govinfo:USCOURTS-njd-1_16-cv-00711-1

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UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
EDWARD SILIPENA, et al.,   : Hon. Joseph H. Rodriguez 
 
  Plaintiffs,    : Civil Action No. 16-711 
 
 v.      : MEMORANDUM OPINION 
                 & ORDER 
AMERICAN PULVERIZER CO., et al., : 
 
  Defendants.   : 
 
 This matter is before the Court on Plaintiffs’ motion for leave to file a 
Second Amended Complaint. Essentially, Plaintiffs allege that they 
purchased a machine from Defendants for the intended use of shredding 
and sorting automobile parts. Shortly after installation of the custom 
machine, it malfunctioned and a fire ensued, disabling the machine and 
resulting in loss of profitability, revenue, and other assets.  
Plaintiffs filed the original Complaint against Defendants American 
Pulverizer Company (“Pulverizer”), Cooper & Associates LLC (“Cooper”), 
Eriez Manufacturing Company (“Eriez”), Hustler Conveyor Company 
(“Hustler”), and Pinnacle Engineering, Inc. (“Pinnacle”) on February 9, 
2016. On March 27, 2017, after hearing oral argument, the Court granted 
Defendants’ motion to dismiss Plaintiffs’ claim of fraudulent concealment, 
which asserted that Defendants “intentionally, willfully, and maliciously” 
concealed material defects from Plaintiffs. Further, the Court denied 
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Plaintiffs discovery to ferret out the facts of this claim. The Court also 
dismissed any claim for punitive damages with prejudice and granted leave 
to file an Amended Complaint, which Plaintiffs did on April 13, 2017.  
Plaintiffs were represented by predecessor counsel from the initiation of 
this action through the filing of Plaintiffs’ Amended Complaint, and until 
July 19, 2017. On December 7, 2017, Plaintiffs’ new counsel sought leave to 
file a Second Amended Complaint “to both clarify the scope of their existing 
pleading, and to add claims against Defendants based upon information 
learned during discovery.” (Pl. Br., p. 1.) 
Count One (Products Liability) of the First Amended Complaint 
has been reorganized into Counts I, II, and III of the proposed 
Second Amended Complaint to clarify Plaintiffs’ intention to 
pursue strict product liability claims against the named 
Defendants for each of three similar causes of action, including 
manufacturing defect, design defect, and failure to warn. Count 
Two (Negligence) of the First Amended Complaint has been 
divided into two negligence counts in the Second Amended 
Complaint (Counts IV and V) to differentiate more clearly 
between the nature of the negligence claims alleged against 
each of the Defendants. Similarly, Count Three (Breach of 
Contract) in the First Amended Complaint has been 
reorganized into Counts VIII, IX, and X in the Second Amended 
Complaint to clarify that Plaintiffs intend to pursue claims for 
breach of express contracts, implied-in fact contracts, and 
implied-in-law contracts [as alternative claims], respectively. In 
each of these reorganized Counts, Plaintiffs have also amended 
their pleadings to reflect their current understanding of the 
relevant facts as developed during the course of discovery. 
 
(Id. p. 4-5.) 
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Federal Rule of Civil Procedure 15 provides that leave to amend shall 
be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). Thus, leave 
should generally be granted absent 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, or futility of amendment. Foman v. 
Davis, 371 U.S. 178, 182 (1962). The decision as to whether leave to amend 
a complaint should be granted “is a matter committed to the sound 
discretion of the district court.” Arab African Int’l Bank v. Epstein, 10 F.3d 
168, 174 (3d Cir. 1993).      
In determining whether a proposed amendment would be futile, the 
Court applies the same standard of legal sufficiency that applies to a motion 
to dismiss filed under Rule 12(b)(6). Travelers Indemnity Co. v. Dammann 
& Co., 594 F.3d 238, 243 (3d Cir. 2010). When deciding a 12(b)(6) motion 
to dismiss, “courts accept all factual allegations as true, construe the 
complaint in the light most favorable to the plaintiff, and determine 
whether, under any reasonable reading of the complaint, the plaintiff may 
be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d 
Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d 
Cir. 2008)); Fed. R. Civ. P. 12(b)(6).  
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  In discussing prejudice in the context of Rule 15, the Third Circuit 
stated that “the non-moving party must do more than merely claim 
prejudice; ‘it must show that it was unfairly disadvantaged or deprived of 
the opportunity to present facts or evidence . . . .’” Bechtel v. Robinson, 886 
F.2d 644, 652 (3d Cir. 1989). “Prejudice under Rule 15 means undue 
difficulty in prosecuting [or defending] a lawsuit as a result of a change of 
tactics or theories on the part of the party.” W S Int’l, LLC v. M. Simon 
Zook, Co., 566 F. App’x 192, 200 (3d Cir. 2014) (citing Lundy v. Adamar of 
New Jersey, Inc., 34 F.3d 1173, 1189 n.8 (3d Cir. 1994)).  
First, Plaintiffs have attempted to amend their products liability 
claims to pursue strict product liability claims against Defendants under 
“the Missouri product liability statutes, Mo. Ann. Stat. § 537.760, or the 
strict product liability laws of any other applicable jurisdiction.” This would 
prejudice the Defendants because it requires re-opening written discovery 
to defend the suit as a result of a change in theory presented by Missouri, or 
other, law, as well as under the umbrella of language that Defendants 
“knew or should have known” about product defects. 
In addition, Plaintiffs seek to add four new Counts in their Second 
Amended Complaint in general terms: Count VI (Gross Negligence), Count 
VII (Recklessness/Willful Misconduct), Count XIV (Violations of Consumer 
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Protection Statutes), and Count XV (Negligent Misrepresentation). 
However, the Court has ruled that Plaintiffs’ claim of fraudulent 
concealment, which asserted that Defendants “intentionally, willfully, and 
maliciously” concealed material defects from Plaintiffs was dismissed 
without an opportunity for “discovery to ferret out the facts of this claim.” 
The Court also dismissed any claim for punitive damages with prejudice, 
precluding any new claims that are punitive in nature. The new claims 
outlined here will not be allowed, as allowing them as amendments would 
be futile. 
Finally, and most troubling, Plaintiffs attempt to incorporate a second 
fire into their basis for liability against Defendants. The December 2012 fire 
at Plaintiffs’ facility has always been known to Plaintiffs; it cannot be 
characterized as new information obtained through the course of discovery. 
The vast majority of Plaintiffs’ proposed edits are comprised of 
unnecessary alterations to the language of the pleading asserting details 
known to Plaintiffs at the time they filed the original Complaint. Exercising 
its discretion, the Court will not allow leave to file a Second Amended 
Complaint. The Defendants will be prejudiced by the delay in seeking to 
include the new information in the present case, especially in light of the 
failure to do so in the previous amendment. Further, it would be futile to 
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allow Plaintiffs to attempt to resuscitate the allegations of fraudulent or 
willful conduct already ruled on by this Court.  
For these reasons, 
IT IS ORDERED this 7th day of March, 2019 that Plaintiffs’ motion 
for leave to file a Second Amended Complaint [80] is hereby DENIED. 
    
        /s/ Joseph H. Rodriguez 
       JOSEPH H. RODRIGEZ 
        U.S.D.J. 
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