# FENNELL v. TACU

> District Court, W.D. Pennsylvania · June 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10416639

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** June 8, 2021
- **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/10416639

## How later opinions describe it (automated extraction)

- explaining that, “to make the required showing of prejudice . . . [Defendant] is required to demonstrate that its ability to present its case would be seriously impaired were amendment allowed”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHAEL FENNELL, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-1157
)
GHEORGHE TACU, GT EXPRESS, )
LLC and SPARTAK, INC., )
)
Defendants. )

MEMORANDUM OPINION

Presently before the Court is Plaintiff’s Motion for Leave to File Amended Complaint and
brief in support (Docket Nos. 31, 32), Defendants’ response in opposition to Plaintiff’s motion
(Docket No. 34), and Plaintiff’s reply thereto (Docket No. 35). For the reasons set forth below,
Plaintiff’s motion will be granted.
I. Background
This case arises in connection with a motor vehicle accident that occurred on August 6,
2018 involving Plaintiff Michael Fennell and Defendant Gheorghe Tacu. According to the
Complaint filed on August 3, 2020 (Docket No. 1), Plaintiff, a Pennsylvania State Trooper, had
stopped Mr. Tacu for a potential vehicle code violation when Mr. Tacu’s tractor-trailer allegedly
rolled backward and hit Plaintiff’s vehicle, causing him injury. Plaintiff filed suit against Mr. Tacu
and his alleged employers, GT Express, LLC, and Spartak, Inc. (hereinafter, “Defendants” or
“existing Defendants”), claiming four counts of negligence: (1) Negligence (Plaintiff v. Mr.
Tacu); (2) Negligence per se (Plaintiff v. Mr. Tacu); (3) Negligence (Respondeat Superior)
(Plaintiff v. GT Express, LLC): and (4) Negligence (Respondeat Superior) (Plaintiff v. Spartak,
Inc.).
On February 17, 2021, after Defendants had filed their Answer (Docket No. 21) and had
served their initial disclosures (which included insurance coverage information), Plaintiff filed his
motion for leave to file an amended complaint. In his motion, Plaintiff explains that, based on the
information that Defendants provided as well as Plaintiff’s own research, it appears that: the assets
and/or insurance coverage available to indemnify Defendants may not be sufficient to cover

Plaintiff’s damages; GT Express, LLC is a shell corporation and an alter ego of Mr. Tacu and
should be treated as a single entity; and Spartak, Inc. is a shell corporation with multiple alter egos
owned by the same owners, and/or that Spartak, Inc. and the other commonly-owned alter-ego
shells should be treated as a single entity. (Docket No. 31 at 2).
Accordingly, Plaintiff asks leave to file his proposed Amended Complaint (Docket No.
31-1), which includes additional negligence counts against Defendants. Plaintiff also seeks to add
new corporate defendants GTR Express LLC, Drone Transportation, Inc., LuxStyle, Inc., Motor
Beat, Inc., Lucky Joker, Inc., and A.R.C. Expresss, Inc., along with new individual defendants
Radu Plamadeala a/k/a/ Radu Spinei a/k/a Radu Spinel and Cristina Coada, husband and wife who

are the alleged owners/joint-owners/agents/officers of the various corporate entities involved
(hereinafter, “the new Defendants”). According to Plaintiff, the alleged liability of the new
Defendants in the proposed Amended Complaint is the same as the alleged liability of the existing
Defendants for the conduct, transactions and/or occurrences alleged in his original Complaint, but
the new Defendants are liable under veil-piercing theories.
Defendants argue that the Court should deny Plaintiff’s motion, contending that the
proposed amendment of the Complaint is futile because the proposed claims against them and the
new Defendants would be barred by the statute of limitations, which expired three days after
Plaintiff filed his original Complaint. Defendants also argue that Plaintiff should not be permitted
to amend his Complaint to include a request for punitive damages.
II. Legal Analysis
A. Amendment of Pleadings Under Federal Rule of Civil Procedure 15
Federal Rule of Civil Procedure 15 permits a party to “amend its pleading once as a matter

of course” within 21 days after serving it or within 21 days after service of a responsive pleading
or motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1). Otherwise,
“a party may amend its pleading only with the opposing party’s written consent” or with leave of
court. Fed. R. Civ. P. 15(a)(2). Generally, courts are liberal in permitting amendment of pleadings,
as Rule 15 specifies that leave shall be freely given “when justice so requires,” and the burden of
showing that justice requires such amendment rests with the party seeking leave to amend. Fed.
R. Civ. P. 15(a)(2); see Dole v. Arco Chemical Co., 921 F.2d 484, 486-87 (3d Cir. 1990);
Katzenmoyer v. City of Reading, 158 F. Supp. 2d 491, 497 (E.D. Pa. 2001).
There are limits to the policy favoring liberal amendment, however, and an amendment

of a pleading is considered to be futile if the claims sought to be added would be barred by the
statute of limitations. See Kitko v. Young, Civ. Action No. 3:10-189, 2013 WL 126324, at *2
(W.D. Pa. Jan. 9, 2013) (citing Garvin v. City of Philadelphia, 354 F.3d 215, 222 (3d Cir. 2003));
Dole, 921 F.2d at 487. Therefore, when a party seeks leave to amend a pleading in order to add
new claims or new parties after the statute of limitations has expired, that party must show that the
new claims and/or parties “relate back” to the date of the original pleading. See Estate of Grier ex
rel. Grier v. Univ. of Pa. Health Sys., Civ. Action No. 07-4224, 2009 WL 1652168, at *2 (E.D.
Pa. June 11, 2009); Kitko, 2013 WL 126324, at *2. Specifically, Rule 15(c) provides:
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations
allows relation back;
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out--or attempted to be
set out--in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in
by amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning
the proper party's identity.

Fed. R. Civ. P. 15(c).
If a plaintiff seeks leave of Court to add new claims against an existing defendant, Rule
15(c)(1)(B) requires that the new claims arise out of the same transaction or occurrence that gave
rise to the claims in the original complaint. See Estate of Grier, 2009 WL 1652168, at *3. If a
plaintiff seeks leave to add new defendants, however, the plaintiff must demonstrate that all the
requirements of 15(c)(1)(C) are satisfied. See id. Thus, the plaintiff “must establish that the
amended pleading relates to the same conduct or transaction or occurrence set forth in the original
complaint; that within the . . . time period prescribed by Rule 4(m), the proposed new defendant
had notice of the action; and that the proposed new defendant knew or should have known that but
for a mistake of identity, he or she would have been named in the initial complaint.” Id.
Additionally, a court’s decision as to whether a new claim relates back to an original
complaint is separate from, and entails use of a different standard than, the court’s decision as to
whether to grant leave to amend. See Kitko, 2013 WL 126324, at *2 (quoting Eaglin v. Castle
Acquisition, Inc., Case No. 2011-48, 2012 WL 4891623, at *1 (D.V.I. Oct. 16, 2012)). Therefore,
if an amended pleading meets the Rule 15(c) requirements and relates back to the date of the
original pleading, a court can still deny leave to amend under Rule 15(a) if it determines that the
amendment would be unjust. See id. In making such determination, “‘prejudice to the non-moving
party is the touchstone for the denial of an amendment,’” and it is the defendant who “bears the
burden of demonstrating prejudice sufficient to deny leave to amend under Rule 15(a).” Id. at *3,

7 (quoting Cornell and Co., Inc. v. Occupational Safety and Health Review Comm’n, 573 F.2d
820, 823 (3d Cir. 1978)). However, even if substantial or undue prejudice has not been shown,
denial may also be based on a plaintiff’s “‘bad faith or dilatory motives, truly undue or unexplained
delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of
amendment.’” Id. at *3 (quoting Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993)).
B. Plaintiff’s Proposed Amended Complaint
In this case, as the time for amending the Complaint as a matter of course has passed, and
as Defendants do not consent to Plaintiff’s proposed amendment, Plaintiff has appropriately sought
leave to amend from the Court. Because the two-year statute of limitations for Plaintiff’s various

negligence claims (all brought under Pennsylvania law) expired shortly after he filed his original
Complaint, the new Defendants and the new claims cannot be added to this action unless the
proposed Amended Complaint relates back to the date of the original Complaint’s filing pursuant
to Rule 15(c).1 See Kitko, 2013 WL 126324, at *3 (citing Urrutia v. Harrisburg County Police
Dep’t, 91 F.3d 451, 457 (3d Cir. 1996)); Wine v. EMSA Ltd. Partnership, 167 F.R.D. 34, 37 (E.D.
Pa. 1996).
To the extent that the proposed Amended Complaint alleges new claims against the existing
Defendants, the parties do not contest that those new claims arise out of the occurrence set out in

1 A two-year statute of limitations applies to negligence actions in Pennsylvania. See 42 Pa. C.S. § 5524;
Barnes v. American Tobacco Co., 161 F.3d 127, 152 (3d Cir. 1998).
the original pleading, which is the vehicle collision at issue. The Court therefore finds that the
new claims against the existing Defendants relate back to the original Complaint.
With regard to the addition of the new Defendants in the proposed Amended Complaint,
as discussed, supra, to show that such amendment regarding them “relates back” to the date of the
original Complaint, Plaintiff must show that the three prerequisites of Rule 15(c)(1)(C) are met:

(1) the claims in the amended complaint must arise out of the same
occurrences set forth in the original complaint, (2) the party to be brought
in by amendment must have received notice of the action . . . and (3) the
party to be brought in by amendment must have known, or should have
known, that the action would have been brought against the party but for a
mistake concerning its identity.

Kitko, 2013 WL 126324, at *4 (quoting Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir. 2016)).
Regarding the first prerequisite, as previously noted, the negligence claims against the new
Defendants alleged in the proposed Amended Complaint arise out of the vehicle collision that is
the same occurrence set forth in the original Complaint. Plaintiff has therefore shown that the first
prerequisite of Rule 15(c)(1)(C) is met.
The second prerequisite of relation back under Rule 15(c)(1)(C) actually has two
requirements: (1) that the party to be brought in by amendment received notice of the action, and
(2) that, because of such notice, the party is not prejudiced by its later addition to the case. See
Fed. R. Civ. P. 15(c)(1)(C); Urrutia, 91 F.3d at 458. Such notice of the action to new parties, under
Rule 15(c)(1)(C)(i), may be actual, constructive, or imputed. See Kitko, 2013 WL 126324, at *4
(citing Singletary v. Pa. Dep’t of Corrections, 266 F.3d 186, 195-96 (3d Cir. 2001)); Estate of
Grier, 2009 WL 1652168, at *3. Receipt of notice may be imputed by the existence of a shared
attorney or by an identity of interest between the original defendants and the parties sought to be
added. See Kitko, 2013 WL 126324, at *4 (quoting Singletary, 266 F.3d at 189); Estate of Grier,
2009 WL 1652168, at *3. Since Plaintiff alleges that the new Defendants are all owned or
controlled by the same individuals or entities as the existing Defendants, either as shell
corporations, alter egos, or under a single entity theory, and since Defendants do not argue to the
contrary (nor do they address the notice requirement in their brief in opposition), the Court
concludes that notice given to the new Defendants can be imputed by the alleged identity of interest

between the new Defendants and the existing Defendants. Plaintiff has therefore shown that the
second prerequisite of Rule 15(c)(1)(C) has been met.
Third, as to whether the new Defendants must have known, or should have known, that the
action would have been brought against them had Plaintiff not been mistaken concerning their
identities, Plaintiff has also shown that this requirement has been met. Specifically, Plaintiff
explains in his motion and brief that, through Defendants’ Answer and initial disclosures and his
resulting research, he learned of a complex corporate structure involving the existing Defendants
and the new Defendants, which revealed the new Defendants’ liability in this matter. If, as Plaintiff
alleges, the parties are all interconnected, then they must have known (or should have known) that

Plaintiff would have brought suit against them had he understood their corporate identities.
Therefore, since Plaintiff has shown that the necessary prerequisites of Rule 15(c)(1)(C) have been
met, the Court finds that the proposed Amended Complaint naming the new Defendants does, in
fact, relate back to the date of the original Complaint.
Having concluded that the proposed amendments relate back to the original Complaint,
however, the Court must also determine whether it should grant leave to amend the Complaint
pursuant to Rule 15(a) or whether granting such leave would be unjust. With regard to adding new
claims against the existing Defendants, as noted, supra, although Plaintiff bears the burden of
showing that such amendment relates back under Rule 15(c), the existing Defendants bear the
burden of demonstrating prejudice sufficient to deny leave to amend under Rule 15(a). See Kitko,
2013 WL 126324, at *7 (citing Dole, 921 F.2d at 488 (explaining that, “to make the required
showing of prejudice . . . [Defendant] is required to demonstrate that its ability to present its case
would be seriously impaired were amendment allowed”), and Bechtel v. Robinson, 886 F.2d 644,
652 (3d Cir. 1989) (explaining that a party that is opposing amendments “must do more than

merely claim prejudice; it must show that it was unfairly disadvantaged or deprived of the
opportunity to present facts or evidence which it would have offered had the . . . amendments been
timely” (internal quotation marks and citation omitted))). Here, the existing Defendants have made
boilerplate statements that they would be prejudiced (stating, for instance, that the motion is
“Extremely Prejudicial due to the Expiration of the Statute of Limitations,” without providing any
specific factual support), but they have not shown that they would be substantially prejudiced
because their ability to present their case would be seriously impaired by permitting the proposed
amendment at this juncture. (Docket No. 34 at 4).
As previously discussed, the Court may also deny leave to amend if it finds that Plaintiff

had bad faith or dilatory motives in seeking his amendment, that there was undue or unexplained
delay, that there were repeated failures to cure the deficiency by previously allowed amendments,
or that there is futility of amendment. See Kitko, 2013 WL 126324, at *3; Lorenz, 1 F.3d at 1414.
Defendants argue that by waiting until only three days before the running of the statute of
limitations to file his Complaint, Plaintiff cannot now argue that there was justified delay in
pursuing the additional claims he raises, and that permitting amendment of his claims would be
futile because they are barred by the statute of limitations. (Docket No. 34 at 5). However, as
explained, supra, because the new claims against the existing Defendants and the addition of the
new Defendants relate back to the date the original Complaint was filed, those claims are not futile
based on the statute of limitations as Defendants contend. The Court also finds that Plaintiff has
provided an adequate explanation for why he did not include the proposed amendments in his
original Complaint, as it was not until he received Defendants’ Answer and initial disclosures that
he allegedly learned of the insurance coverage issues and the complex corporate structure involved
in this matter. Moreover, Plaintiff did not fail to cure the alleged deficiency in his pleading by

previously allowed amendments, as the motion before the Court is Plaintiff’s first motion to amend
his Complaint.
Additionally, Defendants argue that the Court should prohibit Plaintiff from amending his
Complaint because his proposed Amended Complaint alleges causes of action that are different or
new from those contained in the original Complaint, and the statute of limitations has run on those
new claims. “Under Pennsylvania law, there is a prohibition against amendments which allege a
different or new cause of action after the running of the applicable statute of limitations.”
Ozoemena v. City of Philadelphia, No. Civ. A. 97-3765, 1997 WL 633749, at *7 (E.D. Pa. Oct. 1,
1997) (citing Matos v. Rivera, 648 A.2d 337, 339-40 (Pa. Super. Ct. 1994)). A different or new

cause of action is alleged if “‘the amendment proposes a different theory or a different kind of
negligence than the one previously raised or if the operative facts supporting the claim are
changed.’” Id. (quoting Junk v. East End Fire Dep’t, 396 A.2d 1269, 1277 (Pa. Super. Ct. 1978));
see, e.g., Jones v. Cheltenham Township, 543 A.2d 1258, 1260 (Pa. Commw. Ct. 1988) (upholding
a trial court’s decision not to allow amendment of a complaint alleging negligence in order to add
willful negligence, after a township had asserted an immunity defense based on the complaint not
alleging willful conduct in relation to an accident that occurred at a township park). “However, if
the proposed amendment does nothing more than amplify a cause of action that has already been
averred, it should be permitted even though the statute of limitations has run.” Ozoemena, 1997
WL 633749, at *7 (citing Hodgen v. Summers, 555 A.2d 214, 215 (Pa. Super. Ct. 1989) (emphasis
added)).
In this case, while the original Complaint alleges four counts of negligence (or negligence
per se or negligence (respondeat superior)), the proposed Amended Complaint adds six new
counts of negligence, although the nature of the negligence claims varies based on the existing

Defendants’ and new Defendants’ corporate structures.2 (Docket Nos. 1, 31-1). Importantly,
although Plaintiff includes general allegations explaining the named Defendants’ and new
Defendants’ connections, thereby setting forth the basis for their liability, the operative facts
supporting the claims are not changed from the original Complaint, nor are entirely new theories
of liability added.3 Therefore, the Court finds that, although the claims raised against the new
Defendants may amplify causes of action that have already been averred, they do not state new
and different causes of action altogether. 4 See Ozoemena, 1997 WL 633749, at *7.
Finally, Defendants argue that Plaintiff should not be permitted to amend his Complaint to
seek punitive damages because such proposed amendment is untimely, futile, and extremely

prejudicial. In analyzing a request for leave to seek punitive damages under the same Rule 15(c)
standard as evaluating a request for leave to amend a Complaint otherwise, “a proposal to add a
punitive damages claim following the expiration of the limitations period requires that the

2 Specifically, the proposed Amended Complaint includes two new claims based on piercing the corporate
veil and one new claim based on joint venture liability due to the corporate structure that is allegedly in place, as
well as one claim based on negligent hiring, one claim based on negligent entrustment/negligence per se because of
the new Defendants’ relationships with the existing Defendants, and another claim for negligence. (Docket 31-1).

3 Although Defendants argue that the original Complaint contains no allegations of deliberate or willful
conduct, the Court notes that Plaintiff specifically alleges in the Complaint that “at all times Mr. Tacu acted with
conscious disregard of the law, and of the health and safety of Officer Fennell.” (Docket No. 1, ¶ 41 (Count II,
incorporated by reference into Counts III and IV)). Accordingly, the Court finds that Plaintiff did, in fact, allege
deliberate or willful conduct in his original Complaint.

4 The Court notes that, after the Amended Complaint is filed, the new Defendants are free to assert defenses
to, and/or move to dismiss, the claims against them, if they so choose.
requested punitive damages relate back to the date of the original complaint.” Estate of Grier,
2009 WL 1652168, at *9. Like the other new claims included in the proposed Amended
Complaint, Plaintiff’s request for punitive damages, based on the facts alleged, clearly relates back
to the original Complaint.5 Similarly, the Court sees no reason to doubt Plaintiff’s assertion that
he is amending his claims for damages based on the information he received in Defendants’ initial

disclosures and Answer. Additionally, at this early stage of the litigation, the Court finds that
Defendants would suffer little if any prejudice in defending against a claim for punitive damages
for such claims. See id. The Court also declines to find, at this time, that Plaintiff’s punitive
damages claims would be futile, since a determination of whether such damages are warranted will
require inquiry into the specific facts of the case.6 See id. Furthermore, upon review of the
proposed Amended Complaint, the Court finds that Plaintiff has alleged facts that, if proven, could
lead to the conclusion that he is entitled to an award of punitive damages because Defendants
“engaged in conduct that was ‘outrageous, because of the[ir] . . . reckless indifference to the rights
of others.’” Id. (quoting Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005)

(setting forth the standard governing the award of punitive damages in Pennsylvania)). The Court
will therefore permit Plaintiff to amend his Complaint to seek punitive damages in this matter.
Because the Court finds that the claims in Plaintiff’s proposed Amended Complaint relate
back to the date of his original Complaint, and that permitting such amendment would not be unjust

5 In Pennsylvania, a two-year statute of limitations applies to a claim for punitive damages. See Goodfellow
v. Shohola, Inc., Civ. Action No. 3:16-1521, 2018 WL 3995696, at *3 (M.D. Pa. Aug. 21, 2018).

6 The Court also notes that, although punitive damages are considered to be an extreme remedy, see Phillips
v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005), the Pennsylvania Supreme Court has been somewhat liberal in
permitting a plaintiff to attempt to prove punitive damages. See Brand Marketing Group, LLC v. Intertek Testing
Servs. NA, Inc., No. 12cv1572, 2014 WL 2094297, at *10-11 (W.D. Pa. May 20, 2014) (citing Hutchison, 870 A.2d
at 766); see also Thomas v. Medesco, Inc., 67 F.R.D. 129, 132 (E.D. Pa. 1974) (allowing punitive damages to be
added when new facts were not alleged but, rather, new implications from the facts were discovered).
under the circumstances presented here, the Court concludes that Plaintiff should be permitted to
amend his Complaint.
III. Conclusion
Accordingly, Plaintiff’s Motion for Leave to File Amended Complaint shall be granted.
An appropriate Order follows.

Dated: June 8, 2021 /s/ W. Scott Hardy
W. Scott Hardy
United States District Judge

cc/ecf: All counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416639. Public record. Not legal advice.