Heath v. Isenegger et al
Filing
49
OPINION AND ORDER: Court GRANTS 40 Third Motion for Leave to File Amended Answer and Affirmative Defenses. Signed by Magistrate Judge Andrew P Rodovich on 6/28/2011. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
WORNER O. HEATH, JR.,
)
)
Plaintiff
)
)
v.
) CIVIL NO. 2:10 cv 175
)
JAMES M. ISENEGGER, II; SWIFT
)
TRANSPORTATION SERVICES LLC aka )
Swift Transportation Corporation;)
SWIFT TRANSPORTATION CO. ARIZONA )
LLC aka Swift Transportation Co. )
Inc.,
)
)
Defendants
)
OPINION AND ORDER
This matter is before the court on the Third Motion for
Leave to File Amended Answer and Affirmative Defenses [DE 40]
filed by the defendants on May 27, 2011.
For the following
reasons, the motion is GRANTED.
Background
This matter arises from an automobile accident that occurred
on April 19, 2010.
The plaintiff, Worner O. Heath, Jr., filed a
complaint with this court on April 27, 2010.
After a series of
extensions of time, the defendants, James M. Isenegger, II, Swift
Transportation Co., Inc., and Swift Transportation Corporation,
first filed a responsive pleading on June 16, 2010.
A status
conference was held on October 22, 2010, and the discovery deadline was set for May 31, 2011, although it later was extended
through September 15, 2011.
The defendants subsequently were
granted leave to amend their answer, and they filed their first
amended answer on March 4, 2011.
In the amended answer, the
defendants raised a nonparty defense and identified Illinois
Central School Bus, LLC and Ford Motor Company as nonparty
defendants.
The defendants requested leave to file a second
amended answer, and on April 29, 2011, the court granted the
defendants’ request.
The second amended answer did not identify
the nonparty defendants.
The defendants state that the omission
of the nonparty defendants was due to an inadvertent scrivener’s
error, and on May 27, 2011, the defendants moved for leave to
file a third amended answer, re-naming Illinois Central School
Bus, LLC and Ford Motor Company as nonparty defendants.
Heath
objects to the defendants’ third motion for leave to amend their
answer, arguing that the motion is untimely and unfairly prejudicial.
Discussion
Federal Rule of Civil Procedure 15(a) provides that "a party
may amend the party's pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely
Foman v. Davis, 371 U.S. 178,
given when justice so requires."
182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).
This Circuit has
recognized that because pleadings merely serves to put the
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opposing side on notice, they should be freely amended as the
case develops, as long as amendments do not unfairly surprise or
prejudice the opposing party. Jackson v. Rockford Housing Author-
ity, 213 F.3d 389, 390 (7th Cir. 2000).
The decision to deny
leave to amend a pleading is an abuse of discretion "only if 'no
reasonable person could agree with the decision.'"
Winters v.
Fru-Con, Inc., 498 F.3d 734, 741 (7th Cir. 2007)(quoting Butts v.
Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004));
Ajayi v. Aramark Business Services, 336 F.3d 520, 530 (7th Cir.
2003).
Leave to amend properly may be denied for "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."
182, 83 S.Ct. at 230.
Foman, 371 U.S. at
A motion to amend is more likely to be
denied if it takes place at a relatively late stage in the
proceedings.
Aldridge v. Forest River, Inc., 635 F.3d 870, 875
(7th Cir. 2011); Winters, 498 F.3d at 741.
See also James v.
McCaw Cellular Communications, Inc., 988 F.2d 583 (5th Cir. 1993)
(holding that the district court did not abuse its discretion in
denying plaintiff’s motion to amend where motion filed almost 15
months after original complaint, ten months after joinder dead-
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line, five months after deadline for amendments, and three weeks
after defendant filed motion for summary judgment).
The moving
party bears the burden to show some valid reason for neglect and
delay in seeking to amended the pleading.
921.
Butts, 387 F.3d at
See also NL Industries, Inc. v. GHR Energy Corp., 940 F.2d
957 (5th Cir. 1991) (holding that the court did not abuse its
discretion in denying motion for leave to file second amended
complaint where plaintiff sought to amend its pleading two years
after it first brought defendant into litigation and after
defendant had requested summary judgment, but plaintiff provided
no good reason for not acting sooner).
Heath first objects that the defendants did not timely raise
the non-party defense.
A nonparty defense may be raised where
the defendant asserts that the claimant’s damage was caused in
full or in part by a nonparty.
Ind. Code §34-51-2-14.
"Just as
it may be considered 'unfair' to deprive the plaintiff of recovering the full amount of his or her damages due to the allocation
of fault to a nonparty, it would be 'unfair' to require the
defendant alone to bear the cost of the plaintiff's damages if he
or she was not solely responsible for the injury."
Bulldog
Battery Corporation v. Pica Investments, Inc., 736 N.E.2d 333,
338 (Ind. App. 2000).
A defendant must assert a nonparty defense
in his first answer if that nonparty defense is known prior to
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filing of the first answer.
Indiana Code §34-51-2-16;
Schul-
theis v. Franke, 658 N.E.2d 932, 936 (Ind. App. 1995), trans.
denied (1996).
If "actual knowledge" of the defense is gained
after the defendant has filed an answer, the defendant's motion
to add the nonparty defense must demonstrate "reasonable promptness."
Indiana Code §34-51-2-16.
If service of the complaint was made on the defendant more
than 150 days before the expiration of the limitation of action
regarding the nonparty, the nonparty defense must be plead no
later than 45 days before that expiration.
2-16.
Indiana Code §34-51-
The statute provides that the court "may alter these time
limitations or make other suitable time limitations in any manner
consistent with giving the defendant a reasonable opportunity to
discover the existence of a nonparty defense."
Indiana Code
§34-51-2-16. See also Schultheis, 658 N.E.2d at 936. The "reasonable promptness" requirement refers to the period of time between
service of the complaint on the defendant and the assertion of
the nonparty defense, not the time between learning of the
defense and asserting it. Custer v. Schumacher Racing Corp., 2007
WL 2902047, *2 (S.D. Ind. August 14, 2007) (citing Kelly v. Ben-
nett, 792 N.E.2d 584, 587 (Ind. App. 2003)).
The purpose of the
requirement to plead a nonparty defense with "reasonable promptness" would be "confounded if a defendant takes little action to
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discover such a defense until a substantial delay has occurred."
Kelly, 792 N.E.2d at 587.
Heath does not argue that the defendants' motion conflicts
with the statute of limitations.
Rather, Heath argues that the
nonparty defendants were not identified with reasonable promptness.
In considering this argument, the court must examine the
time from the initial complaint until the date the nonparties
were named, an approximately 11 month time span.
However, after
a series of extensions of time to file an answer, discovery did
not commence until October 22, 2010.
It is during the discovery
period that the court must expect the parties diligently to
research and develop their positions.
The defendants were prompt
in identifying the nonparties after discovery commenced and moved
to amend their answer within four months of beginning discovery.
This is the type of reasonable promptness the statute contemplates.
However, it cannot be overlooked that the defendants were
careless is preparing their second amended answer and inadvertently omitted the nonparty defendants.
The defendants recog-
nized this error and within 30 days moved to correct their answer
for a third time, to re-name the parties.
Heath was on notice
from the first amended complaint of the nonparty defense, and the
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defendants acted promptly, as the statute requires, to remedy
their error.
Furthermore, the court should grant leave to amend pleadings
upon a finding of good cause.
Excusable neglect, such as a
scrivener’s error, is permissible cause to warrant granting leave
to amend a pleading.
See Industrial Hard Chrome, Ltd. v. Hetran,
Inc., 64 F.Supp.2d 741, 747-48 (N.D. Ill. 1990) (granting leave
to amend complaint due to scrivener’s error).
Although the court
must weigh the movant’s explanation against contentions of prejudice or surprise, Heath has not done more than make boilerplate
objections of prejudice and has not shown the court how the 30
day delay between identifying the nonparty defendants would cause
substantial prejudice.
Heath argues that if leave was granted, he would be forced
to file a new complaint, naming Illinois Central School Bus and
Ford Motor Company as parties, that discovery would be extended
and would delay final disposition of the case, and that the
discovery already completed would be rendered fruitless.
Within
the time the defendants identified the nonparty defendants, Heath
did not take any initiative to amend the complaint and name the
nonparties as parties to the suit.
Because allowing the non-
parties would not change the nature of the suit, it is not
entirely clear why the discovery that already was completed would
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be irrelevant, or why discovery would need to be extended a
significant amount of time.
Discovery is currently open until
September 15, 2011, and no trial date has been set.
This would
allow all of the parties significant time to complete any discovery that has yet to be conducted.
Furthermore, Heath did not
object to the defendants’ initial motion to amend to add the nonparties, and he has not displayed how the 30 day lapse between
identifying the parties would cause the significant prejudice
that he now asserts.
Because the defendants acted promptly in first identifying
the nonparties and moving to correct their error, the court finds
that the inadvertent scrivener’s error is excusable negligence
and warrants leave to amend.
Beyond a boilerplate claim of
prejudice, Heath has not shown how the 30 day lapse between
identifying the nonparties would impose a significant hardship
upon him.
_______________
Based on the foregoing reasons, the Third Motion for Leave
to File Amended Answer and Affirmative Defenses [DE 40] filed by
the defendants on May 27, 2011, is GRANTED.
ENTERED this 28th day of June, 2011
s/ ANDREW P. RODOVICH
United States Magistrate Judge
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