Nicholson et al v. Gary Railway Company et al

Filing 35

OPINION AND ORDER: The Motion by United States Steel Corporation for Leave to File a First Amended Answer to the Complaint DE 25 is GRANTED and the Motion by Gary Railway Company for Leave to File a First Amended Answer to the Complaint DE 26 is GRANTED. The defendants are DIRECTED to file their First Amended Answers as separate docket entries within seven days of this Order. Signed by Magistrate Judge Andrew P Rodovich on 7/12/19. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NICHOLAS NICHOLSON and
CHARITY NICHOLSON,
Plaintiffs,
v.
GARY RAILWAY COMPANY, a
corporation,
UNITED STATES STEEL
CORPORATION, a corporation,
Defendants.

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Case No. 2:18-cv-36

OPINION AND ORDER
This matter is before the court on the Motion by United States Steel Corporation for
Leave to File a First Amended Answer to the Complaint [DE 25] filed by the defendant, United
States Steel Corporation, on May 20, 2019, and the Motion by Gary Railway Company for Leave
to File a First Amended Answer to the Complaint [DE 26] filed by the defendant, Gary Railway
Company, on May 23, 2019. For the following reasons, the motions are GRANTED.
Background
The plaintiffs, Nicholas Nicholson and Charity Nicholson, initiated this matter against the
defendants, Gary Railway Company and United States Steel Corporation, on January 29, 2018.
Nicholas Nicholson sustained an injury on February 2, 2016, while working for Gary Railway.
At the time of Nicholson’s injury, he was working on property owned by U.S. Steel and
maintained by Gary Railway.
The defendants filed answers to the plaintiffs’ complaint on April 25, 2018. Both
defendants asserted affirmative defenses alleging that the injuries were caused by third parties

over which they had no control. The defendants’ generic nonparty defenses did not specifically
name a nonparty. Therefore, the defendants have requested leave to amend their answers and
affirmative defenses to name TMS International, LLC in their nonparty defense.
The defendants have indicated that TMS leased the property adjacent to the tracks where
Nicholson was working and was responsible for maintaining, including grading and controlling
dust, thereon. TMS’ failure to exercise due care in so doing could have adversely affected the
condition of the walkway Nicholson was working on. The plaintiffs objected to the defendants’
request for leave to amend their answers on June 4, 2019, arguing that the defendants have failed
to demonstrate good cause for seeking to amend after the court’s deadline. The plaintiffs also
argued that the amendment does not satisfy Federal Rule of Civil Procedure 15 standards
because it is futile and unfairly prejudicial. The defendants filed a reply on June 17, 2019.
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 that leave shall be
freely given when justice so requires. Because pleadings merely serve to put the opposing side
on notice, they should be amended freely 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.
FruCon, 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).
Rule 15(a)(2) says that courts should “freely give leave” to amend. However, a different

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standard provided by Federal Rule of Civil Procedure 16(b)(4) applies once the scheduled
deadline passes. See Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995). “To amend a
pleading after the expiration of the trial court’s Scheduling Order deadline to amend pleadings,
the moving party must show ‘good cause’” to modify the schedule. Trustmark Ins. Co. v.
General & Cologne Life Re of Am., 424 F.3d 542, 553 (7th Cir. 2005) (citing Federal Rule of
Civil Procedure 16(b)). In order to demonstrate good cause, the defendants must show that
despite their diligence they could not have met the earlier deadline. See Tschantz, 160 F.R.D. at
571.
The plaintiffs have argued that the defendants have not demonstrated good cause to
amend their answers and affirmative defenses after the deadline. On May 23, 2018, the court set
July 24, 2018, as the last date for the defendants to seek leave to amend the pleadings. The
defendants’ request comes approximately ten months after the deadline. Additionally, the land
where Nicholson was injured was owned by U.S. Steel and maintained by Gary Railway. Thus,
the plaintiffs have argued that both defendants had access to the location where Nicholson was
injured, and therefore could have discovered the alleged actions of TMS before the court’s
deadline expired.
The defendants claim that they raised the nonparty defense as soon as counsel and U.S.
Steel supervisory personnel realized that a nonparty defense was available while complying with
discovery. Moreover, the defendants contend that the amendment will not prejudice the
plaintiffs. The defendants assert that the plaintiffs have not responded to discovery and have not
appeared for nor noticed the deposition of any of the defendants’ personnel. Therefore, at the
time the instant motion was filed, discovery was in its infancy and barely had begun.
Accordingly, the court finds that the defendants have shown good cause to modify the

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schedule. The defendants represented that they acted promptly when they realized that a
nonparty defense was available. Moreover, the discovery deadline was extended to October 25,
2019. Since discovery has not concluded, allowing the defendants to amend their answers and
affirmative defenses will not prejudice the plaintiffs or delay this action.
The plaintiffs also have argued that, even if the defendants demonstrated good cause, the
requested amendment does not meet Rule 15’s requirements. The plaintiffs contend that the
requested amendment is futile because the defendants were ultimately responsible for the
condition of the premises where Nicholson was injured. However, the plaintiffs are free to
advance any arguments against any attribution of fault to TMS. The plaintiffs also claim that
they will be unfairly prejudiced since the statute of limitations against TMS has expired. The
instant matter was filed on January 29, 2018, approximately four days before the two-year statute
of limitations was set to expire on the personal injury claim. Therefore, the timing of the
defendants’ nonparty defense does not negatively affect the plaintiffs’ ability to bring a claim
against TMS because it was time-barred before the defendants’ original answers were due.
Based on the foregoing reasons, the Motion by United States Steel Corporation for Leave
to File a First Amended Answer to the Complaint [DE 25] is GRANTED, and the Motion by
Gary Railway Company for Leave to File a First Amended Answer to the Complaint [DE 26] is
GRANTED. The defendants are DIRECTED to file their First Amended Answers as separate
docket entries within seven days of this Order.
ENTERED this 12th day of July, 2019.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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