Bookhamer et al v. Sunbeam Products, Inc.

Filing 162

ORDER by Judge Edward M. Chen Denying 129 Plaintiffs' Motion for Leave to File Fourth Amended Complaint. (emcsec, COURT STAFF) (Filed on 12/20/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY BOOKHAMER, et al.,

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Plaintiffs,
ORDER DENYING PLAINTIFFS’
MOTION FOR LEAVE TO FILE
FOURTH AMENDED COMPLAINT

v.

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For the Northern District of California

United States District Court

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No. C-09-6027 EMC (DMR)

SUNBEAM PRODUCTS, INC.,

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Defendant.
___________________________________/

(Docket No. 129)
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I.

INTRODUCTION

This products liability case is set for a jury trial to begin February 4, 2012. This Court heard

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Defendant’s two motions for summary judgment on November 30, 2012. In the first of the two

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motions, Defendant argued, inter alia, that it was entitled to summary judgment because Plaintiffs

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were unable to provide sufficient evidence that the allegedly defective mattress pad in this case was

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manufactured by Defendant rather than by Chatham Manufacturing. Shortly after Defendant filed

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its motions for summary judgment, Plaintiffs filed the instant motion for leave to file a fourth

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amended complaint, seeking to add Chatham as a defendant. Plaintiffs argue that it was not until

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Defendant filed its first motion for summary judgment and supporting exhibits that Plaintiffs had

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sufficient information to add Chatham as a defendant.

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II.

FACTUAL & PROCEDURAL BACKGROUND

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The parties do not dispute that a house fire broke out early the morning of January 11, 2009,

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killing Victoria DiSilvestro and severely burning her young son, Anthony Bookhamer. Subsequent

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investigations indicated that the fire was caused by an electric mattress pad that had been left on a

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sofa in the apartment, plugged in and with the control switch in the “ON” position. There is also no

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dispute that the mattress pad’s controller was manufactured by Defendant. Declaration of George E.

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McLaughlin in Support of Plaintiff’s Motion ¶ 3 (“McLaughlin Decl.”) (Docket No. 30). In its

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motion for summary judgment, however, Defendant noted that it sold the same style of controller to

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Chatham Manufacturing for incorporation into Chatham-made mattress pads during the relevant

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period of time. Docket No. 109. To prove this fact, Defendant offered the declaration of Sunbeam

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Senior Director Product Safety Engineer Richard Prins. Id. at 8-9. Plaintiffs now argue that they

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did not have sufficient notice of the possibility that Chatham was the manufacturer prior to October

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25, 2012, the day Defendant filed the motion for summary judgment. Pl.’s Mot. at 2. Defendants
argue that Plaintiffs had notice of this fact no later than May 2011, when Prins was deposed. Def.’s

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Opp. at 1.

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A.

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Previous Amended Complaints and Initial Disclosures
Plaintiff filed the initial complaint in this matter on December 23, 2009. Docket No. 1.

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Plaintiff filed an amended complaint on May 3, 2010. Docket No. 17. After a hearing on a motion

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to dismiss, Plaintiffs filed a second amended complaint on August 18, 2010. Docket Nos. 28-29.

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When the order on the motion later issued, it became clear that the second amended complaint

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complied with only parts of the order. Accordingly, the parties stipulated to allow Plaintiffs to file a

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third amended complaint. Docket No. 31. The third amended complaint was filed on September 24,

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2010. Docket No. 32. Defendant’s answer, filed October 22, 2010, does not mention Chatham,

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though Defendant does raise “Fault of Plaintiffs and Others” as a defense, and reserves the right to

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raise other defenses as they uncovered more information during the course of litigation. Docket No.

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35 ¶¶ 191, 198.

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Defendant’s initial disclosures, dated May 28, 2010, do not mention Chatham. McLaughlin

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Decl. Ex. 3. At no point did Defendant supplement these disclosures with information about

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Chatham or Chatham mattress pads. McLaughlin Decl. ¶ 9. Defendant argues that it was under no

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duty to disclose information about Chatham under Rule 26, as it did not anticipate calling any

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Chatham employees as witnesses or using Chatham documents to support its defenses. Def.’s Opp.

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at 3.

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Shortly before the first deposition of Richard Prins, Defendant produced approximately

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5,000 pages of documents to Plaintiffs in response to the deposition notice. McLaughlin Decl. ¶ 14.

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None of these documents related to Chatham. Id.

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B.

May 26, 2011 Deposition of Richard Prins

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Plaintiffs first took Prins’ deposition on May 26, 2011. McLaughlin Decl. ¶ 11, Ex. 1;

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Declaration of S. Mark Varney in Support of Defendant’s Opposition (“Varney Decl.”) Ex. A

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(Docket No. 146). In that deposition, Prins mentioned Chatham several times. He first mentioned

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Chatham in response to a question regarding the male connector pin recovered from the fire.

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In the time frame, the male pin - - and I can’t be certain that the male
pin is exactly ours. As a product in the time frame of this control and
in mattress pads, we made controls for a company called Chatham
Manufacturing Company. They sold and made a product in the
beginning. In the early 80’s, we made a mattress pad for them, they
later on made their own mattress pads. We sold controls to them.

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In that regard, I do not have a representative sample of their male pin,
their manufactured male pin, and I didn’t do an analysis of the male
pin remains which probably will have to be looked at further to further
identify if it matches the pin drawing that we have. It doesn’t mean
that they didn’t use the same pin, but there is that possibility that the
mattress pad could be a Rest Warmer by Chatham Manufacturing
Company pad with our control. There’s that possibility.

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McLaughlin Decl. Ex. 1 at 91-92. A short time later, Plaintiff’s counsel asked Prins a follow up

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question about Chatham:

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Q:

And you don’t know whether or not Chatham used a similar
pin?

A:

That is correct or was slightly different and that could have
been very close.

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Id. at 95-96.

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At the close of the deposition, Plaintiffs’ counsel again asked Prins about the design of the

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Chatham mattress pads. Prins had been discussing the design of the connector unit, and noted that

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the connector pins were not “in a horizontal line with the body of the connector” but were slightly

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offset. Varney Decl. Ex. A at 199. Plaintiffs’ counsel then asked:

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Q:

Mr. Prins, you mentioned that Sunbeam made controls for a
period of time for Chatham as well, correct?

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A:

Correct.

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Q:

The Chatham product did not have the offset, did it?

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A:

When we first started manufacturing the mattress pads for them
with the offset and they continued to use the offset for a period
of time while we supplied them with controls when they
manufactured them.

Q:

But then they went to non-offset?

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They went to a different type of connection because they had
their own control and the connector was modified, their
connectors were modified.

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Id. at 199-200.
At one point in the deposition, Prins mentioned that Defendant made mattress pads for other

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manufacturers during the early 1980s. McLaughlin Decl. Ex. 1 at 26. Later, he mentions that

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Defendant manufactured electric mattress pads for companies such as Sears and JC Penny during the

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relevant period of time, though products made for such companies may have used different fabric or

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styles of controllers. Id. at 149-50. These mattress pads, however, would have used the same

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electrical components as the mattress pads sold under Defendant’s brand name. Id.

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Neither party points to any other mention of Chatham in the deposition. It does not appear

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that Plaintiff’s counsel asked for, or that Prins volunteered, information about the number of

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mattress pads Defendant sold to Chatham during the relevant period of time.

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C.

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Further Discovery
After the May 2011 Prins deposition and prior to Defendant’s motion for summary judgment,

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Plaintiffs did not request, and Defendant did not produce, any information about the quantity of

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controllers Defendant sold to Chatham during the relevant period of time. McLaughlin Decl. ¶ 7;

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Varney Decl. ¶ 4. Prior to the close of discovery, Plaintiffs did not propound any interrogatories or

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requests for production of documents seeking further information about Chatham. Varney Decl. ¶ 4.

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Non-expert discovery closed on August 24, 2012. Docket No. 63.1

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On October 23, 2012, this Court denied Plaintiff’s motion to re-open non-expert discovery
to take depositions unrelated to this dispute. Docket No. 107.

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The parties disagree about why Prins’ deposition was not completed on May 26, 2011. Pl.’s

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Mot. at 6 (Plaintiffs claim deposition made clear that Defendant had failed to produce certain

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necessary documents, and that this necessitated adjourning the deposition); Def.’s Opp. at 1

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(Defendant claims the parties decided to adjourn for the day because the deposition had already gone

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from approximately 9:00 am to approximately 5:00 pm). A June 21, 2011 joint case management

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statement indicated that the parties were working on setting a date to continue Prins’ deposition.

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Docket No. 48. While Plaintiffs generally allege that they “repeatedly tried to schedule Mr. Prins’

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continued deposition,” they point to no specific further actions they took to do so until a July 26,

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2012 letter asking Defendant to schedule a date. Pl.’s Mot. at 8; McLaughlin Decl. ¶ 16.2 In
response to that letter, Defendant offered to schedule the remainder of the deposition for September

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25, 2012. Id. The deposition was later moved to October 23, and then October 30 due to health

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problems that Prins’ wife was having. Id.3

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On September 13, 2012, Plaintiffs served Defendant with a request for production of

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documents in connection with Prins’ deposition.4 Varney Decl. ¶ 5. In response to this request,

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Defendant produced engineering drawings of controls manufactured by Defendant, including the

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controls that Defendant sold to Chatham. McLaughlin ¶ 17.3. In the letter accompanying the

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documents, Defendant’s counsel stated that the documents produced a that time were “the

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documents that Richard Prins agreed that we would produce at his deposition.” Fiore Decl. Ex. 1

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(Docket No. 151-2).

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Plaintiffs do allege that in another case their counsel had against Defendant, a deposition
with Prins that was set for April 4, 2012 was moved because Prins’ wife was having health
problems. McLaughlin Decl. ¶ 16. Plaintiffs offer no specific facts pertaining to this case or any
other as to why they did not request a date to complete the deposition between June 2011 and April
2012.
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Plaintiffs also argue that Defendant unreasonably delayed producing Prins for the first half
of the deposition, and offer facts to this effect. Pl.’s Mot. at 6. Given that the first half of the
deposition ultimately occurred over a year prior to the close of non-expert discovery, it is not clear
what relevance this delay has for the instant motion.
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Defendants contend that this request was untimely as non-expert discovery was already
closed at this point.

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At no time between the May 2011 deposition of Prins and the September 2012 request for

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production did Plaintiffs promulgate any written discovery or notice any deposition directed at

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determining whether the mattress pad could have been manufactured by Chatham. Nor did Plaintiffs

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bring any motion to compel the completion of Prins’ deposition.

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D.

Motion for Summary Judgment and October 30, 2012 Prins Deposition

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On October 25, 2012, Defendant filed a motion for summary judgment, attaching a

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declaration by Prins in support. Docket No. 109 Ex. 5 (“Prins Decl.”). That declaration contained

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the following statements pertaining to Chatham:

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31.

For some years between 1977 and 1987, Sunbeam
manufactured and sold the same type of control as recovered
from the fire scene to Chatham Manufacturing Company for
use in Chatham conventionally wired mattress pad products.

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Chatham annually purchased approximately 400,000
conventionally wired mattress pad control sets from Sunbeam;
in all, Sunbeam sold in excess of one million of these controls
to Chatham.

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During the years that Sunbeam sold such controls to Chatham
Manufacturing Company, Sunbeam made about 250,000 of its
own conventionally wired mattress products on an annual
basis.

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38.
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Based on all photographs I reviewed of the fire scene and the
evidence that was preserved from the fire scene, there is
insufficient evidence to conclude whether the conventionally
wired mattress pad product was one made by Sunbeam or
Chatham.

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Prins Decl. ¶¶ 31-33, 38.
The second half of Prins’ deposition finally went forward on October 30, 2012. In the

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deposition, he affirmed that Defendant had sold control units for electric mattress pads to Chatham

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during the relevant period of time. McLaughlin Decl. Ex. 1 at 223. He confirmed the statements

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from his declaration regarding the approximate number of control units Defendant sold to Chatham,

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though he acknowledged that he did not have specific records to back up these figures. Id. at 224.

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Prins offered additional detail about the timeline of the relationship between Defendant and

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Chatham, stating that for the first year, Defendant made all of the electrical components for

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Chatham’s mattress pads, and that for some years after that, Defendant supplied the control unit, but

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Chatham made their own heating element. Id. at 228-29, 235-36, 260-61.

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At the deposition, Prins testified that the control unit found at the scene of the fire appeared
to be one manufactured by Defendant. McLaughlin Decl. Ex. 1 at 261.

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Q:

And the mattress pad and the control that’s the subject of this
case, the one that was filed in the - - found in the Bookhamer
home, was a control that - - the portions of the control appear
to be manufactured by us; correct?

A:

By Sunbeam, yes.

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Q:

But that the actual mattress pad itself may certainly have been
manufactured by Chatham; correct?5

A:

Correct.

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Id. at 261.
Plaintiffs contend that because of Prins’ statements in his declaration and second deposition,

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“[t]he facts in this case have recently changed” such that they should be permitted to file an

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amended complaint adding Chatham as a defendant. Pl.’s Mot. at 2.

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III.

DISCUSSION

Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend pleadings

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should be freely given when justice so requires. See Fed. R. Civ. Proc. 15(a)(2). The Ninth Circuit

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has held, however, that “[a]mendments seeking to add claims are to be granted more freely than

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amendments adding parties.” Union Pac. R. Co. v. Nevada Power Co., 950 F.2d 1429, 1432 (9th

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Cir. 1991). In determining whether to grant or deny a motion for leave to amend, the court considers

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four factors: “(1) bad faith on the part of the plaintiffs; (2) undue delay; (3) prejudice to the opposing

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party; and (4) futility of the proposed amendment.” Lockheed Martin Corp. v. Network Solutions,

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Inc., 194 F.3d 980, 986 (9th Cir. 1999) (citing Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 878

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(9th Cir. 1999)); see also Foman v. Davis, 371 U.S. 178, 182 (1962). These factors do not carry

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Plaintiffs’ counsel objected to this question as leading. McLaughlin Decl. Ex. 1 at 261. As
it is Plaintiffs who are now citing to this section of the deposition, this Court will treat the objection
as withdrawn.

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equal weight; prejudice is the crucial factor. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1052 (9th Cir. 2003).

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The question of prejudice is closely linked with analysis on undue delay; prejudice is

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generally found where the amendment would cause substantial delay in the proceedings. See

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Lockheed Martin, 194 F.3d at 986 (finding prejudice where the amendment would require the court

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to reopen discovery and delay the proceedings); Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1995)

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(indicating that issue is whether the amendment will cause “[e]xpense, delay, and wear and tear on

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individuals and companies”). One key factor in determining whether there has been undue delay is

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“whether the moving party knew or should have known the facts and theories raised by the
amendment in the original pleading.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir.

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1990). Courts generally find both undue delay and prejudice where amending the complaint would

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require re-opening discovery. See Lockheed Martin, 194 F.3d at 986; Solomon v. N. Am. Life &

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Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir. 1998) (finding undue delay and prejudice where

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plaintiff sought to amend complaint on the eve of the discovery deadline); Campbell v. Emory

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Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999) (“Prejudice and undue delay are inherent in an

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amendment asserted after the close of discovery and after dispositive motions have been filed,

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briefed, and decided.”).

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In this case, allowing Plaintiffs to amend their complaint would clearly result in undue delay.

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In their initial motion, Plaintiffs state that they are not seeking to move the trial date or other pre-

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trial deadlines. Pl.’s Mot. at 11. In the reply brief, however, they concede that granting their motion

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and allowing them to add Chatham as a defendant would require a “brief continuance,” though they

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contend that it would not require more than a limited re-opening of discovery. Reply at 6-7. At this

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point, non-expert discovery in this matter has been closed for approximately three months. Docket

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No. 63 (scheduling order). While the parties seem to have some ongoing disputes about expert

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discovery, expert discovery is well underway. Docket No. 147 (joint case management statement).

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The deadline for dispositive motions has passed, and this Court has heard and decided Defendant’s

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motions for summary judgment. Trial is set to begin in just over two months. Plaintiffs’ proposed

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amended complaint adds an additional defendant, Chatham, who would need the opportunity to

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conduct its own discovery, file its own potentially dispositive motions, and prepare for trial. If

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Chatham were added as a defendant, they would need months to conduct discovery in defending this

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case. Under these circumstances, Plaintiffs’ contention that a brief postponement and limited

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additional discovery would be sufficient is plainly unrealistic.

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Plaintiffs argue that their late request is justified because they were previously unaware that

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Chatham was a potential defendant, and because Defendant failed to disclose required information

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about Chatham. Plaintiffs state that prior to the Prins declaration and the second half of the Prins

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deposition in late October 2012, they did not have sufficient information to satisfy the requirements

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of Rule 11 in adding Chatham as a defendant. Pl.’s Mot. at 4-5. In his May 2011 deposition,
however, Prins specifically identified the possibility that Chatham may have manufactured the

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mattress pad that caused the fire. Varney Decl. Ex. A at 91-92. Plaintiffs’ counsel asked several

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follow up questions. Varney Decl. Ex. A at 91-92, 95-96, 199-200. It is thus clear that Plaintiffs

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had inquiry notice of the possibility that Chatham had made the mattress pad that started the fire.

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Other than the follow up questions in the deposition, it appears that Plaintiffs sought no

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additional discovery on Chatham in the fifteen months between the initial Prins deposition and the

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close of non-expert discovery in August 2012. Indeed, from the record on this motion, it is not clear

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that they took any affirmative steps to try and schedule the remainder of Prins’ deposition until June

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2012, more than a year after the initial deposition. Even if Plaintiffs did not have sufficient

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information to add Chatham as a defendant based solely on Prins’ remarks in the deposition, they

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offer no explanation why they could not have conducted discovery during the fifteen months

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between the first Prins deposition and the close of discovery to determine whether there might be a

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basis to add Chatham as a defendant.

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Plaintiffs argue that, under Rule 26, “Sunbeam had an affirmative duty, without waiting for a

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discovery request by Plaintiffs, to timely provide Plaintiffs with information supporting its

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affirmative defense concerning Chatham.” Reply at 3. As an initial matter, Plaintiffs’

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categorization of the argument that Chatham may have made the product as an affirmative defense is

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an error. Plaintiffs bear the burden of showing that the allegedly defective mattress pad was

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Defendant’s product as one of the elements of their prima facie case. See Garcia v. Joseph Vince

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Co., 84 Cal. App. 3d 868, 874 (Ct. App. 1978) (“Regardless of the theory which liability is

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predicated upon, whether negligence, breach of warranty, strict liability in tort, or other grounds, it is

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obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular

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product, there must first be proof that the defendant produced, manufactured, sold, or was in some

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way responsible for the product.”); CACI 1203 (first element to for strict liability consumer

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expectations test is that the defendant manufactured, distributed or sold the product); CACI 1220

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(first element for product liability negligence claim is that the defendant designed, manufactured,

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supplied, installed, inspected, repaired, or rented the product). “A defense which demonstrates that

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plaintiff has not met its burden of proof is not an affirmative defense.” Zivkovic v. S. California

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Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002).
Rule 26 requires that “a party must, without awaiting a discovery request, provide to the
other parties:
(i) the name and, if known, the address and telephone number of each
individual likely to have discoverable information – along with the
subjects of that information – that the disclosing party may use to
support its claims or defenses, unless the use would be solely for
impeachment;
(ii) a copy – or a description by category and location – of all
documents, electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or control and may
use to support its claims or defenses, unless the use would be solely
for impeachment;

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Rule 26(1)(A) (emphasis added). Defendant argues that it was under no duty to disclose further

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information about Chatham under Rule 26 because it did not intend to call any witnesses affiliated

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with Chatham in its defense, and did not intend to rely on any Chatham documents in presenting its

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case. Def.’s Opp. at 3. Indeed, in its motion for summary judgment, Defendant relied only on the

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testimony of Richard Prins to establish the possibility that Chatham may have manufactured the

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mattress pad. Docket No. 109 at 8-9. Prins was identified as a potential witness in Defendant’s

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initial disclosures. McLaughlin Decl. Ex. 3 at 4. The only documents related to Chatham that the

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parties discuss in this motion are the engineering diagrams that Defendant produced to Plaintiffs on

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October 3, 2012.6 Defendant did not rely on these diagrams in its motion for summary judgment.

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See Docket No. 109 and attachments. Thus, as Defendant did not intend to rely on Chatham

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documents or witnesses, and in fact did not rely on them in its motion for summary judgment, it

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appears that Defendant did not have an obligation under Rule 26 to disclose any additional

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information about Chatham.7

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Plaintiffs have thus not shown good cause for their delay in requesting to add Chatham as a

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defendant in this case. This significant delay, and the expense resulting from re-opening discovery,

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are sufficient to show prejudice to Defendant. See Lockheed Martin, 194 F.3d at 986. While it is

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not clear that the other factors under Rule 15 weigh heavily against allowing the amended
complaint,8 the undue delay and prejudice that would result from granting Plaintiffs’ motion are

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significant, and are enough to deny that motion.

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Defendant requests that, in the event that this Court grants Plaintiffs’ motion, Plaintiffs be

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required to pay the fees and costs associated with the delay and re-opening of discovery. Def.’s

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Mot. at 9. As this Court is denying Defendant’s motion, this issue is moot.

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Plaintiffs point to the letter accompanying these documents, which states that Prins had
agreed that Defendant would produce the documents at his deposition. Plaintiffs do not indicate that
they filed any discovery requests or motions to compel regarding these documents between the May
2011 Prins deposition and the close of discovery in August 2012. While the letter does suggest that
Defendant may have been seriously delinquent in producing documents they had indicated they
would provide, this still does not negate the fact that Plaintiffs had notice that Chatham may have
manufactured the mattress pad almost a year and a half before filing the instant motion.
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Of course, if Defendant attempts to introduce any previously undisclosed witnesses or
documents related to Chatham at trial, there may be grounds to exclude them at that point for failure
to comply with Rule 26 and the duty to supplement disclosures. See Rule 26(e)(1)(A).
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Defendants argue that Plaintiffs’ attempt to amend the complaint at this late point in the
litigation is in bad faith, motivated by the fact that they recently lost various discovery motions and
thus wish to bring in Chatham as a defendant so they can re-open discovery. Def.’s Opp. at 4.
While there does not seem to be a good excuse for Plaintiff’s delay in seeking to add Chatham, the
current record does not give sufficient indication that the motion is brought in bad faith, particularly
since there is a sufficient basis to think that Chatham may have been the manufacturer of the
mattress pad.
Similarly, it does not appear that amending the complaint would be frivolous. While it
appears that there may be a statute of limitations issue on some claims, see Pl.’s Mot. at 9-10,
Plaintiffs assert arguments that appear non-frivolous for why the statute of limitations has not yet
run as to at least some of the claims.

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Plaintiffs also request that Defendants be required to pay fees and costs for “[a]ny

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duplicative efforts” since they argue that Defendant did not provide timely notice of information and

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arguments related to Chatham’s possible manufacture of the mattress pad. Pl.’s Reply at 7-8. As

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discussed above, it does not appear that Defendant was delinquent in disclosing required

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information. There was sufficient disclosure in Prins’ first deposition. Accordingly, this Court

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denies Plaintiff’s request for fees.

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CONCLUSION

For the forgoing reasons, Plaintiffs’ motion to file a fourth amended complaint is DENIED.
The requests of both Defendant and Plaintiffs for fees and costs are also DENIED.
This order disposes of Docket No. 129.

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IV.

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IT IS SO ORDERED.

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Dated: December 20, 2012
_________________________
EDWARD M. CHEN
United States District Judge

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