Joinder motion denied and complaint amendment permitted in vehicle personal injury case

By Nicholas Malfitano | Jan 5, 2017

PHILADELPHIA – A federal judge says an Ashley man will not be permitted to join the alleged driver of the vehicle which injured him as a necessary party, but will be allowed to amend his complaint to add a charge of negligent entrustment.

U.S. District Court Judge Richard Barclay Surrick ruled Dec. 28 that plaintiff Julio Orengo’s joinder motion in his personal injury case against Berkel & Company Contractors, Inc. of Bonner Springs, Kan., would be denied, and his motion to amend his complaint to include negligent entrustment would be approved.

The case originates from a highway collision between the defendant’s vehicle and Orengo. On May 29, 2016 at 1:04 a.m., Orengo alleges he was walking on Pulaski Highway in Bear, Del., and while doing so, the defendant’s vehicle was operated negligently and collided with him, which caused him serious injuries.

Orengo’s motion for joinder seeks to join as a party the alleged driver of the defendant’s vehicle, Matthew Dale Bush, and his motion to amend seeks to amend the complaint to add a claim of negligent entrustment against Bush.

Federal Rule of Civil Procedure 19(a) outlines the standards by which a party could be joined to a lawsuit, and states: “A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (I) as a practical matter impair or impede the person’s ability to protect the interest; or (II) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.”

Surrick explained in determining whether an absent party must be joined under Rule 19(a), a court must determine if it is “a necessary party who should be joined in the action” and the moving party has the burden of proving why the opposing party is required to be joined under Rule 19(a).

“To determine whether the absent party is necessary, a court must first determine whether ‘complete relief’ can be granted to the existing parties, absent the joinder,” Surrick said.

Orengo argued Bush must be joined to this matter under Rule 19(a) as a necessary and indispensable party, while the defendant countered Bush is not a necessary party to this lawsuit, and argues that Orengo has not met his burden of proving that Bush is a necessary party.

“Plaintiff argues that Bush is a necessary party because he was an employee of defendant Berkel and was driving the vehicle involved in this accident. This is not sufficient to establish that plaintiff cannot be accorded complete relief. The Supreme Court [of Pennsylvania] has determined that ‘it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit,” Surrick said.

Surrick said an employee need not be joined in a suit against an employer under the respondeat superior theory of liability, and Bush is not an indispensable party simply because he was driving the defendant’s vehicle.

“Similarly, while Bush was driving the Berkel vehicle that collided with plaintiff, plaintiff can still be accorded complete relief against defendant Berkel. Accordingly, plaintiff has failed to prove that Bush is a necessary party under Rule 19(a),” Surrick stated.

As for the motion to amend the complaint, Surrick said Orengo alleges his investigation into the case revealed that the employee who was driving the defendant’s vehicle had a history of reckless driving, which led Orengo to seek to amend his complaint to add a claim of negligent entrustment against the defendant.

“We see no reason why plaintiff should be prevented from amending his complaint to include a claim of negligent entrustment. Accordingly, plaintiff is granted leave to amend his complaint for the purpose of adding a negligent entrustment claim,” Surrick said.

The plaintiff is represented by Marc I. Simon, Alexander C. Hyder and Joshua David Baer of Simon & Simon, in Philadelphia.

The defendant is represented by Elizabeth F. Walker of Campbell Lipski & Dochney, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-04635

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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