Hernandez v. Loose et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ARIELA HERNANDEZ,
Plaintiff,
v.
BENJAMIN LOOSE; KURT LOOSE;
BENJAMIN JENKINS; NARVON
CUTTING SERVICE LLC;
CHRISTOPHER WILSON; TOTAL
TRANSPORTATION OF MISSISSIPPI
LLC,
Defendants.
CIVIL ACTION
NO. 25-5869
MEMORANDUM RE: PLAINTIFF’S MOTION FOR LEAVE TO FILE A SECOND
AMENDED COMPLAINT
Baylson, J. 	October 1, 2026
I. 	INTRODUCTION
Ariela Hernandez (“Plaintiff”) commenced this action asserting negligence claims arising
out of a motor vehicle accident. Currently before the Court is Plaintiff’s Motion for Leave to File
a Second Amended Complaint. For the reasons that follow, Plaintiff’s Motion will be granted.
II. 	FACTUAL AND PROCEDURAL BACKGROUND
This action stems from a serious car accident in which Plaintiff was injured as a
passenger in 2024. See ECF 1-2 at 8. Plaintiff’s initial Complaint—filed in the Chester County
Court of Common Pleas before its removal to this Court—named as defendants Defendant
Benjamin Loose, the driver of the vehicle in which Plaintiff rode as a passenger, and Defendant
Kurt Loose, the owner of that vehicle; Defendant Benjamin Jenkins, the driver of the first
commercial truck that struck Defendant Loose’s vehicle, and Defendant Narvon Cutting Service
LLC, the owner of that first commercial truck; and Defendant Christopher Wilson, the driver of a
second commercial truck that struck Defendant Loose’s vehicle, and Defendant Total
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Transportation of Mississippi LLC, the owner of that second commercial truck. Id. at 6, 8.
Defendants Total Transportation and Wilson filed a notice of removal in this Court on October
13, 2025. ECF 1.
On December 1, 2025, Defendants Benjamin Loose and Kurt Loose filed a Motion to
Dismiss for Failure to State a Claim. ECF 13. The Court granted that Motion, with leave to
amend, on January 7, 2026. See ECF 21.
On January 20, 2026, Plaintiff filed a First Amended Complaint. ECF 24. Defendants
Benjamin Loose and Kurt Loose again filed a Motion to Dismiss on February 10, 2026. ECF 27.
However, the Court denied Defendants’ Motion, finding the First Amended Complaint sufficient
in terms of its factual allegations on March 17, 2026. See ECF 31.
In answering Plaintiff’s First Amended Complaint, all Defendants in this case have
asserted crossclaims. See ECF 25 at 24; ECF 26 at 8; ECF 32 at 12–13. On June 16, 2026, this
case was consolidated with a related action, Loose v. Jenkins, No. 26-2801. See ECF 46.
On August 19, 2026, Plaintiff filed the instant Motion for Leave to File a Second
Amended Complaint. ECF 54. No Defendant in the case has filed a response in opposition to this
Motion.
III. 	ANALYSIS
Plaintiff seeks leave to file a Second Amended Complaint based on several pieces of
evidence uncovered in discovery. See id. at 2. In light of these newly discovered facts, Plaintiff’s
Proposed Second Amended Complaint (ECF 54-1) would add four new claims: Direct
Negligence (Failure to Implement Safety Policies) against Defendant Total Transportation
(Count VIII); Negligent Training and Supervision against Defendant Total Transportation (Count
IX); Negligent Retention against Defendant Total Transportation (Count X); Punitive Damages
against Defendant Wilson and Defendant Total Transportation (Count XI). ECF 54-1 at 15–23.
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Federal Rule of Civil Procedure 15(a) provides that a party may amend its pleading once
as a matter of course; otherwise, a party may amend only with the opposing party’s written
consent or with leave of the court. Fed. R. Civ. P. 15(a). Courts “should freely give leave when
justice so requires.” Id. While granting leave to amend is within the district court’s discretion, the
Third Circuit describes Rule 15 as a “directive in favor of amendment.” Mullin v. Balicki, 875
F.3d 140, 150 (3d Cir. 2017). Courts should grant motions for leave to amend unless there is a
reason justifying denial. See Foman v. Davis, 371 U.S. 178, 182 (1962). As the Third Circuit has
explained: “absent undue or substantial prejudice, an amendment should be allowed under Rule
15(a) unless denial can be grounded in bad faith or dilatory motive, truly undue or unexplained
delay, repeated failure to cure deficiency by amendments previously allowed or futility of
amendment.” Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (citation modified).
The circumstances here support granting Plaintiff leave to amend. Plaintiff has not
repeatedly failed to cure deficiencies by amendments previously allowed. After filing a First
Amended Complaint, Plaintiff seeks leave to file this Second Amended Complaint on an entirely
distinct basis: because discovery has revealed new facts and given rise to new claims. There is
nothing to suggest Plaintiff’s bad faith or undue delay in seeking amendment on this basis. And,
importantly, permitting amendment would not prejudice Defendants. See Mullin, 875 F.3d at 150
(citation omitted) (identifying prejudice to the non-moving party as the “touchstone for the
denial of an amendment”).
As indicated by the Third Circuit, the Court also considers futility of amendment when
deciding whether to grant leave to amend. Amendment is deemed futile when the “the complaint,
as amended, would fail to state a claim upon which relief could be granted.” Burtch v. Milberg
Factors, Inc., 662 F.3d 212, 231 (3d Cir. 2011) (citing Great W. Mining & Min. Co. v. Fox
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Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010)). The standard for determining futility is the
“same standard of legal sufficiency as applies under Federal Rule of Procedure 12(b)(6).” Great
W. Mining, 615 F.3d at 175 (citation modified) (citing Shane v. Fauver, 213 F.3d 113, 115 (3d
Cir. 2000)). That is: the district court “determines futility by taking all pleaded allegations as true
and viewing them in a light most favorable to the plaintiff.” Id. (citing Winer Fam. Tr. v. Queen,
503 F.3d 319, 330–31 (3d Cir. 2007)).
According to this standard, the Court notes that Count X of Plaintiff’s Proposed Second
Amended Complaint—alleging negligent retention against Total Transportation—appears futile.
The Supreme Court of Pennsylvania has adopted the Restatement (Second) of Torts § 317 (1965)
to evaluate claims of negligent retention, supervision, and hiring by employers. Gunn v. On the
Border Acquisitions, LLC, 298 F. Supp. 3d 811, 825 n.12 (E.D. Pa. 2018) (Stengel, J.); Schofield
v. Trs. of Univ. of Pennsylvania, 894 F. Supp. 194, 196 (E.D. Pa. 1995) (Joyner, J.) (citing
Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 421 (Pa. 1968)). To recover on a claim of
negligent retention, a plaintiff “must demonstrate that her loss resulted from (1) a failure to
exercise ordinary care to prevent an intentional harm by an employee acting outside the scope of
his employment, (2) that is committed on the employer's premises, (3) when the employer knows
or has reason to know of the necessity and ability to control the employee.” Gunn, 298 F. Supp.
at 825 (citing Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 477–78 (3d Cir. 2013))
(providing requirements for a “negligent retention” claim); Belmont, 708 F.3d at 487–88 (citing
Dempsey, 246 A.2d at 420) (providing same elements for a “negligent supervision” claim). This
type of claim also requires the four elements of common law negligence: duty, breach, causation,
and damages. Belmont, 708 F.3d at 488 (citing Brezenski v. World Truck Transfer, Inc., 755 A.2d
36, 42 (Pa. Super. Ct. 2000)). The “main issue” in a negligent retention claim is “whether ‘the
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employer knew, or in the exercise of ordinary care, should have known of the necessity for
exercising control over his employee.’” Schofield, 894 F. Supp. at 196 (quoting Dempsey, 246
A.2d at 422); see also Henry v. Marcelin, No. CV 24-1891, 2024 WL 4293055, at *3 (E.D. Pa.
Sept. 25, 2024) (Arteaga, M.J.) (citations omitted) (explaining that, under Pennsylvania law, a
plaintiff asserting a negligent retention claim must “show that [the employee’s] prior bad acts
would have put a reasonable employer on notice of [the employee’s] propensity to injure
others”).
With all pleaded allegations taken as true and viewed in the light most favorable to
Plaintiff, Count X of Plaintiff’s Proposed Second Amended Complaint fails to state a claim upon
which relief could be granted for negligent retention by Defendant Total Transportation. Count X
alleges that Defendant Total Transportation breached its duty of care by retaining Defendant
Wilson as a driver and “fail[ing] to supervise, discipline, suspend, or terminate him” when Total
Transportation knew of his “dangerous, hostile, and reckless propensities.” ECF 54-1 ¶ 138. The
Count also identifies specific facts that allegedly provided Total Transportation with direct or
constructive knowledge of these propensities. Id. ¶¶ 135–36.
However, Count X does not allege, as required by Pennsylvania law, that “[Plaintiff’s]
loss resulted from” Defendant Total Transportation’s failure to control Defendant Wilson when it
knew of the need to do so. Nowhere in Count X does Plaintiff allege that Total Transportation
knew or had reason to know of Wilson’s “dangerous, hostile, and reckless propensities” prior to
the accident involving Plaintiff. Rather, Plaintiff alleges that Total Transportation acquired this
actual or constructive knowledge exclusively from evidence obtained “following the catastrophic
collision on May 14, 2024.” Id. ¶ 135 (emphasis added). Plaintiff points only to dashcam audio
of Defendant Wilson’s “post-impact statement” following the accident and social media posts
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made four to seven months after the accident as the sources of Total Transportation’s requisite
knowledge. Id. ¶¶ 135–36. Thus, even if Total Transportation’s alleged knowledge and
subsequent failure to act could amount to negligence, Plaintiff’s accident-related losses did not
“result from” such negligence. Plaintiff therefore fails to assert a negligent retention claim
pursuant to the requirements of the Restatement (Second) of Torts § 317 (1965). Plaintiff’s
negligent retention claim likewise fails to plead the causation element of common law
negligence.
Plaintiff tries to sidestep this causation issue by asserting that, “[a]s a direct and
proximate result of Defendant Total Transportation of Mississippi LLC’s negligent retention of
Defendant Wilson, the motoring public was continuously exposed to an extreme risk of
catastrophic harm, and Plaintiff’s ongoing damages were actively ratified.” Id. ¶ 141. The
ratification argument is misplaced. Ratification is a theory by which a principal (here, Defendant
Total Transportation) becomes subject to liability for the tortious acts of his agent (Defendant
Wilson). Restatement (Second) of Agency § 218 (1958). Plaintiff’s claim of negligent retention,
however, asserts a theory of direct liability against Total Transportation. Heller v. Patwil Homes,
Inc., 713 A.2d 105, 107 (Pa. Super. Ct. 1998) (identifying comparable claims of negligent
hiring/supervising as imposing “direct employer liability for its negligence,” distinguishable
from an employer’s vicarious liability for an employee’s torts). Count X alleges that Defendant
Total Transportation itself committed a tort: Total Transportation owed Plaintiff a duty of care
and breached that duty. Plaintiff’s references to ratification, a theory of vicarious liability, have
no place in this claim. Plaintiff cites no authority suggesting otherwise.
Despite this apparent futility, the Court nevertheless will not preclude Plaintiff’s
negligent retention claim against Defendant Total Transportation in granting leave to amend. The
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Court notes that none of the six named Defendants in this case have opposed Plaintiff’s Motion
for Leave to File a Second Amended Complaint. This lack of opposition bears acknowledgement
here; indeed, some courts within this Circuit have even determined that, “[g]iven Rule 15(a)’s
liberal standard, the burden rests with the party opposing amendment to show the existence of
these factors [justifying denial of leave to amend].” Mooney v. Ainsworth, Inc., No. 5:25-CV-
03598-JMG, 2026 WL 939213, at *2 (E.D. Pa. Apr. 7, 2026) (Gallagher, J.) (citing White v.
Bush, No. 20-CV-2059, 2021 WL 2255981, at *6 (E.D. Pa. June 3, 2021) (Marston, J.) and
Ogelsby v. Ferguson, No. 19-CV-5598, 2021 WL 2935987, at *3 (E.D. Pa. July 13, 2021)
(Sitarski, M.J.)). With Rule 15(a)’s liberality and the lack of opposition from Defendants in
mind, the Court will grant Plaintiff leave to file a Second Amended Complaint. Plaintiff may
include all counts listed in the Proposed Second Amended Complaint.
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Scheduling.docx
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