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Thomas v. Ford Motor Co.

August 31, 2000

ERIC V. THOMAS, D.M.D., INDIVIDUALLY, ADMINISTRATOR, AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF TRACY ROSE THOMAS, AND AS PARENT AND NATURAL GUARDIAN OF ALIX THOMAS,
PLAINTIFF,
V.
FORD MOTOR COMPANY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Joel B. Rosen United States Magistrate Judge

FOR PUBLICATION

OPINION

ROSEN, United States Magistrate Judge

I. Introduction

Presently before the court is the plaintiffs' motion to supplement the complaint, pursuant to Fed. R. Civ. P. 15(d), to add the following claims against Defendant Ford Motor Company: (1) violation of 42 U.S.C. §1985(2); (2) intentional infliction of emotional distress; (3) defamation; and (4) punitive damages. *fn1 After careful consideration of the parties' submissions, and after further consideration of the oral argument conducted on the record on July 18, 2000, and for the reasons noted below, the plaintiffs' motion to supplement the complaint shall be granted in part and denied in part.

II. Factual and Procedural History

Plaintiff Eric V. Thomas brings this products liability and wrongful death suit against Ford Motor Company ("Ford"), TRW, Inc. ("TRW") and Breed Technologies, Inc. ("Breed") following the death of his wife Tracy Thomas on February 9, 1997. According to Dr. Thomas, at around midnight on that date, Ms. Thomas, then thirty-seven years old and six months pregnant, was driving the family's 1996 Ford Explorer, accompanied by her husband, Dr. Thomas, and their eighteen month old daughter, Alix. (See Complaint, ¶ 15; Plaintiffs' Memorandum of Law in Support of Motion for Leave to Amend the Complaint, at 4 (hereinafter "Ps' Brief")). The Thomas's were allegedly taking their daughter to the emergency room of the local hospital for treatment of a high fever. (See Ps' Brief, Exhibit A, at 18). Because of snowy road conditions, Ms. Thomas was driving slowly. (Complaint, ¶ 17). En route to the hospital, Ms. Thomas allegedly swerved to avoid a deer and lost control of her car, striking a utility pole on the side of the road. (Complaint, ¶ 18; Ps' Brief, Ex. A, at 18). Upon impact, notwithstanding the Explorer's moderate pace, both the driver-side and the passenger air bags deployed. (Complaint, ¶¶ 21-24). The vehicle, with the family inside, was discovered at approximately 2:00 a.m. (Middle Township Police Department Accident Report, p. 6, attached as Exhibit C to Ps' Brief). Emergency services personnel found Dr. Thomas apparently unconscious in the front passenger seat (id. at 2) and Alix unhurt in the backseat of the vehicle. (Id. at 10). Tracy Thomas, however, was pronounced dead at the scene. (Id. at 2).

On February 1, 1999, Dr. Thomas filed suit against Ford, TRW and Breed *fn2 , seeking relief individually as well as on behalf of his minor daughter and the estate of his late wife, for the death of Tracy Thomas on the theory that the Explorer's air bag was defective. Fundamentally, the plaintiffs assert that "[b]ut for the improper deployment of the airbag, Tracy and her unborn child would have survived the minor collision with little or no injury." (Complaint, ¶ 23). Following the dismissal of Breed Technologies, Inc., *fn3 Dr. Thomas filed an amended complaint which charges the remaining defendants with wrongful death under N.J.S.A. 2A:31-1, et seq. and N.J.S.A. 2A:15-3 (Counts I and II), statutory product liability under N.J.S.A. 2A:58C-8 (Counts III and IV), common law negligence (Count V), breach of express warranty under N.J.S.A. 12A:2-101, et seq. (Count VI), and punitive damages based on this alleged conduct (Counts VII and X). *fn4

This court held an initial scheduling conference, after which discovery commenced. It is the ensuing conduct, both actual and alleged, of Defendant Ford and its counsel that elicited the plaintiffs' present motion.

The plaintiffs contend that during January and February 2000 Defendant Ford attempted to intimidate Dr. Thomas from continuing the instant lawsuit in violation of the plaintiffs' civil rights, spreading defamatory information and causing Dr. Thomas emotional distress. (See Proposed Supplemental Complaint, ¶¶ 79-109). The intimidation allegedly derived from Ford's communications with the Office of the Prosecutor for Cape May County, the Office of County Medical Examiner for Cape May County and the Middle Township Police Department. (Id. at ¶¶ 79-83). According to the plaintiffs, Ford, through its "authorized agents and representatives," told these local authorities that it was not the air bag that killed Tracy Thomas, but rather that Dr. Thomas murdered his wife. (Id. at ¶¶ 78-80; Ps' Brief at 10). Ford allegedly contacted these local authorities hoping to persuade them to initiate a criminal investigation of Dr. Thomas. (Ps' Brief, at 10). The plaintiffs further assert that Ford made these accusations, "knowing them to be false or with reckless disregard for [their] truth[,]" with the "intent that they ultimately would intimidate and deter Plaintiff Eric Thomas from proceeding with this lawsuit." (Proposed Supplemental Complaint, ¶¶ 83-85).

For the purposes of the present motion to supplement the complaint, Defendant Ford does not contest the factual assertions of the plaintiffs. Instead, Ford opposes the supplement on the ground that it is futile as a matter of law. First, the defendant argues that the allegations in the proposed supplemental complaint fail to state a claim for civil rights conspiracy under Section 1985(2). (Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion for Leave to Amend Complaint, at 4) (hereinafter "D's Brief"). Ford contends that no conspiracy existed, because the intracorporate-conspiracy doctrine bars the claim as to Ford's employees and agents, and the attorney-client privilege shields Ford's own attorney's conduct. Ford further contends that its alleged conduct does not meet the requisite level of intimidation. Finally, Ford argues that the plaintiff has not sustained an injury sufficient under the statute.

Second, Ford posits that both the emotional distress and the defamation claims are barred by the litigation privilege; Ford claims that its agents were acting within the scope of this litigation when communicating with the medical examiner, the prosecutor and the police department. (D's Brief at 20). Specifically, Ford explains that it intends to defend the case by arguing that the air bag could not have caused Ms. Thomas's injuries, but rather that Ms. Thomas's injuries are more consistent with manual strangulation. (Id.). Ford contends that the individuals through whom Ford acted -- namely, William Conroy, counsel for Ford, Joseph Wills, a Ford design analysis engineer, and Gerald E. Corwin, Ford's expert (see Proposed Supplemental Complaint ¶79) -- were acting on behalf of Ford in relation to this defense. (D's Brief at 26). Ford further asserts that a criminal investigation of Dr. Thomas would have a significant impact on its planned defense in the pending litigation. (Id. at 22). Thus, Ford's agents' statements were related to the litigation and uttered in the course of the judicial proceeding and, as such, are covered by the litigation privilege. (Id. at 24-25).

Finally, as to the plaintiffs' claim for punitive damages based on the three proposed additional causes of action, Ford argues that since the plaintiffs have failed to state a claim upon which relief can be granted, the request for punitive damages, as a derivative claim, should be denied as moot. (D's Brief at 32).

III. Discussion

A. Supplementing the Pleadings

The Federal Rules of Civil Procedure encourage and provide for a liberal policy for amending pleadings. Liberality is the rule with regard to supplemental pleadings under Fed. R. Civ. P. 15(d) as well. Rule 15(d) is the appropriate vehicle for amendment where, as here, the additional pleading "set[s] forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Fed. R. Civ. P. 15(d); see Glenside West Corp. v. Exxon Co, U.S.A., 761 F. Supp. 1118, 1133 (D.N.J. 1991). "The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the parties as possible by allowing the addition of claims which arise after the initial pleadings are filed." Glenside, 761 F. Supp. at 1133 (internal quotations omitted). Consequently, although Rule 15(d) does not include Rule 15(a)'s mandate that leave to amend be "freely given when justice so requires," the same standards apply to motions under both of these subdivisions of Rule 15. Glenside, 761 F. Supp. at 1133 (citing Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1188-89 (3d Cir. 1979)); United States v. Local 560, 694 F. Supp. 1158, 1186 (D.N.J.), aff'd, 865 F.2d 253 (3d Cir. 1988). The function of the rule is to bring the action up to date by adding new facts that have occurred since the filing of the original pleading and that affect the controversy and the relief sought.

In Foman v. Davis, 372 U.S. 178 (1962), the Supreme Court articulated the liberal policy of allowing amendments as follows:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or undeclared reasons -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be "freely given." Id. at 182.

The Third Circuit has elaborated on the proper analysis to apply:

The trial court's discretion under Rule 15, however, must be tempered by considerations of prejudice to the non-moving party, for undue prejudice is "the touchstone for the denial of leave to amend." . . In the absence of substantial or undue prejudice, denial must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment. Heyl & Patterson International, Inc. v. F.D. Rich Housing of the Virgin Islands, 663 F.2d 419, 425 (3d Cir. 1981) (citing Cornell & Co., Inc. v. Occupational Safety and Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978)).

It is well established that the futility of amendment is one of the factors that may be considered in denying a motion to amend or supplement the pleadings. Foman, 371 U.S. at 182; Glenside, 761 F. Supp. at 1134. See also In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997); Federal Deposit Insurance Corp. v. Bathgate, 27 F.3d 850, 874 (3d Cir. 1994); Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1203 (3d Cir. 1989). However, given the liberal standard applied to the amendment of pleadings, courts place a heavy burden on opponents who wish to declare a proposed amendment futile. Under Third Circuit jurisprudence, "`[f]utility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted." In re Burlington Coat Factory Securities Litigation,114 F.3d at 1434. See also Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.), cert. denied, 464 U.S. 937 (1983) ("the trial court may properly deny leave to amend where the amendment would not withstand a motion to dismiss"). Thus, if the proposed amendment "is frivolous or advances a claim or defense that is legally insufficient on its face, the court may deny leave to amend. If a proposed amendment is not clearly futile, then denial of leave to amend is improper." 6 Charles A. Wright, Arthur r. Miller and Mary Kay Kane, Federal Practice and Procedure § 1487 at 637-642 (2d ed. 1990) (footnote omitted).

To demonstrate that a claim is "legally insufficient on its face," and that it could not withstand a motion to dismiss, the opposing party must be able to demonstrate that "it appears beyond doubt that the [party] can prove no set of facts in support of [the] claim which would entitle [the party] to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

B. Civil Rights Conspiracy Under the First Clause of 42 U.S.C. §1985(2)

Section 1985(2) has two logical subdivisions; the first addresses interference with federal litigation and the second concerns obstruction of justice at the state court level. See Kush v. Rutledge, 460 U.S. 719, 724-25 (1983). The plaintiffs seek to assert a claim against Ford under the first clause of 42 U.S.C.ยง1985(2) on the ground that Ford conspired to interfere with their civil right to pursue a federal claim. (Ps' Brief at 13). For the reasons ...


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