United States District Court, D. New Hampshire
DiClerico, Jr. United States District Judge
and Barbara Pukt brought suit against Nexgrill Industries,
Inc., alleging claims that arose from damage to their
property after a grill manufactured by Nexgrill caught fire.
The Pukts move for leave to amend their complaint to add
allegations to support an award of punitive and enhanced
compensatory damages. Nexgrill objects.
response to a motion for leave to amend a complaint,
“[t]he court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). To decide if
justice requires leave to amend, the court considers all of
the circumstances to “balance pertinent
considerations.” Palmer v. Champion Mortg.,
465 F.3d 24, 30-31 (1st Cir. 2006). Generally, the motion
should be allowed in the absence of “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, futility of amendment, ” or
another appropriate circumstance. Foman v. Davis,
371 U.S. 178, 182 (1962).
Undue Delay and Prejudice
objection to the motion for leave to amend, Nexgrill asserts
that the motion is too late and that the proposed amendment
of the complaint will prejudice Nexgrill. At the final
pretrial conference, however, Nexgrill’s counsel
conceded that it has all of the relevant information for its
defense. The only prejudice would be the extra time necessary
to prepare the defense for trial.
of other circumstances raised during the final pretrial
conference, the trial scheduled to begin on June 7, 2016, has
been continued until a date next fall, which remains to be
determined. Therefore, any prejudice that might have resulted
from the proximity of trial is no longer an issue.
Pukts waited until less than a month before the date the
trial was scheduled to begin to seek leave to amend, despite
knowing the underlying facts for six months to a year.
Counsel’s only explanation for the delay was an
expectation that the case would settle. Nexgrill, too, has
known the underlying facts for months. Despite the delay, the
lack of prejudice to Nexgrill weighs in favor of allowing the
contends that the new damages allegations are futile because
State Farm Mutual Insurance Company is the real party in
interest and a subrogee cannot recover more than it actually
paid. Nexgrill also contends that there are no facts in the
case to support enhanced damages.
amendment is futile if it cannot survive the standard
applicable to motions to dismiss under Federal Rule of
Civil Procedure 12(b)(6). Platten v. HG Bermuda
Exempted Ltd., 437 F.3d 118, 132 (1st Cir. 2006). In
considering a motion under Rule 12(b)(6), the court assumes
the truth of the properly pleaded facts and takes all
reasonable inferences from the facts that support the
plaintiff’s claims. Mulero-Carrillo v.
Roman-Hernandez, 790 F.3d 99, 104 (1st Cir. 2015). Based
on the properly pleaded facts, the court determines whether
the plaintiff has stated “a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Pukts’ claims are brought under New Hampshire law. New
Hampshire prohibits punitive damages, unless specifically
allowed by statute. RSA 507:16. The Pukts cite no statute
that allows punitive damages for product liability claims.
Therefore, the request for punitive damages is futile and is
Hampshire recognizes enhanced compensatory damages when the
defendant’s actions are “wanton, malicious, or
oppressive.” Stewart v. Bader, 154 N.H. 75, 87
(2006). “‘Wanton conduct means that the actor is
aware that his actions are causing a great risk of harm to
others.” Collins v. Dartmouth-Hitchcock Med.
Ctr., 2014 WL 1364957, at *2 (D.N.H. Apr. 7, 2014)
(quoting Johnson v. The Capital Offset Co., Inc.,
2012 WL 781000, at *1 (D.N.H. Mar. 6, 2012)). The allegations
in the complaint, taken in the proper light, support at least
wanton conduct by Nexgrill.
is no dispute that this is a subrogation case and that State
Farm is the subrogee of the Pukts as to their claims against
Nexgrill arising out of the fire and ensuing damage to their
home. Nexgrill argues that State Farm cannot recover enhanced
damages because it is entitled to only the amount it paid the
Pukts. In support, Nexgrill cites authority that as a general
rule a subrogee can be ...