Peeples et al v. Custom Pine Straw, Inc. et al

Filing 24

ORDER denying 22 Motion for Extension of Time to Complete Discovery; denying 22 Motion for Extension of Time to Amend 7 Scheduling Order; denying 22 Motion to Dismiss; denying 23 Motion to Dismiss. Signed by Magistrate Judge G. R. Smith on 12/11/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
RAYMOND T. PEEPLES and
MARTHA PEEPLES,
Plaintiff,
v.

Case No. CV415-039

CUSTOM PINE STRAW, INC.,
WESTFIELD INSURANCE
COMPANY,
Defendants.

ORDER
While employed by Lowes, Raymond T. Peeples crawled
underneath a pine-straw loaded truck trailer to retrieve some stored sod.
Doc. 11 at 4; doc. 13-1 at 1-2. 1 One of the trailer’s tires then exploded,
permanently damaging his hearing. Joined by his wife (consortium
claim), he filed this personal injury case against the trailer’s owner,
Custom Pine Straw, Inc. (“CPS”), and its insurer, Westfield Insurance
Company. Doc. 11 at 6. Over two months after the defendants moved
for summary judgment contending that plaintiffs cannot prove

For the purpose of this Order, the Court is accepting as true the factual assertions
contained in the parties filings, including their Joint Status Report. Doc. 11.
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negligence, 2 plaintiffs moved to extend discovery and amend their
Complaint to add a negligence per se claim. Docs. 22 & 20.
Alternatively, they seek leave to dismiss their case without prejudice.
Doc. 22 at 1, 8.
Those two motions are before the undersigned. Defendants oppose,
arguing that plaintiffs conducted no discovery for some 1.5 years in this
case (it began in state court, then was removed here), and only in the
face of a pending summary judgment motion are they now endeavoring
to supplement their case. Doc. 23. These facts are not disputed. In fact,
plaintiffs’ counsel attests that they want to retain an expert in support of
their summary judgment opposition motion. Doc. 22-1 at 5 ¶ 16. They
also would like to depose a CPS representative, as well as a Lowes
representative, about the Lowes/CPS contract. Id.
The parties’ “summary judgment motion” facts inform the
determination that must be made here. First, Raymond “Peeples admits
that he has no idea what caused the tire to fail. He likewise has failed to
come forward with any expert testimony to show what caused the tire to

2

That August 7, 2015 motion (doc. 13) remains before the district judge.
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fail.” Doc. 13-1 at 4 (cited omitted). And “[a]t no time while Mr. Peeples
was under the trailer did [he] see any problems with the tires.” Id. at 1.
Second, CPS contends that there is no way Peeples can prove his
negligence claim against it. Id. at 6 (citing Cope v. Enter. Rent-A-Car ,
250 Ga. App. 648, 650 (2001)). 3 With that claim impaled, the ancillary

3

Defendants further explain that CPS’s:
driver delivered the trailer to [Lowes] on June 15, 201[2], thirteen days prior
to the subject incident. During that time, the trailer was in the exclusive
control of Lowes in its parking lot. At some point after delivery, Lowe’s
employees presumably moved pallets of sod by forklift under the trailer,
placing the pallets near the trailer tires. Because sod was delivered on a
Thursday typically, it is possible that more than one shipment of sod was
stored under the trailer. From the date of delivery to the date of the incident,
no one reported to [CPS] that there were problems with the trailer tires. Mr.
Peeples likewise confirmed that he did not observe any problems with the tires
during the ten to fifteen minutes that he was under the trailer. He likewise
confirmed he had no idea what caused the tire to fail and he has failed to come
forward with any evidence, expert testimony or otherwise, to show what
caused the tire to fail.

Doc. 13-1 at 6. Defendants conclude that plaintiffs “have failed to introduce any
evidence that any alleged failure to maintain [CPS’s] trailer was in the cause in fact
of Mr. Peeples injuries. Therefore, [defendants] are entitled to summary judgment.”
Id.
The Court notes Firestone Tire. Co. v. King , 145 Ga. App. 840, 842 (1978) (tire
blew out, injuring plaintiff, whose experts “could not specify the exact nature of the
defect which, in their opinion, caused the tire to fail, but instead merely speculated as
to possibilities such as contamination of materials or undervulcanization”; held, “We
do not agree that it was necessary for the [plaintiff] to specify the nature of the defect
in order to meet her burden of proof. It has often been held that the existence of a
manufacturing defect in a products liability case may be inferred from circumstantial
evidence.”), quoted in Gen. Motors Corp. v. Blake , 237 Ga.App. 426, 429-30 (1999). Of
course, CPS is not a tire manufacturer, and plaintiffs raise no product liability claims
here, only simple negligence. And their negligence claim is predicated on obviously
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claims (attorney fees, claim against the insurer, consortium) also fail,
entitling defendants to complete summary judgment.

Id. at 9.

Defendants thus insist that further discovery would be futile.

Id.

Plaintiffs concede that the blown tire was lost after the incident,
and they accuse no one of any wrongdoing (spoliation, for example) on
that score. Doc. 18 at 6. They do have a pre-explosion picture of the tire
but concede they have no expert witness (again, there is now no tire to
examine). Id. But (they claim) their picture shows that the tire was
unmolested by external forces. And (they contend) CPS had a duty to
inspect and maintain the tire (CPS says one of its employees inspected it
on June 11, 2012, and this incident occurred 13 days later). Hence,
plaintiffs conclude, a jury issue exists over whether CPS breached its
duty to maintain its tire so it would not explode on a hot summer day.

Id. at 7; see also id. at 9-11 (invoking the res ipsa loquitur doctrine); doc.
18 at 18 (picture of the blown tire). They have also moved under Fed. R.
Civ. P. 56(d) to defer summary judgment ruling until they “have the
speculative evidence: Since there is no tire to analyze, no causational analysis can be
expertly performed. And even were plaintiffs to show negligence per se, they still
must prove causation, Groover v. Johnston , 277 Ga. App. 12, 17 (2005) (even when
negligence per se has been shown, proximate cause must still be proved), which at
best is an uphill if not impossible task in this case -- evidently why plaintiffs expressly
seek, as an alternative, a no-cost dismissal under Rule 41.
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opportunity to obtain an affidavit and take discovery in this case.” Id. at
12.
As noted, plaintiffs waited until nearly two months after
defendants moved for summary judgment before seeking to amend their
Complaint. Doc. 20. They say they want to add “an additional count of
negligence per se based on the [CPS’s] violation of federal rules and
regulations related to the inspection and maintenance of a commercial
carrier.” Id. at 1. Plus, their “new counsel” raised a negligence per se
encompassing argument in their response to defendants’ summary
judgment motion, and now they want to formally plead that claim. Id. at
1-2. They thus “request an amendment to the scheduling order to allow
for limited discovery, including filing an expert report.” Id. at 4. Hence,
they want to use an expert witness which (they fail to acknowledge this)
will entitle the defendants to conduct discovery (depose the expert, etc.).
The Court agrees with the defendants. Plaintiffs had until April
20, 2015 to amend their Complaint, until June 14, 2015 to furnish an
expert witness report, and until July 9, 2015 to complete discovery. Doc.
7 at 1-2 (Scheduling Order). They must show good cause to justify leave
to amend the pleadings after the Scheduling Order’s deadlines. Fed. R.
5

Civ. P. 16(b)(4); Sosa v. Airprint Sys., Inc ., 133 F.3d 1417, 1418 (11th
Cir. 1998). “Once a party seeking untimely amendment has met the
‘good cause’ standard of Rule 16(b), the Court will examine whether the
substance of the amendment meets the requirements of Rule 15(a)(2).”

Remington v. Newbridge Sec. Corp ., 2014 WL 505153 at * 12 (S.D. Fla.
Feb. 7, 2014), quoted in Cafaro v. Zois , 2015 WL 7768231 at * 1 (S.D. Fla.
Dec. 2, 2015).
To determine good cause this Court “looks to whether the evidence
supporting the proposed amendment would not have been discovered in
the exercise of reasonable diligence until after the amendment deadline
had passed.” Stonecrest Partners, LLC v. Bank of Hampton Roads , 770
F. Supp. 2d 778, 784 (E.D.N.C. 2011); see also Romero v. Drummond Co .,
552 F.3d 1303, 1319 (11th Cir. 2008) (“To establish good cause, the party
seeking the extension must have been diligent.”). No such evidence has
been supplied here. Plaintiffs point to their “new counsel” as a
mitigating factor, but as defendants point out (doc. 23 at 2-3), she was in
this case until it was removed. Doc. 1-1 at 14; doc. 12; see also doc. 15;
doc. 22-1. After joining this Court’s bar, she re-appeared in this case.
Notably, her affidavit here fails to mention that she represented
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plaintiffs when their case was in the state court. Nor do plaintiffs show
what, following removal, prevented the two lawyers who represented
them from timely amending their Complaint. Indeed, it is obvious that
counsel waited until defendants educated them to the hole in their case
before they thought about bolstering it with a negligence per se theory. 4
And that unfolded after defendants undertook their discovery, while
plaintiffs invested in none. Doc. 23 at 2.
Plaintiffs’ motions (docs. 22 & 23) therefore are DENIED .

This SO ORDERED , this 11th day of December, 2015.

-

.

UNITEDSTATESMAGISTRATEJUDGE
SOUTHERNDISTRICTOFGEORGIA

See Ross v. Am. Red Cross , 567 F. App’x 296, 306 (6th Cir. 2014) (“A plaintiff does
not establish good cause to modify a case schedule to extend the deadline to amend
the pleadings where she was aware of the facts underlying the proposed amendment
to her pleading but failed, without explanation, to move to amend the complaint
before the deadline.”) (quotes and cite omitted); Soroof Trading Dev. Co., Ltd. v. GE
Microgen, Inc ., 283 F.R.D. 142, 147 (S.D.N.Y. 2012) (“[I]f the proposed amendment
relies on information that the party knew or should have known prior to the
deadline, leave to amend is properly denied”); In re Acceptance Ins. Cos., Sec. Litig. ,
352 F. Supp. 2d 928, 933 (D. Neb. 2003) (“[W]hen a motion to amend a complaint is
based on allegedly new information that the plaintiff knew, or through the exercise of
reasonable effort could have known at an earlier time, the motion should be denied”),
cited in John Hancock Life Ins. Co. (U.S.A.) v. Allen , 2014 WL 5488832 at * 3 n. 4
(S.D. Ala. Oct. 28, 2014).
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