1They also move to strike or exclude the expert testimony of

Charles D. Wood (“Wood”), President, Chairman of the Board, and

owner of AMS. AMS seeks to offer Wood’s expert testimony on the

authority of ACT and Brandert under the Agreements, the termination

of the Agreements, AMS’s role as a professional employer

organization, and the damages AMS suffered. The court denies the

motion without prejudice to its being renewed if, after the court’s

decision today and its later ruling on AMS’s second motion for

summary judgment, there are issues to be tried that will involve

his expert testimony. The court suggests no view concerning

whether it will later allow his expert testimony on any particular

issue.

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AMS STAFF LEASING, NA, LTD., §

 §

Plaintiff-counterdefendant,§

 §

VS. §

 §

ASSOCIATED CONTRACT §

TRUCKMEN, INC., et al., §

 §

Defendants- § Civil Action No. 3:04-CV-1344-D

counterplaintiffs- §

third-party plaintiffs, §

 §

VS. §

 §

PACESETTER NATIONAL §

CORPORATION d/b/a PACESETTER §

ADJUSTMENT COMPANY, §

 §

Third-party defendant. §

MEMORANDUM OPINION

 AND ORDER 

Defendants Associated Contract Truckmen, Inc. (“ACT”) and

Dave Brandert (“Brandert”) move for partial summary judgment as to

plaintiff AMS Staff Leasing, NA’s (“AMS’s”) remaining tort claims

for fraud, fraudulent inducement, and negligent misrepresentation.1

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 1 of 20 PageID 3906
2

AMS I recounted the evidence in a light favorable to ACT and

Brandert as the summary judgment nonmovants and drew all reasonable

inferences in their favor. See AMS I, 2005 WL 3148284, at *1 n.5

(citing Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000)). AMS,

of course, is the nonmovant with respect to ACT and Brandert’s

motion for partial summary judgment, and the court must therefore

view the facts and draw all reasonable inferences in AMS’s favor.

See, e.g., Clift, 210 F.3d at 270.

3The court held that AMS did not bring a breach of contract

action against Brandert. See AMS I, 2005 WL 3148284, at *6.

- 2 -

AMS moves for leave to file a second motion for summary judgment

and for leave to file a second amended complaint. For the reasons

that follow, the court grants defendants’ motion for partial

summary judgment, grants in part and denies in part as moot AMS’s

motion for leave to file a second summary judgment motion, and

denies AMS’s motion for leave to file a second amended complaint.

I

This lawsuit is the subject of a prior memorandum opinion and

order of the court. See AMS Staff Leasing, NA v. Associated

Contract Truckmen, Inc., 2005 WL 3148284 (N.D. Tex. Nov. 21, 2005)

(Fitzwater, J.) (“AMS I”). The court adopts the recitation of

facts and procedural history set forth in that opinion, and it

assumes the parties’ familiarity with the rulings.2

In AMS I the court granted AMS’s motion for summary judgment

as to AMS’s breach of contract claim against ACT,3 ACT’s and

Brandert’s breach of contract counterclaims, ACT’s fraud

counterclaim, and two of four grounds for Brandert’s fraud

counterclaim. See id. at *7, *9-*10. The court denied AMS’s

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 2 of 20 PageID 3907
4The third-party action of ACT and Brandert against Pacesetter

National Corporation d/b/a Pacesetter Adjustment Company was

dismissed on December 14, 2005.

- 3 -

motion as to its claims against ACT and Brandert for fraud,

fraudulent inducement, and negligent misrepresentation, and it

denied summary judgment as to two of four grounds for Brandert’s

fraud counterclaim. Id. at *8-*10. ACT and Brandert now move for

partial summary judgment dismissing AMS’s remaining claims,

contending that AMS has failed to discharge its summary judgment

burden. AMS moves for leave to file a second summary judgment

motion to address its fraud claim and Brandert’s two remaining

grounds of his fraud counterclaim, and it moves for leave to amend

to add an alternative claim for negligence.4

II

The court turns first to ACT and Brandert’s motion for partial

summary judgment.

A

Because ACT and Brandert will not have the burden at trial as

to AMS’s claims, they can obtain summary judgment by pointing the

court to the absence of evidence to support them. See Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986). ACT and Brandert have

done this in their motion, pointing to the absence of evidence of

each element of a fraud, fraudulent inducement, and negligent

misrepresentation claim. AMS must therefore go beyond its

pleadings and designate specific facts showing there is a genuine

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 3 of 20 PageID 3908
- 4 -

issue for trial. See id. at 324; Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary

judgment is mandatory if it fails to meet this burden. Little, 37

F.3d at 1076.

B

AMS contends that ACT and Brandert committed fraud when, in

issuing false certificates of insurance (“COIs”) to long-haul

truckers, they intended for the truckers to repeat to AMS, and the

truckers in fact repeated, the false information contained therein

for the purpose of collecting workers’ compensation benefits in the

event of a claim.

To establish a claim for fraud under Texas law, AMS must

proffer evidence that defendants:

(1) made a material representation, (2) that

was false when made, (3) [they] knew the

representation was false, or made it

recklessly without knowledge of its truth and

as a positive assertion, (4) [they] made the

representation with the intent that [AMS]

should act upon it, and (5) [AMS] acted in

reliance upon it and suffered injury as a

result. 

Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313

F.3d 305, 322 (5th Cir. 2002) (Fitzwater, J.) (citing Beijing

Metals & Minerals Imp./Exp. Corp. v. Am. Bus. Ctr. Inc., 993 F.2d

1178, 1185 (5th Cir. 1993) (applying Texas law)). Both sides

recognize that AMS must demonstrate that ACT and Brandert made a

false representation on which AMS relied.

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 4 of 20 PageID 3909
- 5 -

AMS alleges that ACT and Brandert issued false COIs indicating

that National Fire Insurance Company of Hartford (“National Fire”),

a wholly owned subsidiary of Continental Casualty Company (“CNA”),

had issued to ACT a workers’ compensation insurance policy. AMS

maintains that the policy had in fact been issued only to AMS. It

contends that each time ACT and Brandert issued a COI to a trucker,

they made various misrepresentations. AMS points, inter alia, to

defendants’ deemed admissions. As the court explained in AMS I,

however, issuance of the false COIs did not alone constitute fraud,

because the conduct was directed at others——the long-haul truckers

and defendants’ insurance broker——not at AMS. See AMS I, 2005 WL

3148284, at *7. AMS therefore contends that ACT and Brandert

intended the truckers to repeat the false information to AMS for

the purpose of obtaining workers’ compensation benefits. Both

parties acknowledge that AMS may properly demonstrate a fraud claim

by an indirect representation. That is, “[a] person intending to

defraud another may make the representation to . . . another with

the intent that it should be repeated to the intended party for the

purpose of deceiving him.” RTC v. Bright, 1993 U.S. Dist. LEXIS

21465, at *12 (N.D. Tex. Mar. 31, 1993)(Fitzwater, J.); see also

Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573,

578-79 (Tex. 2001). 

The dispositive question in this case, however, is whether AMS

has designated specific facts that would permit a reasonable trier

 

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- 6 -

of fact to find (1) that ACT and Brandert intended for AMS to rely

upon the false COIs and/or the false information contained therein

and (2) that AMS relied on the false COIs and/or the false

information contained therein. AMS points to Brandert’s deposition

testimony, in which he acknowledged that he “intended” for a

particular trucker to present a COI to AMS “to get the coverage

that [Brandert] promised that [the trucker] would have.” P. Br. 14

(citing App. 46). AMS has therefore designated evidence that would

permit a reasonable trier of fact to find that ACT and Brandert

intended for truckers to furnish COIs to AMS and thereby to repeat

the false information. 

AMS has failed, however, to identify specific facts from which

a reasonable trier of fact could find that AMS relied on the false

COIs and/or the false information contained therein. See Admiral

Ins. Co. v. Heath Holdings USA, Inc., 2004 WL 1144062, at *5 n.5

(N.D. Tex. May 21, 2004) (Fish, C.J.) (“[A] misrepresentation may

arrive indirectly through an intermediary; however, reliance

directly upon that misrepresentation is required.”); see also Ernst

& Young, 51 S.W.3d at 577 (requiring reliance on alleged

misrepresentation, which reliance induced action or inaction on

plaintiff’s part and caused pecuniary loss). In fact, AMS’s theory

of the case is mutually inconsistent with the concept that it was

defrauded. AMS does not assert that it relied on COIS or false

information in them. Charles D. Wood (“Wood”), the President, CEO,

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 6 of 20 PageID 3911
- 7 -

and owner of AMS, testified that the COIs were “not of any

consequence” in paying workers’ compensation claims. D. App. 649

(“If you had your payments in and a list of employers covered,

you’re taken care of. Whether a [COI] was issued to them, it

doesn’t make any difference anyway.”). Instead, AMS knew the COIs

contained false information. What AMS complains about is that

truckers relied on the COIs to obtain benefits under the policy,

which in turn exposed AMS to liability under the terms of the

contract with CNA.

In sum, AMS maintains that the COIs were fraudulently issued,

contained false information, were intended to be presented to AMS,

and exposed AMS to liability. This does not describe a fraud claim

against AMS because, at a minimum, there is no basis to find

reliance by AMS. At most, AMS is asserting a claim based on

conduct that defrauded the truckers and that, as a consequence,

financially impacted AMS. The court therefore grants summary

judgment in defendants’ favor on AMS’s fraud claim.

C

AMS next contends that ACT and Brandert fraudulently induced

AMS to enter into a staff leasing agreement with ACT in December

2000, which was renewed in December 2001. It maintains that ACT

and Brandert never intended to purchase staff leasing services from

AMS and were instead merely looking for a source of workers’

compensation coverage for the truckers. AMS alleges that, to

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 7 of 20 PageID 3912
5

As do the parties, the court will refer to the two staff

leasing agreements of 2000 and 2001 collectively as the

“Agreements.”

6

The Agreements actually provide that AMS “agrees to provide

[ACT] payroll and related functions to [the truckers].” P. App.

69. The related functions include, inter alia, “consulting

assistance regarding preparing withholding and payment of all

required federal income and related taxes” and “consulting

assistance in preparing and filing of all required State and

Federal Unemployment Insurance Reports.” Id. With respect to IRS

and Immigration and Naturalization Service forms, however, “it is

expressly agreed and understood that [ACT] will obtain, prepare and

file the required documents.” Id. 

- 8 -

obtain the benefit from AMS of workers’ compensation coverage for

the co-employees, ACT was required under the terms of the

Agreements5

 to prepare the truckers’ federal tax forms, to prepare,

withhold, and pay their federal income tax, to prepare Internal

Revenue Service (“IRS”) employer tax withholding forms, and to

prepare their state and federal unemployment insurance reports.6

Instead, according to AMS, ACT and Brandert never intended to

fulfill this obligation.

To establish a claim for fraudulent inducement under Texas

law, AMS must generally show that the Agreements were “‘procured by

fraud’” and must demonstrate each element of fraud, as discussed

supra at § II(B). See United States ex rel. Coppock v. Northrup

Grumman Corp., 2003 WL 21730668, at *15 (N.D. Tex. July 22, 2003)

(Fitzwater, J.) (quoting United States ex rel. Willard v. Humana

Health Plan of Tex. Inc., 336 F.3d 375, 384 (5th Cir. 2003)). A

claim of fraudulent inducement requires proof of a false

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 8 of 20 PageID 3913
- 9 -

representation. See Prokopeas v. Rapp Collins World Wide, Inc.,

2004 WL 2296827, at *3 (N.D. Tex. Oct. 13, 2004) (Fitzwater, J.).

A promise of future performance is “actionable fraud if

representations are made with the ‘intent to deceive and with no

intention of performing as represented.’” Coffel v. Stryker Corp.,

284 F.3d 625, 633-34 (5th Cir. 2002) (quoting Formosa Plastics

Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48

(Tex. 1998)).

AMS has failed to introduce evidence that would permit a

reasonable trier of fact to find in its favor on the first element

of its fraudulent inducement claim, i.e., that ACT or Brandert made

a false, material representation to AMS. AMS cites the proposition

that “[a] promise to perform in the future is fraudulent if the

promise is made with the intent to deceive and with no intention of

performing as promised.” P. Br. 17 (citing cases). Although this

is a correct statement of the law, AMS does not identify any

promises that ACT or Brandert made before entering into the

Agreements. In fact, AMS does not point the court to any

statements that ACT or Brandert made before the Agreements were

signed. Cf. Coffel, 284 F.3d at 632-33 (affirming jury finding of,

inter alia, fraudulent inducement where employer made three

affirmative representations regarding potential compensation before

parties entered into agreement); Formosa Plastics, 960 S.W.2d at

48-49 (concluding contractor had legally viable fraudulent

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 9 of 20 PageID 3914
- 10 -

inducement claim where project owner stated, inter alia, in bid

package that contractors would have ability to schedule delivery of

concrete to induce contractors to submit low bid and enter into

construction agreement). 

Moreover, AMS does not contend that ACT or Brandert committed

fraud by concealing a material fact. It does not refer in its

brief to fraud by concealment (silence, omission, or

nondisclosure), cite cases that concern fraud by concealment, or

contend that ACT or Brandert had a duty of disclosure. See Jones

Partners Const., LLC v. Apopka Plaza Assocs., 2006 WL 784892, at *4

(N.D. Tex. Mar. 27, 2006) (Fitzwater, J.) (holding that “failure to

disclose a material fact is fraudulent only if the defendant has a

duty to disclose”) (citing Cadle Co. v. Wilson, 136 S.W.3d 345, 354

(Tex. App. 2004, no pet.)). AMS cites no facts in support of a

duty of disclosure, e.g., facts relevant to a fiduciary or

confidential relationship or to partial or voluntary disclosures

made by ACT or Brandert. Id. (observing that “question whether a

duty to disclose even exists in Texas absent a confidential or

fiduciary relationship is debatable”) (citing United Teacher

Assocs. Ins. Co. v. Union Labor Life Ins. Co., 414 F.3d 558, 566

(5th Cir. 2005)). Thus AMS has not designated specific facts that

show there is a genuine issue for trial on a theory of fraudulent

concealment. 

AMS alleges only that ACT and Brandert entered into the

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 10 of 20 PageID 3915
- 11 -

Agreements never intending to perform certain aspects of them, and

it points to deposition testimony by Brandert to that effect.

Intent, however, is only one aspect of ACT’s fraudulent inducement

claim and is alone insufficient to withstand summary judgment. 

Essentially, AMS’s fraudulent inducement cause of action can

be reduced to a claim that ACT entered into the Agreements with no

intent to perform them. If this were sufficient of itself to prove

fraudulent inducement, breach of contract claims could routinely be

transformed under Texas law into tort claims. One party could

often be able at least to point to circumstantial evidence that the

opposing party did not intend to perform the contract as promised.

Texas law avoids this possibility by requiring the claimant to

demonstrate intent to deceive through proof of a misrepresentation

or omission of a fact that the party had a duty to disclose. See

Formosa Plastics, 960 S.W.2d at 48 (requiring intent to deceive).

The claimant cannot, as AMS has effectively done here, merely

assert that the opposing party entered into the contract with the

intent not to perform it.

Accordingly, the court concludes that AMS has failed to

designate specific facts in support of a material misrepresentation

or promise. The court grants defendants’ motion for summary

judgment on AMS’s fraudulent inducement claim.

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 11 of 20 PageID 3916
7In its response brief, AMS acknowledges that its negligent

misrepresentation claim is precluded against ACT. See P. Br. 2

n.3. The court therefore dismisses with prejudice AMS’s negligent

misrepresentation claim against ACT. 

- 12 -

D

Defendants move for summary judgment as to AMS’s claim for

negligent misrepresentation. AMS does not seek to hold ACT liable

on this claim.7 It contends that Brandert made two actionable

negligent misrepresentations, both of which are predicated on

theories of the evidence that the court has already discussed.

First, Brandert made “negligent misrepresentations to the truckers”

by issuing the false COIs, expecting they would be repeated to AMS.

P. Br. 20. Second, he “negligently misrepresented ACT would enter

into [the Agreements] with AMS when ACT only wanted to sell

workers’ compensation insurance.” Id. at 20. AMS proffers “the

same evidence that supports” its fraud and fraudulent inducement

claim in support of its negligent misrepresentation claim. Id. at

22. 

To establish a cause of action for negligent

misrepresentation, AMS must demonstrate that 

(1) the representation is made by a defendant

in the course of his business, or in a

transaction in which he has a pecuniary

interest; (2) the defendant supplies “false

information” for the guidance of others in

their business; (3) the defendant did not

exercise reasonable care or competence in

obtaining or communicating the information;

and (4) the plaintiff suffers pecuniary loss

by justifiably relying on the representation.

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 12 of 20 PageID 3917
- 13 -

C.E. Barker, Inc. v. Firstcapital Bank, 2005 WL 1177910, at *4

(Tex. App. May 19, 2005, pet. denied) (unpublished opinion) (citing

Fed. Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.

1991)). “[T]he sort of ‘false information’ contemplated in a

negligent-misrepresentation case is a statement of existing fact,

not a promise of future conduct.” New York Life Ins. Co. v.

Miller, 114 S.W.3d 114, 124 (Tex. App. 2003, no pet.).

1

AMS first contends that Brandert committed negligent

misrepresentation by issuing false COIs that listed ACT as the

named insured and expecting that truckers “would repeat the

misrepresentations on [them] to AMS.” P. Br. 20. As the court

concludes supra at § II(B), however, AMS has failed to identify

specific facts from which a reasonable trier of fact could find

that AMS relied on the false COIs and/or the false information

contained therein. Accordingly, the court grants summary judgment

in favor of Brandert as to this claim. See Admiral Ins., 2004 WL

1144062, at *7-*8 (holding that plaintiff failed to state claim for

negligent misrepresentation where, as with its fraud claim, it

failed to provide factual allegations showing justifiable

reliance). 

2

AMS contends that Brandert misrepresented an existing fact

when he signed the Agreements, “even though he never intended to

 

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- 14 -

perform any of the contractual requirements.” P. Br. 22.

Notwithstanding that Brandert himself was not a party to the

agreements, AMS seeks to bring a negligent misrepresentation claim

against Brandert premised on ACT’s breach of contract. Negligent

misrepresentation is “a cause of action recognized in lieu of a

breach of contract claim, not usually available where a contract

was actually in force between the parties.” Airborne Freight Corp.

v. C.R. Lee Enters., Inc., 847 S.W.2d 289, 295 (Tex. App. 1992,

writ denied). 

AMS relies on Schauer v. Cargill, Inc., 2003 WL 21372163, at

*7 (W.D. Tex. June 12, 2003), for the proposition that negligent

misrepresentation claims are proper if the evidence shows that the

defendant never intended to perform a contract. In Schauer the

magistrate judge recommended remanding the case, finding a

“possibility of recovery” against individual defendants who made

alleged misrepresentations about their intent “to have long lasting

business relationships.” Id. Although this court is somewhat

skeptical that such comments can amount to representations of

existing facts, AMS points to no similar affirmative

representations that Brandert made, e.g., about the length of the

AMS-ACT relationship. Indeed, AMS does not assert that Brandert

made any statements, representations, or acknowledgments prior to

entering the Agreements. See Guardian Underwriters Reassurance

Ltd. v. Thompson, 2004 U.S. Dist. LEXIS 862, at *11 (N.D. Tex. Jan.

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 14 of 20 PageID 3919
- 15 -

26, 2004) (Sanders, J.) (“For a negligent misrepresentation cause

of action to lie in Texas, the defendant must make affirmative

misrepresentations.”) (citing Sergeant Oil & Gas Co., Inc. v. Nat’l

Maint. & Repair, Inc., 861 F. Supp. 1351, 1360 (S.D. Tex. 1994)).

Rather, AMS maintains that, by signing the Agreements, Brandert

represented an existing fact——that he was entering into the staff

leasing arrangement with AMS. But Brandert’s signing of the

Agreements can only be characterized as a promise to perform in the

future under their terms, which is not an actionable negligent

misrepresentation. See New York Life Ins., 114 S.W.3d at 124

(holding that promises of future conduct cannot constitute

negligent misrepresentations). 

Accordingly, the court concludes that AMS has failed to

designate specific facts that show there is a genuine issue of

material fact that Brandert made negligent misrepresentations, and

it grants defendants’ summary judgment motion with respect to AMS’s

negligent misrepresentation claim.

E

In sum, as a result of the court’s rulings in AMS I and today,

all of AMS’s claims against Brandert are dismissed with prejudice,

and all of AMS’s tort claims against ACT are dismissed.

Additionally, two grounds of Brandert’s fraud counterclaim remain,

but all other components of the fraud counterclaim, ACT’s fraud

counterclaim, and ACT and Brandert’s breach of contract

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 15 of 20 PageID 3920
- 16 -

counterclaim, are dismissed with prejudice.

III

AMS seeks leave to file a second summary judgment motion. See

N.D. Tex. Civ. R. 56.2(b) (“Unless otherwise directed by the

presiding judge, or permitted by law, a party may file no more than

one motion for summary judgment.”). Because the court in AMS I

granted summary judgment in AMS’s favor on its breach of contract

claim and has today granted summary judgment in defendants’ favor

as to AMS’s remaining claims, the court denies as moot AMS’s motion

for leave to file a second summary judgment motion on its claim for

fraud and Brandert’s affirmative defenses.

As noted, apart from AMS’s breach of contract claim, the only

remaining claim consists of two components of Brandert’s fraud

counterclaim. In these circumstances, the court concludes that it

is more efficient, potentially less costly to the parties, and

possibly less burdensome to the court and to jurors to determine

whether the remainder of Brandert’s fraud counterclaim can be

resolved by summary judgment before trying it. Accordingly, the

court grants AMS’s motion for leave to file a second motion for

summary judgment to the extent that, within 30 days of the date

this memorandum opinion and order is filed, it may file a motion

for summary judgment addressed to the two remaining grounds of

Brandert’s fraud counterclaim.

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 16 of 20 PageID 3921
- 17 -

IV

AMS filed on April 20, 2006 a motion for leave to file a

second amended complaint, in which it seeks to add an alternative

claim for negligence. It filed this motion almost two years after

it commenced this case in state court, over three months after ACT

and Brandert had filed a motion for partial summary judgment (and

after briefing on that motion was completed), and on the eve of

this court’s decision dismissing all of AMS’s claims against

Brandert and all tort claims against ACT. This court can deny a

motion for leave to amend that is dilatory and that is filed after

a summary judgment motion has been filed. It therefore denies

AMS’s motion. 

First, the court finds that AMS has been dilatory in seeking

leave to amend. AMS asserts, inter alia, that leave should be

granted in order to “trap insurance proceeds” available to

Brandert. P. Br. 8. It alleges that it did not obtain a copy of

Brandert’s errors and omissions policy issued by Utica Mutual

Insurance Company (“Utica”) until it was mailed on September 1,

2005. Id. at 1-2 n.2. AMS represents that this policy contains a

fraud exclusion. Id. at 4. Whether Brandert’s actions fall within

the coverage afforded him under the Utica policy is immaterial,

however, to this court’s determination of whether to grant leave to

amend. Moreover, AMS has represented that the coverage question is

the subject of a separate lawsuit in another jurisdiction. See

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 17 of 20 PageID 3922
- 18 -

Utica Mutual Ins. Co. v. Associated Contract Truckmen, Inc., No.

5:05cv1087 (W.D. Okla.). AMS’s new negligence theory is premised

on the same facts that underlie the tort and contract claims it

asserts in its first amended complaint. See P. Br. 6-7. And it

was aware of these facts at least over 18 months ago.

Second, even if the motion were not dilatory, the court

declines to allow AMS to amend after defendants have moved for

partial summary judgment and on the eve of this court’s decision on

the motion. As the court explained in AMS I, in which the court

denied without prejudice defendants’ motion to amend:

This court will carefully scrutinize a party’s

attempt to raise new theories of recovery by

amendment when the opposing party has filed a

motion for summary judgment. In determining

whether to grant leave to amend, the court may

consider such factors as undue delay . . . .

The court concludes that it would unduly

prejudice AMS if the court were to allow

defendants to amend nearly four months after

AMS filed its summary judgment motion. To

grant . . . leave to amend is potentially to

undermine a party’s right to prevail on a

motion that necessarily was prepared without

reference to an unanticipated amended

complaint. . . . A party should not, without

adequate grounds, be permitted to avoid

summary judgment by the expedient of amending

its complaint.

AMS I, 2005 WL 3148284, at *11 (citations, internal brackets, and

internal quotation marks omitted) (some ellipsis in original). The

court in its discretion concludes that AMS’s motion should be

denied on the grounds that it is dilatory and was filed after

defendants had filed a motion for partial summary and on the eve of

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 18 of 20 PageID 3923
8By “remedial portion” the court means any request for relief

other than attorney’s fees, which are usually decided by the court

on written submissions filed after judgment, under Fed. R. Civ. P.

54(d).

- 19 -

this court’s ruling dismissing all claims against Brandert and all

tort claims against ACT. Moreover, basic considerations of

fairness and equal treatment require that the court apply to AMS’s

motion for leave under the same standards and reasoning that it

applied in denying defendants’ motion.

V

Regardless whether the court later dismisses by summary

judgment the remaining two components of Brandert’s fraud

counterclaim, it must decide whether the remedial portion of AMS’s

breach of contract claim8 remains to be tried and, if so, what is

the estimated length of trial. Accordingly, within 20 days of the

date this memorandum opinion and order is filed, the parties must

submit a joint status report that states their joint position (or

respective positions) concerning what remains to be tried of AMS’s

breach of contract claim against ACT and how long they estimate the

trial, if necessary, of the claim will take.

* * *

For the reasons set out, the court grants the January 3, 2006

motion for partial summary judgment of defendants ACT and Brandert,

grants in part and denies in part as moot AMS’s January 5, 2006

motion for leave to file a second motion for summary judgment, and

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 19 of 20 PageID 3924
- 20 -

denies AMS’s April 20, 2006 motion for leave to file a second

amended complaint. The December 30, 2005 motion of ACT and

Brandert to strike or exclude the expert testimony of Wood is

denied without prejudice.

SO ORDERED.

April 26, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

 Case 3:04-cv-01344-D Document 225 Filed 04/26/06 Page 20 of 20 PageID 3925