Nichols et al v. Home Depot USA Inc et al
Filing
30
OPINION AND ORDER granting 24 Motion to Strike Improper Nonparty Defense of Defendant Arctic Snow and Ice Control Inc. The court STRIKES from Arctic Snows Fourth Affirmative Defense, that the plaintiffs' injuries and damages may have been caused in full or part by nonparties. Signed by Magistrate Judge Andrew P Rodovich on 10/6/11. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENNY NICHOLS, GEORGIA NICHOLS, )
)
Plaintiffs
)
)
v.
)
)
HOME DEPOT USA, INC.; HD
)
DEVELOPMENT OF MARYLAND, INC;
)
ARCTIC SNOW AND ICE CONTROL,
)
INC.,
)
)
Defendants
)
CIVIL NO. 2:10 cv 252
OPINION AND ORDER
This matter is before the court on the Motion to Strike
Improper Nonparty Defense of Defendant Arctic Snow and Ice
Control, Inc. [DE 24] filed by the plaintiffs, Denny and Georgia
Nichols, on June 20, 2011.
For the following reasons, the motion
is GRANTED.
Background
The plaintiff, Denny Nichols, slipped and fell on ice at the
Home Depot located in Hobart, Indiana.
At the time of this
incident, Arctic Snow and Ice Control, Inc. was responsible for
the snow and ice removal.
Nichols filed a complaint against Home
Depot and Arctic Snow, alleging that the defendants were negligent in maintaining the premises.
Arctic Snow filed its amended
answer on May 19, 2011. Arctic Snow's fourth affirmative defense
states in pertinent part:
1.
The plaintiff’s claimed injuries and
damages, if any, may have been proximately caused in full or in part by nonparties and/or co-defendants.
2.
The defendant asserts that present or
future co-defendants in this action were
at fault, and that such fault proximately caused plaintiff’s injuries and
damages, if any.
3.
If any present or future defendants
herein are later dismissed, defendant
now objects to the dismissal and states
that such persons or corporations are
"non parties" whose fault must be considered by the trier of fact in rendering any verdict.
The plaintiffs filed a motion to strike the nonparty defense
on June 20, 2011, arguing that Arctic Snow's failure to identify
the nonparties is fatal to its defense.
Discussion
Federal Rule of Civil Procedure 12(f) states that "the court
may strike from a pleading any . . . redundant, immaterial,
impertinent, or scandalous matter."
The court may either act on
its own accord or on a motion by either party made within 21 days
of being served with the pleading.
Rule 12(f)(1)-(2).
Because
the trial court may strike material in a pleading on its own
accord, it is also within the court’s discretion to consider an
untimely motion.
Williams v. Jader Fuel Co., Inc., 944 F.2d
1388, 1400 (7th Cir. 1991).
2
Motions to strike generally are disfavored, although they
may be granted if they remove unnecessary clutter from a case and
expedite matters, rather than delay them. Heller Financial, Inc.
v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989);
Shirley v. Jed Capital, LLC, 2010 WL 2721855, *5 (N.D. Ill. July
8, 2010); Doe v. Brimfield Grade School, 552 F.Supp.2d 816, 825
(C.D. Ill. 2008).
The decision whether to strike material is
within the discretion of the court. Talbot v. Robert Matthews
Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992).
The plaintiffs filed their motion to strike 31 days after
Arctic Snow submitted its amended answer, so it was untimely.
However, the plaintiffs’ motion points to legal deficiencies in
Arctic Snow’s affirmative defenses.
In order to reduce the
claims for trial and eliminate legally improper issues, the court
elects to consider the sufficiency of Arctic Snow’s non-party
defense.
Although disfavored, motions to strike may be useful when
the parties disagree over the legal ramifications of uncontroverted facts, as may arise when a party pleads a legally insufficient affirmative defense.
Farmers & Merchants State Bank v.
Norfolk & Western Ry. Co., 673 F.Supp. 946, 947 (N.D. Ind. 1987).
In a diversity case, the court must assess the legal sufficiency
3
of an affirmative defense according to the governing state law.
Farmers, 673 F.Supp. at 947.
The Indiana Comparative Fault Statute, Indiana Code §34-512-14, provides that nonparties who were involved in the incident
are to be considered when allocating fault with certain exceptions.
A nonparty is a "person who caused or contributed to
cause the alleged injury, death, or damage to property but who
has not been joined in the action as a defendant." Ind. Code
§34-6-2-88; Farmers, 673 F.Supp. at 948.
The nonparty must be
subject to liability, and the defendant raising the nonparty
defense must identify the nonparty with specificity in his answer
since he bears the burden of proving the nonparty’s liability.
Cornell Harbison Excavating, Inc. v. May, 546 N.E.2d 1186, 1187
(Ind. 1989) ("[T]he plain meaning and clear language of section 6
unmistakably require the disclosure of 'the name of the nonparty,' not merely a generic identification.").
The trier of
fact may not consider the liability of an unnamed nonparty.
Cornell, 546 N.E.2d at 1187; Kveton v. Siade, 562 N.E.2d 461, 463
(Ind. App. 1990).
Arctic Snow reasons that the nonparty defense is necessary
in the event that a co-defendant is dismissed.
Arctic Snow,
relying on Bowles v. Tatom, 546 N.E.2d 1188 (Ind. 1989), argues
that if a co-defendant is dismissed during the pendency of
4
litigation it has a right to object and name the former defendant
as a nonparty. In Bowles, a municipality and adjacent landowners
originally were joined as defendants with Tatom but were ultimately dismissed at the close of the plaintiff’s case.
Tatom
remained as the sole defendant, but he continued to assert that
the adjacent landowners and municipality were partially at fault
Bowles, 546 N.E.2d at 1189.
for the injury.
The court deter-
mined that the adjacent landowners and municipality could not be
held liable under the terms of the Comparative Fault Act because
Tatom did not assert a nonparty defense or object to the dismissal of his co-defendants.
Bowles, 546 N.E.2d at 1190 ("Be-
cause the statutory burden of proof is upon the defendant with
respect to the nonparty defense, failure to timely present such
an objection waives the defense as to the dismissed parties.").
The court construed his failure to object to his co-defendants’
dismissal as a waiver of the nonparty defense.
N.E.2d at 1190.
Bowles, 546
Arctic Snow now argues that it is necessary to
include the nonparty defense in the event that its co-defendants
are dismissed during the course of litigation.
Arctic Snow’s reliance on Bowles is misplaced.
The court
faulted the defendant in Bowles for failing to object to his codefendants’ dismissal and considered this failure a waiver of the
nonparty defense.
Arctic Snow may escape sole liability if the
5
co-defendants are dismissed by objecting to their dismissal or by
amending its answer to name the dismissed co-defendants as nonparties.
The court cannot permit Arctic Snow’s generic allega-
tion that nonparties share liability when Indiana law clearly
demands that nonparties must be named specifically.
See Cornell,
546 N.E.2d at 1187 (explaining that a defendant must name the
nonparty in its answer).
Arctic Snow’s answer does not identify
the nonparties it alleges must share liability with its co-defendants.
Rather, it generically states that its co-defendants and
nonparties share liability.
This is the type of generic pleading
that the Indiana courts sought to prevent by demanding that nonparty defenses specifically identify the nonparty.
Absent
greater specificity, Arctic Snow has not adequately pled its
third-party defense.
_______________
Based on the foregoing reasons, the Motion to Strike Improper Nonparty Defense of Defendant Arctic Snow and Ice Control,
Inc. [DE 24] filed by the plaintiffs, Denny and Georgia Nichols,
on June 20, 2011, is GRANTED.
The court STRIKES from Arctic
Snow’s Fourth Affirmative Defense, that the plaintiffs' injuries
and damages may have been caused in full or part by nonparties.
6
ENTERED this 6th day of October, 2011
s/ ANDREW P. RODOVICH
United States Magistrate Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?