Bobo v. AGCO Corporation et al

Filing 75

MEMORANDUM OPINION AND ORDER that the Tennessee Valley Authority's motion to dismiss plaintiff's punitive damages claim and strike her jury demand is GRANTED, and plaintiff's motion for leave to amend her complaint is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/15/2013. (AHI) Modified on 4/15/2013 (AHI).

FILED
2013 Apr-15 PM 12:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BARBARA BOBO,
Plaintiff,
vs.
AGCO CORPORATION, et al.,
Defendants.

)
)
)
)
) Civil Action No. CV-12-S-1930-NE
)
)
)
)

MEMORANDUM OPINION AND ORDER
Plaintiff, Barbara Bobo, allegedly suffers from malignant mesothelioma
resulting her exposure to asbestos as a consequence of the actions of defendants.1
Plaintiff originally asserted claims against nine defendants:

i.e., (i) Agco

Corporation, formerly known as Allis Calmers Company, sued as successor to
Massey Ferguson Limited (“Agco”); (ii) CBS Corporation, formerly known as
Viacom, Inc., sued as successor-by-merger to CBS Corporation, formerly known as
Westinghouse Electric Corporation (“CBS”); (iii) Conopco, Inc., doing business as
Unilever United States, Inc., sued individually and as successor-by-merger to Helene
Curtis Industries, Inc. (“Conopco”); (iv) Consolidated Aluminum Corporation, also
known as Conlaco, Inc. (“Consolidated Aluminum”); (v) Dana Companies LLC, sued
individually and as successor-in-interest to Victor Gasket Manufacturing Company
1

Doc. no. 1 (Complaint) ¶ 17.

(“Dana”); (vi) Ford Motor Company (“Ford”); (vii) Metropolitan Life Insurance
Company (“MetLife”); (viii) the Tennessee Valley Authority; and (ix) Unilever
United States, Inc., sued individually and as successor-by-merger to Helene Curtis
Industries, Inc. (“Unilever”).2 In accordance with the parties’ joint stipulations of
dismissal, this court has dismissed the claims against seven defendants: i.e., Ford;
Agco; Conopco; Unilever; Consolidated Aluminum; CBS; and Dana.3 Thus, only
plaintiff’s claims against MetLife and the Tennessee Valley Authority remain
pending. This action is before the court upon the Authority’s motion to dismiss
plaintiff’s punitive damages claim and strike her jury demand, and upon plaintiff’s
motion for leave to amend her complaint.4 Upon consideration, the Authority’s
motion will be granted, and plaintiff’s motion will be denied.
MOTION TO DISMISS PLAINTIFF’S PUNITIVE DAMAGES CLAIM
AND STRIKE HER JURY DEMAND
The Tennessee Valley Authority moves to dismiss plaintiff’s punitive damages

2

Id. ¶ 3-11.

3

See doc. no. 18 (Stipulation of Dismissal against Ford); doc. no. 19 (Order of Dismissal
against Ford); doc. no. 44 (Stipulation of Dismissal against Agco); doc. no. 45 (Order of Dismissal
against Agco); doc. no. 47 (Stipulation of Dismissal against Conopco and Unilever); doc. no. 48
(Order of Dismissal against Conopco and Unilever); doc. no. 53 (Stipulation of Dismissal against
Consolidated Aluminum); doc. no. 56 (Order of Dismissal against Consolidated Aluminum); doc.
no. 60 (Stipulation of Dismissal against CBS); doc. no. 61 (Order of Dismissal against CBS); doc.
no.62 (Stipulation of Dismissal against Dana); doc. no. 64 (Order of Dismissal against Dana).
4

See doc. no. 65 (Motion to Dismiss Plaintiff’s Punitive Damages Claim and Strike her Jury
Demand); doc. no. 71 (Motion for Leave to Amend).
2

claim because “[the Authority] is immune to claims for punitive damages.” North
Alabama Electric Cooperative v. TVA, No. 5:10-CV-03252-CLS, Mem. Op. at 7
(N.D. Ala. Sept. 28, 2011) (alteration supplied) (citing Sierra Club v. TVA, 430 F.3d
1337, 1357 (11th Cir. 2005); Heathcott v. Potts, 905 F.2d 367, 372 (11th Cir. 1990)).5
Further, the Authority moves to strike plaintiff’s jury demand because “a plaintiff
does not have the right to a jury trial in a suit against [the Authority].” North
Alabama Electric Cooperative v. TVA, No. 5:10-CV-03252-CLS, Mem. Op. at 7-8
(alteration supplied) (citing Mays v. TVA, 699 F. Supp. 2d 991, 1033 (E.D. Tenn.
2010); United Nuclear Corp. v. TVA, No. 86 AR-5308-NW, Mem. Op. at 2-6 (N.D.
Ala. July 31, 1987)).6

Plaintiff “does not oppose” the Authority’s motion.7

Accordingly, this court will grant the motion.
MOTION FOR LEAVE TO AMEND
Plaintiff moves for leave to amend her complaint to allege that plaintiff’s
husband worked “as a laborer at Brown’s Ferry Nuclear Plant in Athens, Alabama
from 1975-1997,” not from 1975-1985.8 Plaintiff filed her motion nearly five months

5

Doc. no. 66 (Brief in Support of Motion to Dismiss Plaintiff’s Punitive Damages Claim and
Strike her Jury Demand), at 2.
6

Id. at 3.

7

Doc. no. 73 (Response to Motion to Dismiss Plaintiff’s Punitive Damages Claim and Strike
her Jury Demand), at 1.
8

Doc. no. 71 (Motion for Leave to Amend), at 1.
3

after the entry of this court’s November 6, 2012 scheduling order stating that “[n]o
causes of action, defenses, or parties may be added,” and within several hours of the
filing of the Authority’s motion for summary judgment on discretionary function
grounds.9
Plaintiff relies on Federal Rule of Civil Procedure 15, which provides that the
“court should freely give leave [to amend] when justice so requires.” Fed. R. Civ.
Proc. 15(a)(2) (alteration supplied). However, “when a motion to amend is filed after
a scheduling order deadline, Rule 16 is the proper guide for determining whether a
party’s delay may be excused.” Sosa v. Airprint Systems, 133 F.3d 1417 (11th Cir.
1998) (emphasis supplied). Under Rule 16, a “schedule may be modified only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
This good cause standard precludes modification unless the schedule
cannot “be met despite the diligence of the party seeking the extension.”
Fed. R. Civ. P. 16 advisory committee’s note; see also Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.1992) (“If [a]
party was not diligent, the [good cause] inquiry should end.”).
Sosa, 133 F.3d at 1418 (alterations in original) (footnote omitted).
In her motion, plaintiff makes no mention of the existence of the November 6,
2012 scheduling order, or offer any cause, let alone good cause, for the tardiness of

9

See doc. no. 46 (Scheduling Order), at 1 (alteration supplied); doc. no. 69 (Motion for
Summary Judgment).
4

her attempt to add claims against the Authority for twelve additional years of alleged
asbestos exposure.10

The Authority correctly argues that, “[w]hile Plaintiff’s

proposed new claims involve the same core theory — that [the Authority] unlawfully
exposed her husband to asbestos which in turn led to her exposure — . . . each new
alleged exposure constitutes a new claim requiring discovery.”11 See, e.g., Dixon v.
City of Selma, No. 2:10-0478-KD-N, 2011 U.S. Dist. LEXIS 26560, *5 (S.D. Ala.
Mar. 11, 2011) (denying leave to amend a complaint to add “new claims and factual
allegations” after entry of a scheduling order) (emphasis supplied).
In Dimensional Communications, Inc. v. Oz Optics, Ltd., 148 F. App’x 82 (3d
Cir. 2005), the Third Circuit affirmed a holding that a party “could not satisfy Rule
16(b)’s good cause requirement because [it] was in possession of the facts underlying
its proposed [claim] well before the amendment deadline.” Id. at 85 (alterations
supplied). Here, plaintiff claims that the Authority’s liability arises from her
exposure to asbestos through contact with her husband’s clothing during the period
that he worked as a laborer at the Authority’s Browns Ferry Nuclear Plant.12 It strains
the bounds of reason to assume that plaintiff was not aware at the filing of this action
that her husband had worked at the nuclear plant for the twenty-two-year period
10

See doc. no. 71 (Motion for Leave to Amend).

11

Doc. no. 74 (Response to Motion for Leave to Amend), at 8 n.4 (alterations supplied).

12

Doc. no. 1 (Complaint) ¶12(a); doc. no. 41 (Rule 26(f) Report) ¶ 1(a).
5

between 1975 and 1997 alleged in her amended complaint, as distinguished from the
ten-year period between 1975 and 1985 alleged in her original complaint.
Accordingly, this court finds that plaintiffs’ failure to timely add claims for
twelve additional years of alleged asbestos exposure was the result of a lack of
diligence in pursuing her claims, and that plaintiff has not borne her burden of
showing good cause for allowing a belated amendment to her complaint after the
entry of a scheduling order and the filing of defendant’s motion for summary
judgment. See Anderson v. Board of School Commissioners, 78 F. Supp. 2d 1266,
1269 (S.D. Ala. 1999).13 In doing so, this court need not address the Authority’s
13

The Anderson court denied the plaintiffs’ motion for leave to file an amended complaint
on similar facts, reasoning as follows:
Notwithstanding this good cause requirement under Rule 16(b), plaintiffs
neither cite Rule 16(b) in their motions nor offer any good cause for filing their
proposed amendments after the scheduling order deadline. Indeed, plaintiffs admit
that no facts have changed since their original complaints were filed. Thus, it is clear
that plaintiffs could have included the Title VII and § 1983 claims in their original
complaints, particularly since they had ample opportunity to research the law and file
their proposed amendments before the scheduling order deadline.
The court therefore finds that plaintiffs’ failure to amend their complaints
prior to the February 1, 1999 scheduling order deadline was the result of a lack of
diligence in pursuing their claims. As a result, plaintiffs have failed to demonstrate
that their failure to comply with the scheduling order deadline was supported by good
cause as required by Rule 16(b). See Sosa, 133 F.3d at 1418 (stating that good cause
standard articulated by Rule 16(b) precludes modification of a scheduling order
deadline unless it cannot “be met despite the diligence of the party seeking the
extension”). Accordingly, plaintiffs’ motions for leave to amend their complaints to
add claims under Title VII and 42 U.S.C. § 1983 are due to be denied.
Anderson, 78 F. Supp. 2d at 1269.
6

remaining arguments, including that permitting the proposed amendment to plaintiff’s
complaint would be futile, and that it would unfairly prejudice the Authority.14
CONCLUSION
For the reasons explained above, the Tennessee Valley Authority’s motion to
dismiss plaintiff’s punitive damages claim and strike her jury demand is GRANTED,
and plaintiff’s motion for leave to amend her complaint is DENIED.
DONE and ORDERED this 15th day of April, 2013.

______________________________
United States District Judge

14

Doc. no. 74 (Response to Motion for Leave to Amend), at 1.
7