Samuelson v. ArcelorMittal USA LLC

Filing 144

OPINION AND ORDER: Court GRANTS 125 Motion to Strike Count II of Plaintiff's Complaint. This matter is DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Andrew P Rodovich on 6/15/2018. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
Estate of MICHAEL SAMUELSON,
)
by STEPHANIE SAMUELSON, Personal )
Representative,
)
)
Plaintiff,
)
)
v.
)
)
ARCELORMITTAL USA, LLC,
)
)
Defendant.
)

Case No. 2:13-cv-440

OPINION AND ORDER
This matter is before the court on the Motion to Strike Count II of Plaintiff’s Complaint
[DE 125] filed by the defendant, ArcelorMittal USA, LLC, on March 14, 2018. For the
following reasons, the motion is GRANTED.
Background
The plaintiff, Estate of Michael Samuelson, by Stephanie Samuelson, Personal
Representative, initiated this matter on November 15, 2013, in Lake County Superior Court. The
matter was removed to this court on November 29, 2013. The plaintiff has alleged that on
November 13, 2013, Michael Samuelson was killed while working at the ArcelorMittal steel mill
when he was struck by a falling steel panel. At the time of the accident, Samuelson was working
for Pangere Corporation, an independent contractor.
ArcelorMittal held a bid meeting for the “demolition of the Wall Plates on the Basic
Oxygen Furnace #2 in the Rubble Pit” (demolition project). The project was to replace the
protective steel plates that lined the concrete walls in the rubble pit. Pangere had the lowest bid
price and was assigned the work for the demolition project. The second amended complaint has

alleged that “the demolition project was not a construction project, or a new construction project,
but specifically demolition and replacement of the existing steel walls of the slag pit.” Scott
Fritz, a Pangere superintendent, and other Pangere employees had performed the same job safely
for ArcelorMittal ten times in the past.
On September 20, 2017, ArcelorMittal filed a Motion for Summary Judgment [DE 91].
On March 8, 2018, the district court granted the motion in all respects except for the question of
whether ArcelorMittal had a non-delegable duty to Samuelson because Pangere contracted for
work that was intrinsically dangerous. 1 The court found that the removal of the steel plates
potentially was intrinsically dangerous work and that this issue was best left for the jury.
However, on the other hand, the plaintiff had failed to establish that the removal of the plates
was demolition work.
The court held a telephonic status conference with the parties on March 8, 2018. The
parties advised the court that they consented to have Magistrate Judge Andrew P. Rodovich
preside over the trial of this case. This matter, upon full consent of the parties, was reassigned
for all purposes to Magistrate Judge Andrew P. Rodovich pursuant to 28 U.S.C. Section 636(c)
on March 9, 2018. The court set this matter for trial to begin on August 20, 2018.
ArcelorMittal has filed the motion to strike requesting that the court strike Count II of the
plaintiff’s second amended. Count II of the complaint has alleged that ArcelorMittal’s contract
with Pangere required the performance of intrinsically dangerous work. It further has alleged
that demolition work is intrinsically dangerous work. ArcelorMittal contends that the plaintiff
cannot proceed on Count II because the court has found that the work was not demolition. The

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District Court Judge Joseph Van Bokkelen ruled on the Motion for Summary Judgment [DE 91] on March
8, 2018. This matter was reassigned for all purposes pursuant to 28 U.S.C. Section 636(c) on March 9, 2018, to
Magistrate Judge Andrew P. Rodovich.

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plaintiff filed a response in opposition on April 18, 2018, and ArcelorMittal filed a reply on April
24, 2018. A hearing was held on May 22, 2018. The court indicated at the hearing that a ruling
would be issued by separate order.
Discussion
Federal Rule of Civil Procedure 12(f) states that “[t]he court may strike from a pleading
. . . any redundant, immaterial, impertinent, or scandalous matter.” 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 Fin., Inc. v. Midwhey Powder Co., Inc., 883
F.2d 1286, 1294 (7th Cir. 1989); Doe v. Brimfield Grade School, 552 F. Supp. 2d 816, 825
(C.D. Ill. 2008). The decision whether to strike a pleading is within the discretion of the court.
Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992).
In response to ArcelorMittal’s motion for summary judgment, the plaintiff maintained
that ArcelorMittal was liable because it had a non-delegable duty to protect Samuelson who was
involved in intrinsically dangerous work. The plaintiff presented additional arguments
including: ArcelorMittal retained control over the means and methods of Pangere’s work and
thus subjected itself to liability for Samuelson’s death; the contractual documents between
ArcelorMittal and Pangere imposed responsibility on ArcelorMittal for the safety of Pangere’s
workers; and ArcelorMittal failed to provide reasonably safe premises for Samuelson.
The court held that the contract between ArcelorMittal and Pangere did not make
ArcelorMittal responsible for Samuelson’s safety. Additionally, pursuant to §343 of the
Restatement of Torts, ArcelorMittal was not liable as the owner of the premises where the
accident occurred. Finally, the plaintiff had failed to establish that the work performed was
demolition. In light of these findings, the court granted the motion for summary judgment in all

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respects except for the question of whether ArcelorMittal had a non-delegable duty to Samuelson
because Pangere contracted for work that was intrinsically dangerous. The court determined that
there was sufficient evidence to create a genuine dispute of material of fact on whether the
removal of the steel plates was intrinsically dangerous work. Therefore, as discussed and agreed
to by the parties at the hearing held on May 22, 2018, counts I, III, IV, V, and VI of the second
amended complaint did not survive Judge Van Bokkelen’s Order, and therefore were dismissed.
The only count that remained was Count II.
The “law of the case” doctrine is a long-standing legal doctrine. It provides that courts
should not reopen issues that were decided in earlier stages of the same litigation. McMasters v.
U.S., 260 F.3d 814, 818 (7th Cir. 2001) (citing Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800, 815–16, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)). The practical implications of
the doctrine are to promote the finality and efficiency of the judicial process. See Christianson,
486 U.S. at 816, 108 S.Ct. 2166 (citing 1B J. Moore, J. Lucas, & T. Currier, Moore's Federal
Practice ¶ 0.404[1], p. 118 (1984)). Therefore, when an issue is once litigated and decided, that
should be the end of the matter. Analytical Engineering, Inc. v. Baldwin Filters, Inc., 425 F.3d
443, 454 (7th Cir. 2005).
ArcelorMittal has argued that the plaintiff cannot proceed on Count II. It contends that
the court’s March 8, 2018 ruling that the work was not demolition has precluded the plaintiff’s
ability to recover under Count II. Therefore, the issue presented before this court is whether
Count II of the plaintiff’s second amended complaint should be stricken in light of the court’s
finding on summary judgment that the work performed was not demolition. ArcelorMittal is not
attempting to re-litigate an issue that already has been decided. Therefore, the law of the case
does not preclude the relief requested.

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It is a “well-settled rule that a party is bound by what it states in its pleadings.” Help At
Home Inc. v. Medical Capital, L.L.C., 260 F.3d 748, 753 (7th Cir. 2001); Soo Line R.R. Co. v.
St. Louis Southwestern Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997). “Judicial admissions are
formal concessions in the pleadings, or stipulations by the party or its counsel, that are binding
upon the party making them.” Keller v. United States, 58 F.3d 1194, 1198 n. 8 (7th Cir. 1995).
The Statement of Facts in the second amended complaint describes the work assigned to
Pangere as demolition. Specifically, paragraph 7 of the Statement of Facts alleges, “The
demolition project was not a construction project, or a new construction project, but specifically
demolition and replacement of the existing steel walls of the slag pit.” Also, in paragraph 16 the
plaintiff provides the definition of demolition as defined by the Occupational Safety and Health
Administration (OSHA), 29 C.F.R. Part 1926, subpart T. Moreover, paragraphs 17 through 22
allege the hazards, specific requirements, and fatalities that are associated with demolition work.
The allegations contained in the Statement of Facts are centered on the plaintiff’s contention that
the project performed was demolition.
Count II alleges that ArcelorMittal’s contract with Pangere required the “performance of
intrinsically dangerous work” and that “demolition work is intrinsically dangerous work.”
Furthermore, in Count II the plaintiff alleges that notwithstanding its duty, ArcelorMittal, by and
through its agents, servants, and employees was then and there guilty of one or more of the
following careless and negligent act and/or omissions:
a. Failed to complete the required engineering survey, prior to the start of any
demolition work;
b. Failed to adhere to their own Handbook’s heightened requirements for demolition
projects performed at their facilities, due to hazards inherent in demolition
operations;

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c. Failed to complete the required engineered lift plan for all major lifts, which at a
minimum shall include crane capacity, cable size and attachment details;
d. Failed to require Pangere to employ a dedicated safety person who must conduct
continuous inspections to detect hazards from the inherently weakened structures;
e. Failed to comply with the contractual requirement that Pangere must contact
ArcelorMittal USA, LLC supervision from the hot work area to insure that no
abnormal or changed conditions exist;
f. Failed to enforce the contractual provision that required Pangere to obtain the
approval of the ArcelorMittal USA, LLC engineering group before burning holes
into or welding onto any structural or building member; and
g. Failed received the required Hot Work Approval Form prior to grinding, burning,
welding or any open flame cutting.
ArcelorMittal operates under its Contractor Safety, Health and Environment Handbook,
which includes policies, procedures, and general terms and conditions. The subparagraphs a
through g address demolition and the contractual requirements between ArcelorMittal and
Pangere. There is no dispute that subparagraphs 5a and 5b refer to demolition and 5c and 5d are
pulled directly from ArcelorMittal’s handbook. Although 5c and 5d do not explicitly state the
word demolition, the complaint has alleged that “Page 11, Section 7A.0 of the Handbook
outlines Mittal’s requirements for demolition projects performed at their facilities, which
includes a requirement in Section 7A.4 of an engineered lift plan for all major lifts: the
engineered lift plans shall include at a minimum crane capacity, cable size, and attachment
details.” Moreover, 5d also was pulled directly from Section 7A.0 of the Handbook, 7A.8, titled
Demolition. Therefore, in Count II paragraph 5 the plaintiff has used language that comes
directly from ArcelorMittal’s handbook under Section 7A.0, Demolition.
Additionally, the court finds that 5e through 5g refer to the contractual requirements
between ArcelorMittal and Pangere. The court in its Order on summary judgment indicated that
the plaintiff had overlooked provisions in the contract that mandated that the contractors control
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access to the job site, be responsible for all persons and work at the job site, and protect all
persons and property from injury, damage, or loss. The court held that the contract did not make
ArcelorMittal responsible for Samuelson’s safety. This holding eliminates subparagraphs 5e
through 5g.
A principal is not liable for the negligence of an independent contractor whom it
employed, unless one of the five exceptions applies: (1) where the contract requires the
performance of intrinsically dangerous work; (2) where the principal is by law or contract
charged with performing the specific duty; (3) where the act will create a nuisance; (4) where the
act to be performed will likely cause injury to others unless due precaution is taken; and (5)
where the act to be performed is illegal. Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d
584, 586 (Ind. 1995). The plaintiff has alleged in Count II that ArcelorMittal contracted with
Pangere to perform intrinsically dangerous work. However, the plaintiff is bound by the
allegations she made in the second amended complaint. It is clear that Count II directly
addresses that demolition work is intrinsically dangerous work. Yet, the court has ruled that the
work performed was not demolition. The complaint is devoid of any other factual allegations
that the work was intrinsically dangerous. Thus, the plaintiff has not presented any allegations
that even if taken as true would entitle the plaintiff to relief. The court hereby STRIKES Count
II of the plaintiff’s second amended complaint.
In the response in opposition to the motion to strike, the plaintiff has requested that if the
court was to grant the motion to strike, in the alternative, the plaintiff be granted leave to amend
the second amended complaint. First, the plaintiff has failed to file a separate motion to amend
the complaint. A motion to amend a complaint must be filed separately, rather than incorporated
into a response. See N.D. Ind. L.R. 7-1 (provides that motions must be filed separately). Also,

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motions to amend a pleading must include the original signed proposed amendment as an
attachment. N.D. Ind. L.R. 15-1. Despite the fact that the plaintiff’s request to amend
procedurally is improper the court will decide this issue on the merits.
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 that leave shall be
freely given when justice so requires. Because pleadings merely serve to put the 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. Rule 15(a); Jackson v. Rockford Housing
Authority, 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.
FruBCon, 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 may be denied at the district court's discretion 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. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230,
9 L. Ed. 2d 222 (1962).
The court finds that the plaintiff’s request to amend is untimely. This matter is set for
trial on August 20, 2018. It would be unduly prejudicial to allow an amendment this close to the
scheduled trial date. The plaintiff, from the beginning, has alleged that the work performed by
Pangere was demolition and that demolition work is intrinsically dangerous. Therefore, by
granting the plaintiff leave to amend the complaint, the plaintiff would be presenting a new

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factual basis that was not previously presented in the pleadings. It would prejudice
ArcelorMittal to have to re-litigate this matter on a new basis. The denial of a motion to amend
pleadings is proper if the discovery and dispositive deadlines have passed and the motion is filed
near the trial date. For example, in Alinsky v. United States, 415 F.3d 639, 648 (7th Cir. 2005),
the Seventh Circuit denied the plaintiffs’ motion for leave to amend when the “plaintiffs’ motion
came approximately three years after the start of the litigation and approximately eight months
after the plaintiff completed discovery.” Consistently, the Seventh Circuit has affirmed denials
of a motion for leave to amend where a plaintiff has sought leave to amend after the defendant
filed a successful motion for summary judgment. Sanders v. Venture Stores, Inc., 56 F.3d 771,
774 (7th Cir. 1995); see also Cleveland v. Porca Co., 38 F.3d 289, 297 (7th Cir. 1994) (district
court did not abuse its discretion in denying motion to amend “after discovery was completed
and after motions for summary judgment were fully briefed . . . This motion came late in the
day.”).
Also, the court finds that allowing the plaintiff to amend her complaint would be futile.
The court may deny leave because the amendment is futile. Bethany Pharmacal Company, Inc.
v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001). It would be improper for the court to deny
leave to amend if the proposed amendment is not clearly futile. See Wright & Miller, 6
Federal Practice & Procedure § 1487, at 637-642 (2d ed. 1990) ("If the proposed change
clearly is frivolous or advances a claim or defense that is legally insufficient on its face, the court
may deny leave to amend."). Futility generally is measured by whether the amendment would
survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Bethany
Pharmacal Company, Inc., 241 F.3d at 861; Range v. Brubaker, 2009 WL 3257627, at *3
(N.D. Ind. 2009).

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As a long-standing general rule, a principal is not liable for the negligence of an
independent contractor whom it employs. Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d
584, 586 (Ind. 1995). However, Indiana recognizes the non-delegable duty doctrine. Indiana has
recognized five exceptions to the general rule of non-liability, including where the contract
requires the performance of intrinsically dangerous work. Bagley, 658 N.E.2d at 586 (Ind.
1995); PSI Energy, Inc. v. Roberts, 829 N.E.2d 943, 950 (Ind. 2005), abrogated in part by
Helms v. Carmel High Sch. Vocational Bldg. Trades Corp., 854 N.E.2d 345 (Ind. 2006). The
Indiana Supreme Court in the Roberts opinion held that:
Employees of the contractor should have no claim against a principal for their
own or the contractor’s failure to use ordinary care in carrying out the contractor’s
assignment. Nor should a principal be liable to a contractor or its employees
simply by reason of employing the contractor to engage in inherently dangerous
activity. We hold therefore that in the absence of negligent selection of the
contractor, an employee of the contractor has no claim against the principal
based solely on the five exceptions to the general rule of non-liability for acts
of the contractor.
Roberts, 829 N.E.2d at 953 (emphasis added).
Therefore, in order to proceed on the amended complaint the plaintiff first must prove
that ArcelorMittal negligently hired Pangere. A principal owes no duty of care to an employee
of an independent contractor if there is no allegation the principal negligently selected its
independent contractor. Roberts, 829 N.E.2d at 953, 957; see also Helms v. Carmel High Sch.
Vocational Bldg. Trades Corp., 854 N.E.2d 345, 346 (Ind. 2006) (limiting the Roberts holding
to only the first and fourth exceptions to the general rule of non-liability). To prove negligent
hiring under Indiana law, a plaintiff must show, like any negligence claim, a duty, a breach of
that duty, and an injury proximately caused by the breach of that duty. Clark v. Artis, Inc., 890
N.E.2d 760, 763 (Ind. Ct. App. 2008). An essential component to proving negligent hiring is
whether it was reasonably foreseeable that Pangere would not perform its work safely. Clark,
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890 N.E.2d at 764. Indiana law is clear that “negligence cannot be inferred from the mere fact of
an accident.” Wright Corp. v. Quack, 526 N.E.2d 216, 218 (Ind. Ct. App. 1988). The Seventh
Circuit has found no negligent hiring when a contractor had a good reputation, and the principal
had no duty to quiz him concerning the details of his experience. Hixon v. Sherwin-Williams
Co., 671 F.2d 1005, 1010 (7th Cir. 1982).
The court should allow a plaintiff to amend the complaint if the plaintiff can put forth
some allegations that allow the proposed amendment to survive a motion to dismiss, even if
portions of the complaint are futile. Estate of Simpson v. Bartholomew County Jail, 2014 WL
5817319, at *3 (S.D. Ind. 2014). ArcelorMittal has indicated that Pangere had performed this
job approximately ten times in the past without any issues. (Deposition of Scott Fritz, p. 55).
Moreover, ArcelorMittal checked Pangere’s accident history through a system called
ISNetworld, which provide information on the contractor’s incident rates, lost time rates, fatality
rates, and incident severity. Pangere had received a passing grade. (Deposition of Sam Bird, pp.
56-57.)
There is no evidence in the record to support any factual allegations that Pangere
negligently was hired. Also, the plaintiff has not disclosed any witness who will offer lay or
expert testimony on the negligent hiring issue. Therefore, the allegations contained in the
amended complaint would be conclusory, speculative, and lack factual support. Thus, an
amendment would not cure the deficiencies. Moreover, if the plaintiff was to amend the
complaint, the court would be allowing her to circumvent the effects of the Order on the motion
for summary judgment. The court finds that the plaintiff’s request to amend this late in the
proceedings is untimely and would be futile, resulting in prejudice to ArcelorMittal.

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Based on the foregoing reasons, the Motion to Strike Count II of Plaintiff’s Complaint
[DE 125] is GRANTED. This matter is DISMISSED WITH PREJUDICE.
ENTERED this 15th day of June, 2018.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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