1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL WILLIAMS, : Civil Action No. 4:15-00675

:

:

Plaintiff, : (Judge Brann)

:

v. :

:

INFLECTION ENERGY, LLC, :

U.S. WELL SERVICES LLC and :

U.S WELL SERVICES INC., :

:

Defendant/Third Party Plaintiff :

v. :

:

HYPERION SAFETY SERVICES, LLC, :

:

Third Party Defendant. :

MEMORANDUM

August 22, 2016

Pending before this Court is a motion for partial summary judgment filed by 

Defendant Inflection Energy, LLC (hereinafter “Inflection”) and a motion to 

dismiss/motion to strike filed by Defendant U.S. Well Services, LLC (hereinafter 

“U.S. Well”). In its motion for summary judgment, Inflection seeks summary 

judgment on its cross-claim for contractual defense and indemnity against U.S. 

Well together with the dismissal of U.S. Well’s crossclaim for contractual 

indemnification against Inflection. U.S. Well’s motion to dismiss seeks to dismiss 

Inflection’s cross-claim against U.S. Well, which requests a declaratory judgment, 

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together with a motion to strike, which seeks to strike Inflection’s second amended 

answer, affirmative defenses, and cross-claim.

The contract between Inflection and U.S. Well (hereinafter “the Master 

Service Agreement”) contains a choice of law provision which requires application 

of Colorado law. Both Inflection and U.S. Well set forth legal arguments pursuant 

to Colorado law; this Court will, therefore, assume that neither party objects to its 

application in the matters at hand.1

These matters are now ripe for disposition. In accordance with the following 

reasoning, Inflection’s motion for partial summary judgment is granted and U.S. 

Well’s motion to strike is denied. Inflection’s declaratory judgment cross-claim is 

also dismissed as moot and U.S. Well’s motion to dismiss is consequently granted.

I. BACKGROUND AND PROCEDURAL HISTORY

The instant lawsuit arises from personal injuries suffered by Plaintiff, 

Michael Williams, while performing work for Trinity Medical Management 

Services LLC and/or Hyperion Safety Services, LLC (hereinafter “Hyperion”), on 

a well site owned and operated by Inflection in Lycoming County, Pennsylvania. 

Plaintiff initiated the present action on January 5, 2015, by filing a complaint 

against Inflection, U.S. Well, and U.S. Well Services, Inc. in the Eastern District of 

 

1

See Gay v. CreditInform, 511 F.3d 369, 389 (3d Cir. 2007) (“Pennsylvania courts generally honor the intent of the 

contracting parties and enforce choice of law provisions in contracts executed by them.”). The court in Gay goes on 

to say that Pennsylvania courts have adopted section 187 of the Restatement (Second) Conflict of Laws, which 

provides that contractual choice of law provisions will be enforced except in certain circumstances. Gay, 511 F.3d 

at 389.

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Louisiana. Shortly thereafter, the action was transferred to this Court. Both 

Inflection and U.S. Well filed answers to Plaintiff’s complaint. U.S. Well’s answer, 

however, included a crossclaim against Inflection for common law contribution 

and indemnification, as well as contractual indemnification. In response, Inflection

filed a motion to dismiss U.S. Well’s cross-claim2and an amended answer3in 

which it asserted a breach of contract cross-claim against U.S. Well. 

In its motion to dismiss, Inflection sought to dismiss U.S. Well’s contractual 

indemnification count on the basis that, pursuant to the Master Service Agreement, 

Inflection was not required to indemnify U.S. Well for personal injury claims 

initiated by U.S. Well’s own subcontractors. This Court denied Inflection’s motion 

because, at the time it was filed, it was unclear which party, U.S. Well or 

Inflection, had actually contracted with Hyperion, Plaintiff’s employer. 

Three days after this Court’s Order was docketed, U.S. Well filed a thirdparty complaint against Hyperion seeking indemnification pursuant to a written 

contract it had entered into with U.S. Well.4Inflection then filed the instant motion 

for partial summary judgment seeking indemnification from U.S. Well pursuant to 

the Master Service Agreement.5Inflection also filed a second amended answer 

which added a cross-claim against U.S. Well, seeking contribution and indemnity 

 

2 ECF No. 28.

3 ECF No. 27.

4 ECF No. 43.

5 ECF No. 56.

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and seeking a declaratory action pursuant to 28 U.S.C. § 2201.6In response, U.S 

Well filed the instant motion to dismiss and motion to strike.

II. MOTION FOR PARTIAL SUMMARY JUDGMENT

Inflection contends that it is entitled to judgment in its favor on both its 

cross-claim for contractual defense and indemnity as well as on U.S. Well’s crossclaim for contractual defense and indemnity. It argues that it is indisputable that 

Plaintiff was employed by Hyperion and that U.S. Well hired Hyperion as a 

subcontractor. It contends that there is no genuine issue of material fact regarding 

the Master Service Agreement, and that, pursuant to the plain language of the 

same, U.S. Well must defend and indemnify Inflection. 

A. Legal Standard

Summary judgment is appropriate where “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.”7 A fact is “material” where it “might affect the outcome of the suit 

under the governing law.”8 A dispute is “genuine” where “the evidence is such 

that a reasonable jury,” giving credence to the evidence favoring the nonmovant 

and making all inferences in the nonmovant’s favor, “could return a verdict for the 

nonmoving party.”9

 

6 ECF No. 67.

7

Fed. R. Civ. P. 56(a). 

8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

9

Id.

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The burden of establishing the nonexistence of a “genuine issue” is on the 

party moving for summary judgment.10 The moving party may satisfy this burden 

by either (i) submitting affirmative evidence that negates an essential element of 

the nonmoving party’s claim; or (ii) demonstrating to the Court that the nonmoving 

party’s evidence is insufficient to establish an essential element of the nonmoving 

party’s case.11 

Where the moving party’s motion is properly supported, the nonmoving 

party, to avoid summary judgment in his opponent’s favor, must answer by setting 

forth “genuine factual issues that properly can be resolved only by a finder of fact 

because they may reasonably be resolved in favor of either party.”12 For movants 

and nonmovants alike, the assertion “that a fact cannot be or is genuinely disputed 

must” be supported by “materials in the record” that go beyond mere allegations, 

or by “showing that the materials cited do not establish the absence or presence of 

a genuine dispute, or that an adverse party cannot produce admissible evidence to 

support the fact.”13 

“When opposing summary judgment, the non-movant may not rest upon 

mere allegations, but rather must ‘identify those facts of record which would 

 

10 In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) 

(Brennan, J., dissenting)).

11 Id. at 331. 

12 Anderson, 477 U.S. at 250. 

13 Fed. R. Civ. P. 56(c)(1); see also Anderson, 477 U.S. at 248–50.

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contradict the facts identified by the movant.’”14 Furthermore, “[i]f a party fails to 

properly support an assertion of fact or fails to properly address another party’s 

assertion of fact as required by Rule 56(c), the court may . . . consider the fact 

undisputed for purposes of the motion.”15 

In deciding the merits of a party’s motion for summary judgment, the 

Court’s role is not to evaluate the evidence and decide the truth of the matter, but 

to determine whether there is a genuine issue for trial.16 Credibility determinations 

are the province of the factfinder, not the district court.17 Although the Court may 

consider any materials in the record, it need only consider those materials cited.18

B. Discussion

As stated above, Inflection argues that it is entitled to judgment in its favor 

on both its cross-claim for contractual defense and indemnity and on U.S. Well’s 

cross-claim for contractual defense and indemnity based on the plain language of 

the Master Service Agreement. In opposing Inflection’s motion, U.S. Well 

advances two arguments. I will discuss each in turn.

 

14 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003).

15 Fed. R. Civ. P. 56(e)(2).

16 Anderson, 477 U.S. at 249.

17 BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

18 Fed. R. Civ. P. 56(c)(3).

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1. Inflection’s motion is premature in that the parties have yet to conduct 

adequate discovery to determine the parties’ obligations. 

U.S. Well argues that it, as well as Inflection, have indemnification 

obligations under the Master Service Agreement and, therefore, discovery is 

needed to determine the liability of the parties, if any. It further contends that, 

according to the Plaintiff’s complaint, Inflection was negligent in failing to

maintain the premises in safe condition by removing snow and ice. Therefore, 

discovery is needed to discover facts establishing negligence to determine liability. 

Colorado law generally allows contracting parties to enter into indemnity 

agreements; they are “subject to the same rules of construction that govern” 

general contract interpretation.19 “Hence [an indemnity agreement] should be 

enforced according to the plain and generally accepted meaning of its language and 

interpreted in its entirety to give effect to all of its provisions so that none are 

rendered meaningless.”20 They should generally be construed to effectuate rather 

than defeat the parties’ intentions.21 Any ambiguities in the language of the 

provision will be resolved against the party seeking indemnity.22

 

19 See Mid Century Ins. Co. v. Gates Rubber Co., 43 P.3d 737, 739 (Colo. App. 2002); see also East Ridge of Fort 

Collins, LLC v. Larimer & Weld Irrigation Co., 109 P.3d 969, 974 (Colo. 2005) (“It is axiomatic that a contract 

must be construed to ascertain and effectuate the intent of the parties as determined primarily from the language of 

the contract. To this end, the instrument’s language must be examined and construed in harmony with the plain and 

generally accepted meaning of the words used.”).

20 Id.

21 See Williams v. White Mountain Const. Co., Inc., 749 P.2d 423, 426 (Colo. 1988) (citing Gardner Bros. & Glenn 

Constr. Co. v. American Surety Co., 37 P.2d 384, 386 (Colo. 1934).

22 Williams, 749 P.2d at 426.

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The contract at issue, the Master Service Agreement, contains reciprocal 

indemnification provisions. It states, in relevant part:

5.2 [U.S. Well] shall release Company Group from any liability for, and 

shall protect, Defend and indemnify Company Group from and against all 

Losses, without limit and without regard to the cause or causes thereof or 

the negligence of any party or parties, arising in connection herewith in 

favor of Contractor Group and Contractor Group’s employees on account of 

bodily injury, death, or damage to property. . . .

5.3 [Inflection] shall release Contractor Group from any liability for, and 

shall protect, Defend and indemnify Contractor Group from and against all 

Losses, without limit and without regard to the cause or causes thereof or 

the negligence of any party or parties, arising in connection herewith in 

favor of Company Group or Company Group’s employees on account of 

bodily injury, death or damage to property. . . .23

In Section 5.1(a), “Company Group” is defined as “[Inflection], its parent, 

affiliate, and subsidiary entities, its and their joint venturers, joint interest owners, 

partners, co-owners, co-lessees, contractors and subcontractor of any tier (other 

than Contractor and its subcontrators) and the respective directors, officers, agents, 

representatives, employees and invitees of all the foregoing.”24 In Section 5.1(b), 

“Contractor Group” is defined as “[U.S. Well], [U.S. Well]’s parent, affiliate, and 

subsidiary entities, and subcontractors of any tier, and each of their respective 

directors, officers, agents, representatives, employees and invitees.”25

 

23 ECF No. 58-1 at 4 (emphasis added).

24 Id. at 3.

25 Id. at 4.

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In the case at bar, it is undisputed that Plaintiff was an employee of 

Hyperion. After considering the agreement between U.S. Well and Hyperion,26

together with U.S. Well’s answer to Inflection’s first amended answer27 and U.S. 

Well’s third-party complaint against Hyperion28 (in which U.S. Well seeks 

contribution and indemnification from Hyperion pursuant to the agreement 

between U.S. Well and Hyperion), it is now clear to this Court that Hyperion was a 

subcontractor of U.S. Well. 

According to the plain language of the Master Service Agreement, U.S. Well 

agreed to indemnify Inflection for and defend from “all losses” arising from bodily 

injury, death, or damage to the property of the Contractor Group or its 

employees.29 “Contractor group” includes “subcontractors of any tier.”30 As 

Hyperion is U.S. Well’s subcontractor, U.S. Well has agreed to indemnify 

Inflection for the losses arising from the bodily injuries of Hyperion’s employees.

Not only did U.S. Well contract to indemnify Inflection for these losses, it

agreed to do so “without regard to the cause or causes thereof or the negligence of 

any party or parties.”

31 An indemnification provision that purports to render the 

indemnitor liable for the indemnitee’s conduct, while lawful, must contain “clear 

 

26 ECF No 58-1 at 31.

27 ECF No. 32 at 7.4 (“It is admitted that U.S. Well Services, LLC contracted with Plaintiff’s employer, Hyperion 

Safety Services, LLC to perform a portion of that work.”).

28 ECF No. 43.

29 ECF No. 58-1 at 5.2.

30 Id. at 5.1(b).

31 Id. at 5.2.

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and unequivocal language to that effect.”32 This means that “a contractual 

provision should not be construed to permit an indemnitee to recover for his own 

negligence unless the court is firmly convinced that such an interpretation reflects 

the intention of the parties.”33 While agreements that indemnify for the negligent 

conduct of an indemnitee are generally strictly construed, broad, all-inclusive 

language may nevertheless meet the rule of strict construction when it is sufficient 

to express the parties’ intent in a commercial context.34 This is because courts have 

found that there is parity in bargaining power between sophisticated corporations 

bargaining at arms-length.35

In the matter at hand, neither party advances any argument that the 

indemnification provision at hand is unclear. Indeed, it is not. The contract 

unambiguously states that all losses arising from bodily injury, death, or damage to 

property of an employee or subcontractor will be indemnified “without regard to 

the cause . . . or negligence of any party . . . ”36 Thus, U.S. Well’s contention that 

this motion is premature is without merit. In accordance with the plain language of 

the contract, U.S. Well must indemnify Inflection without regard to any negligence 

on its part. 

 

32 Williams, 749 P.2d at 426.

33 Public Service Co. v. United Cable Television of Jeffco, Inc., 829 P.2d 1280, 1283-84 (Colo. 1992) (quoting U.S.

v. Seckinger, 397 U.S. 203, 211 (1970)).

34 Public Service Co., 829 P.2d at 1284-85.

35 Id.

36 ECF No. 58-1 at 5.2.

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2. Colorado’s Anti-Indemnity Statute precludes applicability of the indemnity 

provisions in the Master Service Agreement

U.S. Well maintains that the indemnification provisions of the Master 

Service Agreement are void and unenforceable under Colorado’s Anti-Indemnity 

Statute. In response, Inflection argues that the Anti-Indemnity Statute is 

inapplicable to the Master Service Agreement because it applies only to 

construction contracts.

Generally, 13 C.R.S. §13-21-111.5 provides that, “[i]n an action brought as a 

result of a death or injury to person or property, no defendant shall be liable for an 

amount greater than that represented by the degree or percentage of the negligence 

or fault attributable to such defendant that produced the claimed injury . . .”37

Section 13-21-111.5 allows for the admissibility of evidence of negligence or fault 

of a person not a party to the action in order to limit the liability of the defendant 

by the degree or percentage of the non-party’s fault.38

In April 2007, Colorado enacted a statute amending §13-21-111.5 by adding 

subsection (6), also referred to as the Anti-Indemnity Statute.

39 Subsection (6) 

generally voids provisions in construction contracts that require a party to 

“indemnify, insure, or defend in litigation another person against liability for 

damage arising out of death or bodily injury to persons or damage to property 

 

37 13 C.R.S. § 13-21-111.5(1).

38 13 C.R.S. § 13-21-111.5(3)(a).

39 See Brian G. Eberle, S.B. 07-087 and the Enforceability of Indemnification Provisions in Colorado Construction 

Contracts, 36-SEP COLO. LAW. 59 (2007). 

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caused by the negligence or fault of the indemnitee or any third party under the 

control or supervision of the indemnitee.”40

The Anti-Indemnity Statute was enacted in response to a problematic trend 

in construction contracts.41 Construction businesses were using broad indemnity 

provision to shift financial responsibility for their negligence to others, which, in 

turn, made it more difficult for general contractors to obtain liability insurance.42

The Anti-Indemnity Statute, therefore, prevents a party to a construction agreement 

from transferring responsibility of its own negligence to the other party.43

Furthermore, in order to prevent parties from evading the effects of subsection (6) 

through choice-of-law provisions applying the law of other states which allow this 

practice, the Anti-Indemnity Statute provides that Colorado law applies “to every 

construction agreement affecting improvements to real property within the state of 

Colorado.”44 The construction agreements to which subsection (6) applies include 

Contract[s], subcontract[s], or agreement[s] for materials or labor for 

the construction, alteration, renovation, repair, maintenance, design, 

planning, supervision, inspection, testing, or observation of any

building, building site, structure, highway, street, roadway bridge, 

viaduct, water or sewer system, gas or other distribution system, or 

other work dealing with construction or for any moving, demolition, 

or excavation connected with such construction.45

 

40 13 C.R.S. § 13-21-111.5(6)(b).

41 Eberle, supra note 39 at 60.

42 Id. at 59.

43 Id. at 60.

44 13 C.R.S. § 13-21-111.5(6)(g).

45 13 C.R.S. § 13-21-111.5(6)(e)(I).

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This Court agrees with Inflection that the Anti-Indemnity Statute does not 

apply to the matter at hand. Inflection and U.S. Well entered into a contract for the 

operation of a drill site in Pennsylvania and not a construction agreement as 

defined by the statute. While § 13-21-111.5 applies generally to all civil litigation, 

subsection 6 applies only to indemnification clauses in contracts “for materials or 

labor for the construction . . . of any building, building site, structure, [etc.].”46 In 

fact, at least one court refused to apply the Colorado Ant-Indemnification Statute 

to indemnification clauses in Master Service Agreements, even in construction 

cases, because the clause was not in the construction agreement itself.47

Curiously, other states have anti-indemnification statutes that could apply to 

the situation at hand. The Texas Oilfield Anti-Indemnification Act applies to 

contractual agreements relating to oil wells and oilfields.48 Similarly, the Louisiana 

Oilfield Indemnity Act applies to contracts “pertaining to wells for oil, gas or 

water.”49 Wisconsin also has an anti-indemnification statute which provides that 

indemnification clauses in agreements “pertaining to any well for oil, gas or water, 

or mine” which indemnify for losses due to death or bodily injury are void when 

the negligence is that of the indemnitee.50 Colorado, however, does not have an 

 

46 13 C.R.S. § 13-21-111.5(6)(g).

47 Higby Crane Service, LLC v. National Helium, LLC, 2015 WL 5692078 (D. Kansas September 28, 2015) 

(“Moreover, because the [Colorado] Anti–Indemnification Statute specifically applies to construction agreements, 

and not to MSA's, it is not applicable.”). 

48 Tex. Civ. Prac. & Rem. Code Ann. § 127.001-007.

49 La. Rev. Stat. Ann. § 9:2780(B).

50 Wyo. Stat. Ann. § 30-1-131.

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anti-indemnification statute pertaining to oil and gas agreements. As the parties 

have agreed to apply Colorado law to the Master Service Agreement at hand, the 

indemnification provision does not violate Colorado public policy.51

III. U.S. WELL’S MOTION TO DISMISS/MOTION TO STRIKE

A. Standard 

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a 

motion to dismiss for “failure to state a claim upon which relief can be granted.” 

Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation 

by dispensing with needless discovery and factfinding.”52 “Rule 12(b)(6) 

authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”53

This is true of any claim, “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.”54

Beginning in 2007, the Supreme Court of the United States initiated what 

some scholars have termed the Roberts Court’s “civil procedure revival” by 

significantly tightening the standard that district courts must apply to 12(b)(6) 

motions.55 In two landmark decisions, Bell Atlantic Corporation v. Twombly and 

Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by 

 

51 Even if Colorado law was not applied to the matter at hand, there is no anti-indemnification statute under 

Pennsylvania law that would be pertinent to the Master Service Agreement in this case.

52

 In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.) (quoting Szabo v. 

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)). Neitzke v. Williams, 490 U.S. 

319, 326–27 (1989).

53

 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).

54

 Neitzke, 490 U.S. at 327.

55

 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 313 (2012).

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“signal[ing] to lower-court judges that the stricter approach some had been taking 

was appropriate under the Federal Rules.”56 More specifically, the Court in these 

two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v. 

Gibson and replaced it with a more exacting “plausibility” standard.57

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 

to relief that is plausible on its face.’”58 “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.”59 “Although the 

plausibility standard does not impose a probability requirement, it does require a 

pleading to show more than a sheer possibility that a defendant has acted 

unlawfully.”60 Moreover, “[a]sking for plausible grounds . . . calls for enough facts 

to raise a reasonable expectation that discovery will reveal evidence of 

[wrongdoing].”61

The plausibility determination is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”62 No matter 

 

56

 550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.

57

 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that Twombly retired the 

Conley no-set-of-facts test”).

58

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

59

 Iqbal, 556 U.S. at 678.

60

 Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. Jan. 11, 2016) (Jordan, J.) (internal quotations and 

citations omitted).

61

 Twombly, 550 U.S. at 556.

62

 Iqbal, 556 U.S. at 679.

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the context, however, “[w]here a complaint pleads facts that are ‘merely consistent 

with’ a defendant’s liability, it ‘stops short of the line between possibility and 

plausibility of entitlement to relief.’”63

When disposing of a motion to dismiss, a court must “accept as true all 

factual allegations in the complaint and draw all inferences from the facts alleged 

in the light most favorable to [the plaintiff].”64 However, “the tenet that a court 

must accept as true all of the allegations contained in the complaint is inapplicable 

to legal conclusions.”65 “After Iqbal, it is clear that conclusory or ‘bare-bones’ 

allegations will no longer survive a motion to dismiss.”66 “Threadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements, do not 

suffice.”67

As a matter of procedure, the United States Court of Appeals for the Third 

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court 

reviewing the sufficiency of a complaint must take three steps. First, it 

must tak[e] note of the elements [the] plaintiff must plead to state a 

claim. Second, it should identify allegations that, because they are no 

more than conclusions, are not entitled to the assumption of truth. 

Finally, [w]hen there are well-pleaded factual allegations, [the] court 

should assume their veracity and then determine whether they 

plausibly give rise to an entitlement to relief.68

 

63

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

64

 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

65

 Iqbal, 556 U.S. at 678 (internal citations omitted).

66

 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

67

 Iqbal, 556 U.S. at 678.

68

 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

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B. Discussion

1. Motion to Strike

U.S. Well seeks to strike Inflection’s second amended answer69 for failing to 

obtain leave of court. It argues that Inflection failed to adhere to Federal Rule of 

Civil Procedure 15(a), which provides that amendments must be obtained by leave 

of court or written consent of the adverse party.70 Inflection argues that leave of 

court was not required in this case because this Court’s Case Management Order 

allowed for amendments to pleadings prior to March 15, 2016. 

Federal Rule of Civil Procedure 15(a) allows a party to amend its pleading 

within twenty-one days of serving it, by obtaining the opposing party’s written 

consent to do so, or by leave of court.71 Federal Rule of Civil Procedure 16 further 

requires a court to issue a scheduling order that limits the time to join other parties, 

complete discovery, file motions, and amend pleadings.72

This Court’s Case Management Order provides a schedule with the time 

limits required by Rule 16.73 The second listed date establishes a deadline of March 

15, 2016 as “Defendants final date for amending pleadings.”74 This final date to 

 

69 Inflection filed its first answer on April 29, 2015 (ECF 23), which contained no cross-claims against U.S. Well, its 

amended answer on September 2, 2015 (ECF No. 41), and its second amended answer on March 9, 2016 (ECF No. 

67). 

70 Fed. R. Civ. P. 15(a).

71 Id.

72 Fed. R. Civ. P. 16(b)(3)(A).

73 ECF No 55. 

74 Id. at 3.

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amend the pleadings, however, does not give the parties permission to disregard 

the requirements of Rule 15(a). Instead, the final date in the Case Management 

Order sets a limit on the time that a party can amend its pleading by written 

consent of the opposing party. That is to say, the Case Management Order does not 

anticipatorily grant a party leave to amend its pleadings. The party must still seek 

leave of court.

Be that as it may, the Court will not strike Inflection’s second amended 

answer. The Court acknowledges that the Case Management Order does not clearly 

or adequately explain the parameters of the time limit with regard to Rule 15(a) 

and it notes Inflection’s reasonable, albeit incorrect, interpretation. Furthermore, 

had Inflection sought leave of court, it would have been granted as Rule 15(a) also 

requires that “court[s] should freely give leave when justice so requires.”75

Inflection filed its second amended answer after U.S. Well filed its third-party 

complaint against Hyperion. I would have consequently granted Inflection leave to 

amend its answer in light of the changed circumstances.

2. Motion to Dismiss

Alternatively, U.S. Well seeks to dismiss Inflection’s third cross-claim

which seeks a declaratory judgment declaring the parties’ rights and obligations 

under the Master Service Agreement. U.S. Well argues that the case is not yet ripe 

 

75 Fed. R. Civ. P. 15(a).

Case 4:15-cv-00675-MWB Document 90 Filed 08/22/16 Page 18 of 19
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for disposition because “Inflection has not demonstrated the necessary immediacy 

and reality to warrant the issuance of a declaratory judgment.”76 Inflection, on the 

other hand, maintains that the matter is ripe for judicial determination. 

In light of this Court’s ruling on Inflection’s motion for partial summary 

judgment above, the Court need not rule on the merits of U.S. Well’s ripeness 

argument. Inflection seeks a declaratory judgment declaring the rights and 

obligations of Inflection and U.S. Well under the Master Service Agreement. As 

the rights and obligations have been set forth above, the Court will grant U.S. 

Well’s motion and will dismiss Inflection’s cross-claim seeking a declaratory 

judgment as moot.

IV. CONCLUSION

In accordance with the foregoing reasoning, Inflection’s motion for partial 

summary judgment is granted, U.S. Well’s motion to strike is denied, and U.S. 

Well’s motion to dismiss is granted, and Inflection’s cross-claim seeking a 

declaratory judgment dismissed as moot.

An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

 

76 ECF No. 72 at 4.

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