Summary
refusing to quash service where complaint named subsidiary of the intended defendant and defendant held itself out as the subsidiary in the contract in question
Summary of this case from Winston & Strawn LLP v. Law Firm of John Arthur EavesOpinion
Civil Action No. 04-1357 (RMC).
March 7, 2005
ORDER
The Catholic Cemeteries of the Archdiocese of Washington, Inc. ("Catholic Cemeteries") sues for damages to burial grounds caused by severe flooding in January 2003 at Mount Olivet Cemetery ("Mt. Olivet"), located at 1300 Bladensburg Road, N.E., Washington, DC. Catholic Cemeteries alleges that Nordlinger Investment Corporation ("Nordlinger") and Brink's Incorporated ("Brink's"), respectively owner and lessee of the immediately-adjacent property, are responsible for changes to the water course of an underground stream that resulted in flooding.
Nordlinger has answered the complaint; Brink's has not. At first, Brink's filed a motion to dismiss. Thereafter, it filed a third-party complaint that appears to acknowledge many of the facts in Catholic Cemeteries's complaint. The Brink's third-party complaint seeks indemnity and contribution from Donohoe Construction Company, Meyer Consulting Engineers, P.C., Mr. William H. Doggett, AIA, and Wiles Mensch Corporation. These third-party defendants were the general contractor, consulting engineers, architect and civil engineers on the construction of a parking garage on the Nordlinger property for use by Brink's. All third-party defendants have answered the complaint except Donohoe Construction Company, which has filed a motion to quash. Catholic Cemeteries has filed a motion for leave to amend its complaint to add defendants and to augment the factual allegations and causes of action previously plead in response to the Brink's motion to dismiss.
Catholic Cemeteries seeks to add as party defendants: 1) Gerson N. Nordlinger, Jr., in his individual capacity; 2) Sarah H. Nordlinger, Gerson N. Nordlinger, Jr., and Gerson Nordlinger, III, in their representative capacities as Trustees of the Marital Trust under the Will of Samuel G. Nordlinger for the benefit of Sarah H. Nordlinger; 3) Bank of America Corporation, in its representative capacity as Trustee of the Testamentary Trusts under the Last Will and Testament of William P. Nordlinger; and 4) The Donohoe Companies, Inc., d/b/a Donohoe Construction Company.
Catholic Cemeteries's motion to amend the complaint will be granted as a matter of right as to Brink's because the Court has not decided the Brink's motion to dismiss. FED. R. CIV. P. 15(a) ("A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . ."); James V. Hurson Assocs. v. Glickman, 229 F.3d 277, 283 (D.C. Cir. 2000) ("We have repeatedly clarified that a motion to dismiss is not a responsive pleading for the purposes of Rule 15."); Nat'l City Mortgage Co. v. Navarro, 220 F.R.D. 102, 104 (D.D.C. 2004) ("If there is more than one defendant, and not all have served responsive pleadings, the plaintiff may amend the complaint as a matter of course with regard to those defendants that have yet to answer.").
In light of the allegations contained in both Catholic Cemeteries's amended complaint and in the third-party complaint, the Court will deny the Brink's motion to dismiss without prejudice. Brink's argues that Catholic Cemeteries does not allege the requisite intent to support a claim for trespass, that nuisance is not a separate cause of action, and that Brink's could not be guilty of negligence because it had no notice of the condition that resulted in the flooding. On the current record of factual assertions advanced by Catholic Cemeteries and Brink's, it cannot be said that there is no possible set of facts that Catholic Cemeteries could prove to support its claim and entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ("[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.").
The Donohoe Companies, Inc. has moved to quash service, which was directed to "Donohoe Construction Company," an unincorporated subsidiary of The Donohoe Companies, Inc. Motion to Quash at 1. In opposing the motion to quash, Brink's notes that: Donohoe Construction Company is the named party on the construction contract with Brink's; that these parties have engaged in lengthy correspondence concerning Brink's right to indemnification and contribution without Donohoe making this distinction; and that the third-party complaint was served on the registered agent of The Donohoe Companies, Inc. In the meantime, as noted, Catholic Cemeteries has added The Donohoe Companies, Inc. as a named defendant in the amended complaint. There can be no question of prejudice or surprise to The Donohoe Companies, Inc. "[A] misnomer in process is not fatal, where the defendant is actually before the court, has been served and is not prejudiced by the mistake." Tention v. Southern Pacific R.R. Co., 336 F. Supp. 25, 25 (D.S.C. 1972) (citing Cooney v. Milwaukee R.R. Co., 34 F.R.D. 508 (1964)). Inasmuch as The Donohoe Companies, Inc. held itself out on the contract in question as Donohoe Construction Company and that The Donohoe Companies, Inc. is already a defendant in this very suit, it would grossly elevate form over function to grant the motion to quash. The motion will be denied and The Donohoe Companies, Inc. will be deemed to have been named as a defendant from the date of filing the third-party complaint.
Answers to Catholic Cemeteries's complaint are due from Brink's and the new defendants. An answer to the third-party complaint is due from The Donohoe Companies, Inc. An initial scheduling conference will be set as soon as all answers are received.
For the reasons stated, the motion to dismiss [dkt # 5] and the motion to quash [dkt # 14] are DENIED. The motion for leave to file an amended complaint [dkt # 15] is GRANTED.
The motion for leave to file an amended complaint could be denied as moot because Catholic Cemeteries has an absolute right to file an amended complaint against any and all defendants who have not filed a responsive pleading. To make sure the docket sheet is clear, however, the Court will simply grant this motion.
SO ORDERED.