nation relevant to the

matter. (Id., p. 2.) Plaintiff further asserts that despite Plaintiff

serving a subpoena for documents on Live Nation, Live Nation did not

produce the emails. (Id.) Plaintiff also contends that Live Nation’s

corporate representative, Mr. Voss, was deposed on June 5, 2019 “despite

being noticed numerous times over the last six months.” (Id.)

to amend beyond the February 28, 2019 deadline set forth in the

Scheduling Order of January 28, 2019. Specifically, the Court

accepts Plaintiff’s argument that the recent production of written

discovery responses and deposition of Mr. Voss presented

additional information upon which Plaintiff could rely to support

the proposed new claim against Live Nation. Further, the Court

does not find that Plaintiff failed to act diligently to explore

these issues related to the safety netting and the alleged removal

of the netting. Given the recent production and deposition, the

Court finds that Plaintiff acted diligently in seeking to amend

the complaint after the applicable deadline and that Plaintiff has

demonstrated good cause under Federal Rule of Civil Procedure 16.

The Court next addresses Live Nation’s arguments under

Rule 15 that the motion should be denied on prejudice and futility

grounds. “[S]ubstantial or undue prejudice to the non-moving party

is a sufficient ground for denial of leave to amend.” Cureton v.

Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001)

(citing Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993). “In

determining whether amendment of a complaint will cause

undue prejudice, the Court must ‘focus on the hardship to the

defendants if the amendment were permitted.’” Stolinski, 2011 WL

13238545, at *6 (citing Cureton, 252 F.3d at 273 (citing Adams v.

Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984))). Consequently,

undue prejudice suffices to deny leave to amend, where “if

amendment were permitted, the [defendant] would be prejudiced by

having to engage in burdensome new discovery and significant trial

preparation.” Cureton, 252 F.3d at 274 (finding that district court

did not abuse its discretion in denying motion to amend where the

district court determined that the “‘proposed amendment would

essentially force the [defendant] to begin litigating this case

again.’”) However, “incidental prejudice to the opponent is not a

sufficient basis for denial of an amendment; such prejudice becomes

‘undue’ when the opponent shows it would be ‘unfairly disadvantaged

or deprived of the opportunity to present facts or evidence which

it would have offered[.]’” Harrison Beverage Co. v. Dribeck

Importers, Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (citing Heyl &

Patterson Int’l, Inc. v. F.D. Rich Housing of the Virgin Islands,

Inc., 663 F.2d 419, 425 (3d Cir. 1981), cert. denied sub nom. F.D.

Rich Housing of the Virgin Islands, Inc. v. Gov't of the Virgin

Islands, 455 U.S. 1018 (1982) (denying in part motion to amend to

add affirmative defenses where discovery was complete and

amendment to add the defenses would cause discovery to be reopened

and a postponement of trial).

Live Nation asserts that the fact discovery deadline is

approaching, and Live Nation will be “severely and irreparably

prejudiced if it [has] to conduct discovery, including re-deposing

Plaintiff and obtaining an IME in the next [twenty] days.” (Live

Nation’s Opp’n [D.I. 85], p. 2.) Live Nation also asserts that it

did not conduct discovery as to damages and/or liability on the

intentional tort claim. (Id.) The Court rejects Live Nation’s

arguments. The Court recently extended discovery deadlines. (See

Scheduling Order [D.I. 91], June 25, 2019.) Further, Live Nation,

as the third-party defendant, has participated in this litigation

and discovery to date. Moreover, there has been no showing that

Live Nation has been deprived of the ability to offer facts or

evidence it would have offered, and Live Nation has not

sufficiently articulated prejudice that would warrant denial of a

motion to amend under Rule 15.

As to futility, the Court notes that “[a]n amendment

would be futile if the complaint, as amended, advances a claim or

defense that ‘would fail to state a claim upon which relief could

be granted.’” Gutwirth v. Woodland Cedar Run Wildlife Refuge, 38

F. Supp. 3d 485, 488 (D.N.J. 2014) (citing Shane v. Fauver, 213

F.3d 113, 115 (3d Cir. 2000)). “In evaluating futility, courts

employ the ‘same standard of legal sufficiency as applies under

[Federal] Rule [of Civil Procedure] 12(b)(6).’” Id. (citing Great

W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175

(3d Cir. 2010)). “For a complaint to survive dismissal pursuant to

this standard, it ‘must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on

its face.’” Custom Pak, 2014 WL 988829, at *1 (citing Ashcroft v.

Iqbal, 556 U.S. 662 (2009)).

Live Nation’s futility argument is based upon New

Jersey’s workers’ compensation bar of certain tort claims against

an employer brought by an employee injured in the course of her

employment. Specifically, New Jersey’s Workers’ Compensation Act,

N.J.S.A. 34:1 et seq. provides the exclusive remedy for an

employee’s claim against an employer for a workplace injury, except

for “injuries that result from an employer’s ‘intentional

wrong[.]’” Van Dunk v. Reckson Assocs. Realty Corp., 210 N.J. 449,

451 (2012). To establish an intentional tort claim, a plaintiff

must establish that (1) the “employer [] knowingly expose[d] [an]

employee to a substantial certainty of injury,” and (2) “the

resulting injury [was] not [] ‘a fact of life of industrial

employment’ and [was] plainly beyond anything the Legislature

intended the Act to immunize.” Allen v. MB Mutual Holding Co., No.

A-0242-18T2, 2019 WL 2395913, *4 (N.J. Super. Ct. App. Div. June

6, 2019).

Live Nation argues that Plaintiff has not sufficiently

pled an essential element of the intentional tort claim: deliberate

intent to injure. (Live Nation’s Opp’n [D.I. 85], pp. 2-3.) Live

Nation asserts that “Plaintiff has failed to produce a single fact

to support a claim of a deliberate intent to injure.” (Id., p. 5.)

Live Nation further asserts that “[t]he record is devoid of any

facts . . . [as t]here were no prior incidents, no production

quotas or anything to support a claim of deliberate indifference

to Plaintiff’s safety.”4 (Id., p. 3.) Live Nation also argues

“[t]hat [since] Live Nation does not know if the vehicle came with

the netting, without more, [that fact is] not sufficient to support

a claim of a deliberate intent to injure or certain knowledge that

Plaintiff would be injured.” (Id., p. 5.) Further, Live Nation

contends that even if it removed the safety netting, “that fact

alone would not be sufficient to remove the matter from the

worker’s compensation bar [since] Plaintiff must establish that

Live Nation acted with certain knowledge that Plaintiff would be

injured and that he is clearly unable to do.” (Id.)

Plaintiff contends that he has sufficiently met the

pleading standard for the intentional tort claim based upon the

allegation that Live Nation “intentionally remov[ed] the safety

cab net from the Ranger prior to its use by Plaintiff and other

Live Nation employees[.]” (Pl.’s Mot. [D.I. 83], p. 5.) Plaintiff

further asserts that the correct standard under an intentional

tort claim is not intent to injure but rather, “a substantial

certainty that injury . . . will result.” (Pl.’s Reply [D.I. 87],

p. 2.) Plaintiff further asserts that he has pled a factual basis

4 Live Nation also argues that “[i]n fact, the specific type of vehicle

(Polaris) was not requested by Live Nation and the vehicle in question

may not even have been operational when delivered. The record reflects

that there was very little use of the vehicle prior to the incident and

the so called cab netting may not have been included with the original

delivery of the vehicle.” (Id., p.3.) However, these arguments are based

on factual assertions that are not to be considered under the Rule

12(b)(6) standard governing futility.

for the intentional tort claim under the correct standard. (Pl.’s

Memorandum of Law in Support [D.I. 83], p. 5.)

To prove the first prong of an intentional tort claim,5

a plaintiff must establish “a virtual certainty that [] injury .

. . will result.” Van Dunk, 210 N.J. at 470-71. “A probability, or

knowledge that such injury or death ‘could’ result, is

insufficient.” (Id.) In determining whether a virtual certainty of

injury exists, “[a]n intentional wrong requires more than a

violation of safety regulations or failure to follow good safety

practices.” Spatola v. Seabrook Brothers & Sons, Inc., No. A-2761-

17T3, 2019 WL 2004311, *3 (N.J. Super. App. Div. May 7, 2019).

Rather, courts have looked to whether “[t]he alleged wrongful act

[was] accompanied by something more, typically deception,

affirmative acts that defeat safety devices, or a willful failure

to remedy past violations.” Id. Consequently, at the pleadings

stage, a plaintiff must make factual allegations that his employer

engaged in conduct with knowledge of a virtual certainty that

injury would occur.

In support of its position, Live Nation cites to Allen

v. MB Mutual Holding Co. in which the New Jersey appellate court

5 Live Nation does not make any arguments as to the sufficiency of the

pleadings on the second prong. As to the second prong, the Court notes

that Plaintiff has pled “Live Nation’s conduct and the conditions it

created are outside the purview of the conditions the Legislature

intended to immunize under the Workmen’s Compensation bar.” (Proposed

Am. Compl. [D.I. 83] at ¶ 92.)

affirmed a trial court’s dismissal of plaintiff’s intentional

wrong claim. 2019 WL 2395913, at *3-5. In Allen, Plaintiff had

alleged an intentional tort on the basis that defendants required

her to continue working at her place of work, a bank branch,

despite an existing mold problem. Id. at *2-3. Plaintiff also

alleged that her employer had directed plaintiff to enter the

workplace without safety equipment. Id. The trial court held that

in her pleadings, plaintiff failed to allege sufficient facts that

defendants had acted with a substantial certainty of injury to

plaintiff given that plaintiff had pled that defendant took action

within a month of learning of the seriousness of the mold problem,

including by holding a meeting, scheduling and completing an

inspection, moving employees away from the hazardous area, and

ultimately closing the bank branch. Id. at *3. The trial court

further determined that this conduct “d[id] not appear to

[constitute] actions of an employer acting with substantial

certainty that their employees w[ould] be injured[.]” Id.

Moreover, the trial court held that “‘it is not enough that

[d]efendants understood there was a probability that [p]laintiff

would be injured by the mold[.]” Id. The New Jersey appellate court

affirmed the trial court in all respects, finding that plaintiff’s

complaint failed to assert that “defendants deliberately deceived

others regarding the condition of the workplace or employee

illness, removed safety devices which facilitated mold growth, or

ignored prior injuries, accidents, or employee complaints

regarding a dangerous condition[.]” Id. at *5.

Here, Plaintiff pleads in the proposed amended complaint

that “Live Nation intentionally removed the safety cab net from

the Ranger prior to its use by Plaintiff and other Live Nation

employees[;]” that “Live Nation knew that without the proper safety

devices (e.g., the safety cab net) the Ranger was a dangerous

vehicle[;]” and that “Live Nation knowingly caused Plaintiff harm

through its conduct . . . [and] it acted with knowledge, and was

substantially certain, that its conduct would lead to a

worker/operator/passenger of the Ranger, such as Plaintiff,

suffering harm.” (Proposed Am. Compl. [D.I. 83] at ¶¶ 89-91). The

Court finds that Plaintiff has sufficiently pled the first prong

of an intentional tort claim. Unlike in Allen, Plaintiff has pled

with sufficient factual support an affirmative act on the part of

Live Nation and that Live Nation acted with knowledge of the

substantial certainty that its conduct would cause harm to

Plaintiff.

Moreover, as noted supra, Live Nation’s arguments are

more appropriately addressed by way of a summary judgment motion.

For example, Live Nation asserts that Plaintiff has failed “to

produce” any facts to support a showing that Live Nation acted

with deliberate intent to injure and that “[t]he record is devoid

of any facts to support [the] claim that Live Nation deliberately

removed the netting with certain knowledge that Plaintiff would be

injured.” (Live Nation’s Opp’n [D.I. 85], pp. 3, 5.) At oral

argument, counsel for Live Nation conceded that all but one of the

cases cited by Live Nation analyze whether the factual record

supports an intentional tort claim at the summary judgment stage.

See, e.g., Van Dunk, 210 N.J. at 452 (assessing appellate court’s

ruling at summary judgment as to whether plaintiff could sustain

a claim for an intentional tort); Kaczorowska v. Nat’l Envelope

Corp., 342 N.J. Super. 580, 590 (App. Div. 2001) (assessing

viability of plaintiff’s claims under the summary judgment

standard). Moreover, in addressing an intentional tort claim, the

New Jersey Supreme Court found in Crippen that the trial court

erred when it granted summary judgment prior to the completion of

discovery. Crippen v. Central Jersey Concrete Pipe Co., 176 N.J.

397, 409 (2003).6 Here, discovery is not complete. For all of these

reasons, the Court rejects Live Nation’s position that Plaintiff’s

allegations are insufficient to assert the first prong of an

intentional tort claim.

Consequently, the Court finds that Plaintiff has met the

good cause standard for filing the motion to amend past the Court’s

January 28, 2019 Scheduling Order deadline of February 28, 2019,

that Live Nation has not demonstrated undue prejudice to warrant

6 The Crippen court also noted that the first prong of an intentional

tort claim is “ordinarily . . . determined by the jury[.]” Id. at 408.

denial of the motion, and that Plaintiff has sufficiently pled the

intentional tort claim.

For the reasons set forth herein, and for good cause

shown:

IT IS on this 5th day of August 2019,

ORDERED that Plaintiff’s motion to amend [D.I. 83] shall

be, and is hereby, GRANTED; and it is further

ORDERED that Plaintiff shall file the amended complaint

in the form attached to the motion within ten (10) days of entry

of this Order and shall serve the amended complaint in accordance

with the Federal Rules of Civil Procedure.

s/ Ann Marie Donio

ANN MARIE DONIO

UNITED STATES MAGISTRATE JUDGE

cc: Hon. Renée Marie Bumb