Whiting v. Menard, Inc. et al

Filing 26

OPINION AND ORDER: The Court DENIES as moot the Plaintiff's Motion for Leave to File First Amended Complaint 20 ; GRANTS the Plaintiff's Motin for Leave to File First Amended Complaint 21 ; GRANTS the Defendant's Motion for Leave to Name a Nonparty Defendant 22 . Signed by Chief Judge Theresa L Springmann on 5/6/2019. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROGER WHITING,
Plaintiff,
v.

CAUSE NO.: 2:17-CV-86-TLS

MENARD, INC. and THYSSENKRUPP
ELEVATOR CORPORATION,
Defendants.
OPINION AND ORDER
This matter is before the Court on the Plaintiff’s, Roger Whiting, Motion for Leave to
File First Amended Complaint [ECF No. 21], brought pursuant to Federal Rule of Civil
Procedure 15(a)(2), and the Defendant’s, Menard, Inc. (Menard), Objection to Partial Dismissal
or, in the Alternative, Motion for Leave to Amend Answer to Name Non-Party [ECF No. 22].

BACKGROUND
The Plaintiff filed a Complaint in Lake Superior Court against Defendants Menard, Inc.
and Thyssenkrupp Elevator Corporation on January 12, 2017 [ECF No. 2], and the case was
subsequently removed to the United States District Court for the Northern District of Indiana
[ECF No. 1]. The Plaintiff alleges that the Defendants negligently maintained and operated an
escalator, which caused the Plaintiff’s injuries. (Pl.’s Compl. ¶ 5.) On May 18, 2018, the Plaintiff
filed his Motion for Leave to File First Amended Complaint. The Plaintiff states that the
completion of discovery has indicated that Thyssenkrupp Elevator Corporation (Thyssenkrupp)
was not at fault for the Plaintiff’s injuries and seeks to remove Thyssenkrupp as a Defendant
pursuant to Federal Rule of Civil Procedure 15(a)(2). (Pl.’s Mot. for Leave to File First Am.

Compl. ¶¶ 3, 6.) In response, Defendant Menard requests that the Court deny the Plaintiff’s
Motion or, in the alternative, grant the Defendant leave to name Thyssenkrupp as a nonparty
defendant in accordance with the Indiana Comparative Fault Act. (Def.’s Obj. ¶ 3.)

STANDARD OF REVIEW
Federal Rule of Civil Procedure 15(a) provides that, after the time has expired to file an
amendment as a matter of course, a party “may amend its pleading only with the opposing
party’s written consent or the court’s leave” and that “[t]he court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). A court should not deny leave to file an amended
complaint in the absence of any apparent reasons “such as 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 (1962); see also Bausch v. Stryker
Corp., 630 F.3d 546, 562 (7th Cir. 2010). The decision whether to grant or deny a motion to
amend lies within the sound discretion of the district court. See Campbell v. Ingersoll Milling
Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990).
The Indiana Comparative Fault Act, Indiana Code § 34-51-2, governs a defendant’s right
to amend its answer to assert a nonparty defense. Under the Act, “a defendant may assert as a
defense that the damages of the claimant were caused in full or in part by a nonparty.” Ind. Code
§ 34-51-2-14. The defendant must specifically name the nonparty within a certain time frame,
but the Court may alter the time limitations in any manner that is consistent with “giving the
defendant a reasonable opportunity to discover the existence of a nonparty defense.” Ind. Code §
34-51-2-16(1). The Court may deny a motion to amend to add a nonparty defense on the grounds
of futility if the requirements of the Comparative Fault Act are not met. Cota v. Pilkington N.

Am., Inc., No. 1:12-CV-365, 2013 WL 1703571, at *2 (N.D. Ind. Apr. 19, 2013) (citations
omitted).

ANALYSIS
Plaintiff’s Motion to Amend Complaint
The Plaintiff seeks to remove Defendant Thyssenkrupp as a defendant due to the
Plaintiff’s discovery that Thyssenkrupp was not at fault for the Plaintiff’s injuries. Although
Defendant Menard captioned its motion as “Objection to Partial Dismissal or, in the Alternative,
Motion for Leave to Amend Answer to Name Non-Party,” Defendant Menard does not list any
specific objections to the proposed amendment. Defendant Menard does not assert any undue
delay, bad faith, or any other sort of undue prejudice. Rather, the thrust of Defendant Menard’s
motion is focused on preserving its right to a nonparty defense. As leave to amend is freely given
when justice so requires and Defendant Menard has not articulated objections to the Plaintiff’s
Motion to Amend, the Court will GRANT the Plaintiff’s Motion for Leave to File First Amended
Complaint

Defendant’s Motion to Name Nonparty Defendant
The Defendant requests leave to name Thyssenkrupp as a nonparty defendant. Pursuant
to Indiana Code § 34-51-2-15, the defendant bears the burden of pleading and proving the
specific name of the nonparty. Cota, 2013 WL 1703571, at *2. Indiana Code § 34-51-2-16
requires that, if service of the complaint was made on the defendant more than 150 days prior to
the expiration of the statutory limitations period for the nonparty, the defendant plead nonparty
defenses no later than 45 days before such expiration deadline. Parker v. Rockies Express
Pipeline LLC, No. 1:11-cv-139, 2012 WL 4481976, at *2 (S.D. Ind. Sept. 28, 2012) (citing Ind.

Code § 34-51-2-16). The Court may waive such deadlines to provide a defendant with a
reasonable opportunity to discover such a defense.
As the Plaintiff only recently requested leave to amend his Complaint to remove
Thyssenkrupp as a defendant, Defendant Menard could not have previously asserted a nonparty
defense. As such, the Court will GRANT Defendant Menard leave to name a nonparty defendant
in its amended answer. The Court notes that Defendant Menard must meet the requirements of
the Comparative Fault Act in its amended answer.

CONCLUSION
Based on the foregoing, the Court:
1.

DENIES as moot the Plaintiff’s Motion for Leave to File First Amended Complaint [ECF
No. 20].

2.

GRANTS the Plaintiff’s Motion for Leave to File First Amended Complaint [ECF No.
21];

3.

GRANTS the Defendant’s Motion for Leave to Name a Nonparty Defendant [ECF No.
22]; and

SO ORDERED on May 6, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT