United States District Court, N.D. Oklahoma
DELLA SHAW, SHERLYNE TURNER, BERTHA JOHNSON and MARTHA RAND, Plaintiffs,
CHEROKEE MEADOWS, LP, CARLAND GROUP, LLC, RED BUD CONTRACTORS, LLC, CARLAND PROPERTIES, LLC, and BLACKLEDGE & ASSOCIATES, Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL CHIEF JUDGE
matter comes before the court on the Motion for Leave to
Amend Crossclaim [Doc. No. 48] of defendants Cherokee
Meadows, LP and Carland Group, LLC. For the reasons discussed
herein, the motion is granted in part and denied in part.
Background and Procedural History
case arises from alleged violations of the Fair Housing Act
(“FHA”), Americans with Disabilities Act
(“ADA”), Rehabilitation Act, and Uniform Federal
Accessibility Standards at the Cherokee Meadows Apartments.
Cherokee Meadows Apartments is a forty-eight (48) unit
multi-family, affordable housing project (the
“Project”) for persons aged sixty-two or older
developed in 2016 by Carland Group LLC. Plaintiffs are
tenants of Cherokee Meadows Apartments who allege that the
Project includes artificial barriers-including curbs,
unpowered garage doors, walking paths, toilets, and
showers-that exclude persons with disabilities and do not
comply with federal statutes. Plaintiffs further allege that
defendants refuse to grant reasonable modification requests.
Based on these general allegations, the Complaint asserts the
following claims against defendants: (1) failure to design
and construct the Project in a readily accessible and usable
manner in violation of the Fair Housing Act, 42 U.S.C. §
3604(f)(3)(C); (2) discrimination in violation of the Fair
Housing Act, 42 U.S.C. § 3604(f); (3) violation of
section 504 of the Rehabilitation Act, 29 U.S.C. § 794;
(4) violation of the Americans with Disabilities Act, 42
U.S.C. § 12132; and (5) breach of contract.
Carland Group LLC and Cherokee Meadows, LP (collectively,
“Carland Defendants”) previously filed a
Contingent Crossclaim for indemnity against defendant
Blackledge & Associates, which this court dismissed.
[Doc. No. 18, pp. 16-18; Doc. No. 47]. Carland Defendants now
seek leave to amend the Crossclaim to assert four claims: (1)
contribution; (2) breach of contract; (3) negligence; and (4)
indemnity (express or implied). [Doc. No. 48]. Blackledge did
not respond to the motion to amend.
Motion to Amend Standard
Rule of Civil Procedure 15(a) permits a party to amend its
pleading once as a matter of course within twenty-one (21)
days of service or, if the pleading is one to which a
responsive pleading is required, within 21 days of service of
the responsive pleading or motion. Fed.R.Civ.P.
15(a)(1). “In all other cases, a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). Although leave to amend should be freely given
“when justice so requires, ” Fed.R.Civ.P.
15(a)(2), “denial of a motion to amend may be
appropriate where there has been shown ‘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,
etc.'” Steadfast Ins. Co. v. Agric. Ins.
Co., No. 05-CV-126-GKF-TLW, 2014 WL 1901175, at *4 (N.D.
Okla. May 13, 2014) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)). “‘[T]he grant of leave to
amend the pleadings pursuant to Rule 15(a) is within the
discretion of the trial court.'” Minter v.
Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006)
(alteration in original) (quoting Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 330 (1971)).
prior Opinion and Order, this court joined with those courts
holding that the FHA and ADA pre-empt state-law
indemnification claims. The court adopted the Fourth
Circuit's reasoning that an entity's obligations
under the FHA and ADA are “nondelegable” and
therefore “[a]llowing an owner to completely insulate
itself from liability for an ADA or FHA violation through
contract diminishes its incentive to ensure compliance with
discrimination laws” and is “antithetical to the
purposes of the FHA and ADA.” See [Doc. No.
47, p. 7 (quoting Equal Rights Center v. Niles Bolton
Associates, 602 F.3d 597 (4th Cir. 2010)]. Because the
Carland Defendants' original Crossclaim sought to
completely offset its liability in this case, the Crossclaim
was pre-empted. [Id. p. 8].
Carland Defendants' motion to amend again requires the
court to consider the nature of the crossclaims asserted and
to conduct a pre-emption analysis. The proposed Amended
Crossclaim generally alleges:
Many of the design features which form the basis of
Plaintiffs' claims were specified, approved and/or
inspected by Blackledge. Carland Group and Cherokee expressly
deny Plaintiffs' claims. Notwithstanding their denial,
Blackledge would be liable to the Carland Defendants to the
extent of any damages assessed against the Carland Defendants
that are directly attributable to the actions/omissions of
Blackledge. Carland Group and Cherokee are entitled to
judgment over and against Blackledge in an amount equal to
any damages assessed against the Carland Defendants and based
on the design deficiencies alleged by the Plaintiffs.
[Doc. No. 48-1, ¶ 7]. The Carland Defendants seek leave
to amend to assert four separate crossclaims: (1)
contribution; (2) breach of contract; (3) negligence; and (4)
indemnity (express or implied). [Doc. No. 48].
with regard to the contribution claim, Oklahoma provides a
statutory right of contribution, but such right “exists
only in favor of a tort-feasor who has paid more than their
pro rata share of the common liability, and the total
recovery is limited to the amount paid by the tort-feasor in
excess of their pro rata share.” 12 Okla. Stat. §
832(B). The Carland Defendants seek “judgment against
Blackledge for that portion of damages imposed upon them, in
excess of their own pro rata share of liability, arising from
alleged design deficiencies, acts or omissions on the part of
Blackledge.” [Doc. No. 48-1, ¶ 22]. The
contribution crossclaim therefore seeks contribution within
the scope of Oklahoma law.
noted by this court in its prior order, the Ninth Circuit
disagreed with the Equal Rights Center case, adopted
by this court, to conclude that neither the ADA nor the
Rehabilitation Act pre-empted state law contribution
claims. See City of Los Angeles v. AECOM Servs.,
Inc.,854 F.3d 1149, 1161 (9th Cir. 2017). The Ninth
Circuit distinguished contribution crossclaims from preempted
indemnity crossclaims, reasoning that contribution
crossclaims “seek only to collect for violations
arising out of [crossclaim defendant's] own
negligence or wrongdoing” and allowing
“redress for liability incurred by virtue of a
third-party contractor's actions does not plausibly pose
an obstacle to the intended purpose and effect of Title II or
§ 504.” Id. at 1160-61 (emphasis in
original). Rather, the court concluded that permitting
contribution furthered the regulatory purpose of the statute,
as “the entity best situated to ensure full compliance
may well be the contractor tasked with designing or
constructing the public ...