Menendez et al v. Wal-Mart Stores, Inc. et al

Filing 279

OPINION AND ORDER DENYING 248 MOTION for Leave to File Amended Answer to Plaintiffs' Complaint filed by defendant NES Equipment Services Corp. Signed by Magistrate Judge Roger B Cosbey on 6/13/12. (jcp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
HUMBERTO GUSTAVO MENENDEZ, et al.,
Plaintiffs,
v.
WAL-MART STORES EAST L.P., et al.,
Defendants.

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CAUSE NO. 1:10-CV-00053

OPINION AND ORDER
Before the Court in this industrial accident case is Defendant NES Equipment Services
Corporation’s Motion for Leave to File Amended Answer to Plaintiffs’ Complaint (Docket #
248), seeking to amend its answer to (1) assert twenty additional affirmative defenses that would
be applicable should it be found to have a duty related to the manufacture or design of the aerial
lift at issue in this case, and (2) add non-party, Honeywell Hobbs, the manufacturer/vendor of the
key switch on the lift. Plaintiffs oppose NES’s motion, contending that NES failed to act with
due diligence in seeking to add these affirmative defenses, the addition of the nonparty is futile,
and the proposed amendment near the close of discovery is unduly prejudicial.
For the following reasons, NES’s motion to amend will be DENIED.
A. Factual and Procedural Background
Plaintiffs sued Defendants for negligence in Hidalgo County, Texas, District Court after
Humberto Gustavo Menendez became pinned between an overhead steel structure and an aerial
lift basket on November 20, 2006, resulting in his subsequent death. (Docket # 1.) Defendants
timely removed this case to federal court in the Southern District of Texas on November 26,

2008, under 28 U.S.C. § 1332(a). (Docket # 1.) On February 11, 2010, the case was transferred
to the Northern District of Indiana. (Docket # 116.)
On June 8, 2010, the Court conducted a scheduling conference and set an August 1, 2011,
deadline for the completion of all discovery; thirty days after the Court rules on the choice of law
issue as the deadline for any amendments to the pleadings by Plaintiffs; and forty-five days after
the Court rules on the choice of law issue as the deadline for any amendments to the pleadings by
Defendants. (Docket # 160.) On January 28, 2011, the Court vacated the discovery deadlines, to
be reset after it determined the applicable law in the case. (Docket # 206.)
On May 24, 2011, the Court determined that Indiana law applies to this dispute. (Docket
# 213, 215.) Shortly thereafter, the Court established the following deadlines: March 15, 2012,
for the completion of fact discovery; April 16, 2012, for expert witness disclosures and reports by
Plaintiffs and June 16, 2012, by Defendants; and August 15, 2012, for the completion of all
discovery (Docket # 216). On March 15, 2012, the Court extended the discovery and expert
disclosure deadlines at Plaintiffs’ request, setting May 15, 2002, for fact discovery; June 18,
2012, for expert disclosures and reports by Plaintiffs and August 15, 2012, by Defendants; and
October 15, 2012, for the completion of all discovery.1 (Docket # 246.)
B. Applicable Legal Standard
Leave to amend a pleading is freely given when justice so requires. Fed. R. Civ. P.
15(a)(2). However, this right is not absolute, Brunt v. Serv. Employees Int’l Union, 284 F.3d
715, 720 (7th Cir. 2002), and can be denied for undue delay, bad faith, dilatory motive, prejudice,

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Also pending before the Court is Plaintiffs’ request for an additional sixty-day extension of these
deadlines (Docket # 249), which the Court will address in a separate Opinion and Order.

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or futility. Ind. Funeral Dirs. Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 655 (7th Cir.
2003).
Moreover, the requirements of Rule 15 must be read in conjunction with the requirements
of Federal Rule of Civil Procedure 16 because once the district court has filed a pretrial
scheduling order pursuant to Rule 16 establishing a time table for amending pleadings, that rule’s
standards control. Alioto v. Town of Lisbon, 651 F.3d 715, 719 (7th Cir. 2011); BKCAP, LLC v.
Captec Franchise Trust 2000-1, 3:07-cv-637, 2010 WL 1222187, at *2 (N.D. Ind. Mar. 23,
2010). Thus, “a party seeking to amend a pleading after the date specified in a scheduling order
must first show ‘good cause’ for the amendment under Rule 16(b); then, if good cause is shown,
the party must demonstrate that the amendment is proper under Rule 15.” BKCAP, 2010 WL
1222187, at *2 (quoting Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995)); see Alioto,
651 F.3d at 719 (collecting cases). “[T]he good cause standard focuses on the diligence of the
party seeking the amendment.” BKCAP, 2010 WL 1222187, at *2 (citing Tschantz, 160 F.R.D. at
571); see Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir.
2005).
C. Analysis
Here, the deadline for NES to amend its pleadings was May 24, 2011—that is, forty-five
days after the Court ruled that Indiana law applies to this matter. Therefore, because NES’s
motion was filed after the deadline, it must first establish “good cause” for the untimely
amendment.
To that end, NES states that Plaintiffs’ complaint alleges NES was negligent only in the
maintenance of the lift but not its manufacture or design. At NES’s Rule 30(b)(6) deposition,
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however, Plaintiffs’ questioning suggested that NES had a duty—independent of JLG Industries,
Inc., the manufacturer and designer of the lift—to perform certain tests or analyses on the lift
prior to procuring it and offering it for rental. Although NES denies that it has such a duty, it
now desires to amend its answer to assert twenty additional affirmative defenses arising out of
Indiana’s Product Liability Act—including the defenses of sudden emergency, that the injury was
not foreseeable to NES, and intervening or superseding cause—that would be applicable should
NES be found to have a duty related to the manufacture or design of the lift.
NES also contends that as a result of JLG’s 30(b)(6) deposition in February 2012, NES
learned that JLG was taking the position that the key switch of the lift was designed such that the
key could only be removed when placed in the “off” position. Since the key was not in the lift at
the time of the accident, NES has now deduced, however—ostensibly for the first time—that the
key switch itself was defectively manufactured. Accordingly, NES wants to add the
manufacturer/vendor of the key switch, Honeywell Hobbs, as a non-party, emphasizing it has
acted with “reasonable promptness” under Indiana Code § 34-51-2-16, which governs the
naming of a nonparty whose existence was not previously known to a defendant when the statute
of limitations expired.
NES’s proffered reasons for the untimely amendment, however, fall short of providing
good cause to amend its answer at this stage of the proceedings. The amendment comes almost
one year after Defendants’ deadline for amendments, and the discovery period will soon close.
The Court is unconvinced that NES could not have, with the exercise of reasonable diligence,
anticipated the need for these twenty affirmative defenses much sooner than May 1, 2012.
Allowing NES to add these defenses when discovery is in its final stages would unduly prejudice
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Plaintiffs, as they have already questioned NES’s corporate representative about the facts
underlying its affirmative defenses at the 30(b)(6) deposition on January 17, 2012. See
Continental Bank, N.A. v. Meyer, 10 F.3d 1293, 1298 (7th Cir. 1993) (stating that an amendment
to a pleading that forces additional discovery can be unduly prejudicial).
Moreover, NES was present on the scene on the day of the accident and then returned one
week later for further investigation. Thus, they have known for more than three years that the
key was not in the lift at the time of the accident. And as the rental company offering the subject
lift, NES is certified in operating and servicing it. Given this knowledge, NES’s suggestion that
it only recently became aware of the potentially-defective key switch is unconvincing.
Furthermore, as Plaintiffs emphasize, the addition of Honeywell Hobbs as a non-party
seems redundant and immaterial with respect to their case against NES since JLG, the designer
and manufacturer of the lift, is a party to this litigation. See Campania Mgmt. Co. v. Rooks, Pitts
& Poust, 290 F.3d 843, 850 (7th Cir. 2002) (“A court may determine that a proposed amendment
is futile if it sets forth facts or legal theories that are redundant, immaterial, or unresponsive to
the allegations in the complaint.”). Indeed, it would seem that JLG, rather than NES, would be
the party to seek to add Honeywell. Yet, JLG has remained silent on the matter, even though it
ostensibly knew sometime after its initial inspection of the subject lift—that is, more than three
years ago—that the lift was not operating as designed relative to the key switch issue.
Consequently, the addition of Honeywell at this late stage would unduly prejudice Plaintiffs’ case
against JLG, the most likely benefactor of NES’s initiative to add nonparty Honeywell Hobbs.
See, e.g., Mayer v. Farrel Corp., No. 91 C 20194, 1993 WL 398623, at *4 (N.D. Ill. Oct. 8,
1993) (denying motion to amend answer where the timing of defendant’s motion threatened
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plaintiff with substantial prejudice).
Therefore, for all these reasons, NES’s motion to amend its answer will be DENIED.
D. Conclusion
For the foregoing reasons, Defendant NES Equipment Services Corporation’s Motion for
Leave to File Amended Answer to Plaintiffs’ Complaint (Docket # 248) is DENIED.
SO ORDERED.
Enter for June 13, 2012.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

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