# FAIELLA v. SUNBELT RENTALS, INC.

> District Court, D. New Jersey · August 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10266490

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10266490

## How later opinions describe it (automated extraction)

- 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.’”

## Opinion text

[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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266490. Public record. Not legal advice.