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Huzinec v. Six Flags Great Adventure, LLC

United States District Court, D. New Jersey

September 27, 2019

EVAN HUZINEC, Plaintiff,
v.
SIX FLAGS GREAT ADVENTURE, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER ARPERT, UNITED STATES MAGISTRATE JUDGE

          DOUGLAS E. ARPERT, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on a Motion by Plaintiff Evan Huzinec for leave to file an Amended Complaint, seeking to add Six Flags Theme Parks Inc. as a Defendant. ECF No. 28. Defendants Six Flags Great Adventure LLC and Six Flags Entertainment Corp. oppose the Motion. The Court has carefully reviewed the submissions of the parties and considers same without oral argument pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, Plaintiff’s Motion is GRANTED.

         I. BACKGROUND[1]

         Plaintiff filed his Complaint on May 16, 2016, alleging negligence and other claims arising out of a July 5, 2014 incident in which he was injured by a falling cellphone while riding the El Toro roller coaster at the Six Flags Great Adventure Park in Jackson, New Jersey. ECF No. 1. Plaintiff allegedly sustained “extensive internal and external injuries in and about the head, face, eye and body, including but not limited to, loss of vision in the right eye” and significant damage to the bones and structures of the right eye socket. Id. at Count 1 at ¶6. Plaintiff claims the cause of this incident was Defendants’ negligence in the operation of the El Toro ride and surrounding premises, namely failing to enforce a no-cellphone policy on the El Toro ride. Id. at ¶5. Plaintiff further claims Defendants breached express and implied warranties that their property and rides were safe. Id. at Count 2 at ¶3. Finally, Plaintiff claims Defendants concealed evidence by failing to preserve surveillance video, the cellphone that struck Plaintiff, written reports and other evidence at one time in their possession memorializing the incident and the injuries to Plaintiff. Id. at Count 3 at ¶¶5, 6.

         Defendants filed a Motion to Dismiss on June 7, 2016. ECF No. 7. U.S. District Judge Freda L. Wolfson dismissed Plaintiff’s claims for breach of implied and express warranty, as well as Plaintiff’s claim for fraudulent concealment and request for punitive damages in Counts 3 and 4. See Order at ECF No. 11. Defendants then filed an Answer to the remaining Counts in the Complaint, along with Affirmative Defenses and Crossclaims against unnamed persons or entities listed as co-Defendants. ECF No. 12. Defendants filed a Third-Party Complaint in April 2017 against Brazilian tour operator For Fun Tours, two employees of For Fun Tours, and the participant in a For Fun Tours trip visiting Six Flags who allegedly dropped the cellphone that hit Plaintiff. ECF No. 16 at ¶¶3-6, 15-17. Defendants shortly thereafter filed an Amended Third-Party Complaint that added Celebration Tours and Travel, Inc., a Florida corporation Defendants claim contracts with For Fun Tours to coordinate tours to destinations in the United States, including Six Flags Great Adventure in Jackson, New Jersey. ECF No. 19 at ¶4. Celebration Tours filed a Motion to Dismiss for lack of Jurisdiction in September 2017. ECF No. 30. Plaintiff filed an informal application with the Court seeking to amend his Complaint. Defendants by letter dated October 2, 2017 opposed, requesting that the Court order Plaintiff to file a formal motion, which this Court granted. See ECF No. 36. Plaintiff subsequently filed a Motion to Amend on October 30, 2017, seeking to name Six Flags Theme Parks Inc. as a Defendant, based on Defendants’ answers to interrogatories indicating that the safety and operating manual for the El Toro ride is owned by Six Flags Theme Parks Inc. See ECF No. 39-3 at pp.2-3. That Motion was adjourned, ECF No. 43, and later terminated by this Court without prejudice in December 2017 “subject to renewal after completion of the deposition of Defendants’ corporate designee.” ECF No. 47 at ¶1. This Court in April 2018 issued a Letter Order providing that the deposition of Defendants’ corporate designee “shall be conducted by Plaintiff’s counsel no later than April 20, 2018.” ECF No. 49. Also in April 2018, Judge Wolfson granted a Motion to Dismiss filed by Third Party Defendant Celebration Tours for lack of personal jurisdiction. ECF Nos. 50, 51. In May 2018, this Court stayed all deadlines and discovery pending the completion of mediation. ECF No. 52. The action was restored to the active docket by Order dated November 27, 2018. ECF No. 54. That Order set March 11, 2019 as the deadline for filing any motions to amend or join new parties. Id. That deadline was later extended to April 28, 2019. ECF No. 55. On April 26, 2019, Plaintiff filed the instant Motion. ECF No. 56. Defendants filed a Certification of Counsel in opposition to the Motion on May 6, 2019. ECF No. 58.

         II. LEGAL STANDARD

         A party may amend its pleading once as a matter of right within either (1) twenty-one days of serving it; or (2) where the pleading is one to which a responsive pleading is required, the earlier of twenty-one days following service of the responsive pleading or a motion to dismiss. Fed.R.Civ.P. 15(a)(1). Once those deadlines have expired, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave” and “[t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a). The decision to grant leave to amend rests within the sound discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 330 (1970) (citing Foman v. Davis, 371 U.S. 178, 182 (1962) (Dictum)). In determining a motion for leave to amend, courts consider the following factors: “(1) undue delay on the part of the party seeking to amend; (2) bad faith or dilatory motive behind the amendment; (3) repeated failure to cure deficiencies through multiple prior amendments; (4) undue prejudice on the opposing party; and/or (5) futility of the amendment.” Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) (quoting Foman, 371 U.S. at 182)).

         III. ANALYSIS

         Plaintiff cannot timely file an Amended Complaint as of right pursuant to Fed.R.Civ.P. 15(a). That rule limits amendments “as of right” to 21 days after the service of either a responsive pleading or a Rule 12 motion, whichever is earlier. Defendants filed a Motion to Dismiss in June 2016, ECF No. 7, followed in January 2017 by an Answer. ECF No. 12. Regardless of which date the Court were to look to it is clear Plaintiff requires either Defendant’s consent or this Court’s leave to amend the Complaint. As Defendants oppose the Motion, Plaintiff can amend the Complaint only with this Court’s leave.

         Plaintiff argues justice requires allowing him to add Six Flags Theme Parks Inc. as a Defendant. Plaintiff points first to the El Toro Standard Operating Procedures manual it obtained in discovery from Defendants, a manual stating that “[t]he information contained herein is proprietary and is owned in its’ (sic) entirety by Six Flags, Inc. This manual is to be used exclusively by authorized associates of Six Flags Theme Parks, Inc….” See Pl. Br. in Sup. of Mot., ECF No. 56 at p.3 (quoting El Toro Standard Operating Procedures, at ECF No. 56, Exhibit A) (filed under seal)). Plaintiff further points to the deposition of Jason Freeman, who testified as Defendants’ corporate designee pursuant to Fed.R.Civ.P. 30(b). Id. at pp.3-9. Plaintiff contends Mr. Freeman testified that Six Flags Inc. is not in existence and “was the company that was used prior to our bankruptcy.” Id. at p.4 (quoting Freeman Dep. at p.20:22-23). Mr. Freeman further testified, Plaintiff says, that Six Flags Theme Parks Inc., which employs him, is the parent company of Six Flags Great Adventure LLC, and that he is an officer in both entities. Id. at pp.3-4 (citing Freeman Dep. at p.20:20-25). Plaintiff contends Mr. Freeman testified that as Corporate Vice-President of Security, Safety, Health and Environmental at Six Flags Entertainment Corp., though his employment by Six Flags Theme Parks Inc., one of his jobs is to provide oversight and guidance to parks including Six Flags Great Adventure LLC. Id. at p.5 (citing Freeman Dep. at p.90:12-18). In that function, Plaintiff contends, Mr. Freeman testified that his duties include helping to create, implement and promulgate safety policies. Id. at p.6 (citing Freeman Dep. at p.91:24-25, 92:1-10). Plaintiff contends Mr. Freeman testified that one such policy that was changed was to make the no-phone policy of the adjacent Kingda Ka ride also applicable to El Toro. Id. at p.9 (citing Freeman Dep. at p.94:13-25, 95:1-3).

         Plaintiff contends the manual provided in discovery and the testimony of Mr. Freeman show that Six Flags Theme Parks Inc. “together with defendants, created, implemented and promulgated the policies and procedures including cell phone policy at the park where plaintiff was blinded.” Id. at p.10. Plaintiff says this demonstrates that the purpose of the instant motion is not “undue delay, bad faith or dilatory motive” but solely prompted by the information it obtained from Defendants in discovery. Id. Furthermore, Plaintiff says, “defendants will not be prejudiced as a result of adding this entity at this junction of the litigation.” Id.

         Defendants oppose the Motion, arguing that the “policies and procedures for operation of the El Toro roller coaster are established by Six Flags Great Adventure, LLC, based on state law ASTM standards, and the manufacturer’s requirements.” See Cert. of Eichenbaum, ECF No. 58 at ¶19. Defendants contend “the ownership of intellectual property [related to the manual] has no bearing whatsoever on the issues herein.” Id. at ¶20. Furthermore, Defendants contend, “[t]here is absolutely no evidence to even suggest that [Six Flags Entertainment Corp.] or Six Flags Theme Parks Inc. has any involvement whatsoever in these policies and procedures.” Id.

         Defendants point to different sections of the deposition where, they contend, Mr. Freeman testified that “each park creates its own [standard operating procedure] manuals.” Id. at ¶17 (quoting Freeman Dep., p, 21:15-16). Defendants say Mr. Freeman also testified that the person in charge of creating the policies at Six Flags Great Adventure LLC was Len Tutora. Id. (quoting Freeman Dep., p.22:14-19). Defendants also point to the following deposition response from Mr. Freeman, after being asked if in his role as an officer he considered the speed that the roller coasters travel: “I don’t give specific advice or guidance on the ride [standard operating procedure] unless I’m specifically asked, and on El Toro I was not asked.” Id. (quoting Freeman Dep., p.98:7-13).

         In accordance with Great Western, in considering a motion to amend the Complaint the Court must consider whether there is any (1) undue delay on the part of the party seeking to amend; (2) bad faith or dilatory motive behind the amendment; (3) repeated failure to cure deficiencies through multiple prior ...


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