PARKER v. ROCKIES EXPRESS PIPELINE LLC

Filing 139

ORDER - denying 84 Plaintiff's Motion to Strike. Sheehan may seek leave to amend its Answer to name all entities which may be subject to its chosen nonparty defenses through the close of discovery on November 10, 2012. *** SEE ORDER ***. Signed by Judge Sarah Evans Barker on 9/28/2012. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DANNY K. PARKER,

)
)
Plaintiff,
)
)
vs.
)
)
ROCKIES EXPRESS PIPELINE LLC et al.,)
)
Defendants.
)

1:11-cv-00139-SEB-DML

ORDER DENYING PLAINTIFF’S MOTION TO STRIKE
This cause is presently before the Court on Plaintiff’s Motion to Strike [Docket No.
84], filed on February 13, 2012. For the reasons detailed below in this entry, Plaintiff’s
Motion is DENIED.
Plaintiff, Danny Parker, has filed the instant lawsuit against Defendants Rockies
Express Pipeline LLC (“Rockies”) and Sheehan Pipe Line Construction Company
(“Sheehan”) to recover for breach of contract, negligence, and trespass. These claims
arise out of alleged damages from the construction of a natural gas pipeline across a portion
of property he owns in Martinsville, Indiana. The remaining Defendants (Alegion Inc.,
Brandenburg Drainage Inc., Pe Ben USA, Inc., and Shaw Pipeline Services Inc.) joined
this lawsuit on January 3, 2012, having been named in Mr. Parker’s Second Amended
Complaint [Docket No. 65], each allegedly having worked as subcontractors for either
Rockies or Sheehan. Mr. Parker asserts that these additional Defendants furnished
services pertaining to the construction, installation, and/or remediation of the natural gas

pipeline on his property.
Defendant Sheehan, an Oklahoma-based partnership, responded to Mr. Parker’s
Second Amended Complaint on January 24, 2012 [Docket No. 68], asserting numerous
affirmative defenses. Number 29 of these defenses states as follows:
[T]he damages and/or injuries alleged to have been incurred by the plaintiff
were caused in full or in part by non-parties, the Indiana Utilities Regulatory
Commission, the Federal Energy Regulation Commission (a/k/a FERC) and
any unknown and unidentified parties who may have been present during the
events alleged in the plaintiff’s Complaint, whom the defendant may identify
during the course of discovery.
Sheehan Answer at 18-19 (emphasis supplied). Mr. Parker has asked the Court to
strike the portion of this affirmative defense that includes “any unknown and
unidentified parties” on the grounds that Indiana law requires a defendant to
specifically name nonparties that he believes may have caused the plaintiff’s
damages. Sheehan rejoins that the defense is proper because the identities of all
potential nonparties remained unknown to Sheehan when it filed its Answer.
Further, Sheehan asserts that it reserves the right to postpone naming any nonparty
defendants until such entities are reasonably discoverable.
Under Indiana law, a nonparty defense may be raised when the defendant
contends that the plaintiff’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 . . . damages due to the allocation of fault
to a nonparty, it would be ‘unfair’ to require the defendant alone to bear the cost . . .
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if he or she was not solely responsible.” Bulldog Battery Corp. v. Pica Invs., Inc.,
736 N.E.2d 333, 338 (Ind. Ct. App. 2000). The defendant must raise any nonparty
defense in his answer, assuming that such defense is known prior to the time of
filing. Ind. Code § 34-51-2-16; Kelly v. Bennett, 792 N.E.2d 584, 586 (Ind. Ct.
App. 2003). However, if the defendant acquires “actual knowledge” of such a
defense after having filed the answer, he “may plead the defense with reasonable
promptness.” Ind. Code § 34-51-2-16.
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 must plead nonparty defenses no later than 45 days before such expiration
deadline. Ind. Code § 34-51-2-16. 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.”
Id.; see also Kelly, 792 N.E.2d at 586. “Reasonable promptness” refers to the
period of time between service of the complaint on the defendant and assertion of
the nonparty defense by the same. This court has previously determined that
“reasonable promptness” is not the time between learning of the defense and
asserting it. Custer v. Schumacher Racing Corp., No. 1:06-cv-1208-WTL-JDT,
2007 WL 2902047, at *2 (S.D. Ind. Aug. 14, 2007) (citing Kelly, 792 N.E.2d at
587). The purpose of the requirement to plead a nonparty defense with “reasonable
promptness” would be “confounded if a defendant takes little action to discover
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such a defense until a substantial delay has occurred.” Kelly, 792 N.E.2d at 587.
As the Indiana Supreme Court explained in Owens Corning Fiberglass Corp. v.
Cobb, 754 N.E.2d 905 (Ind. 2001):
To ensure fairness to the plaintiff, the burden of pleading and proving the
specific name of the nonparty is on the defendant. Therefore, a defendant
who intends to use a nonparty defense must specifically name the nonparty.
Additionally, [the] Indiana Code . . . requires that a defendant disclose the
identity of nonparty defendants within a certain time frame, thus giving the
plaintiff notice of any nonparty defendants that the defendant intends to add.
Owens Corning, 754 N.E.2d at 913 (citations omitted). This pleading format
allows a plaintiff the opportunity to add nonparties as party defendants. Id. The
deadline imposed on the defendant for naming any given nonparty defendant
“depends upon when the defendant receives notice of the availability of a certain
nonparty to add.” Id. According to Mr. Parker, both Owens Corning and Cornell
Harbison Excavating, Inc. v. May, 546 N.E.2d 1186 (Ind. 1989), “clearly dictate[]”
that Sheehan “cannot assert a nonparty defense as to an unnamed party.” Mr.
Parker alleges that Sheehan is precluded from raising such defenses unless he has
“actually discover[ed]” the defense with specificity and “actually knows and
identifies the nonparties.” Pl.’s Reply ¶¶ 4, 6. Bearing in mind that “[m]otions to
strike are generally disfavored,” see Heller Fin., Inc. v. Midwhey Powder Co., 883
F.2d 1286, 1294 (7th Cir. 1989), as well as the applicable law and foregoing facts,
we disagree.
To be sure, “where a motion to strike ‘removes unnecessary clutter from the
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case, [it] serve[s] to expedite, not delay.’ Therefore, when the pleading is
redundant or the statements are immaterial, the court has the power to strike the
offending parts.” Hardin v. Am. Elec. Power, 188 F.R.D. 509, 511 (S.D. Ind.
1999) (citing Heller, 883 F.2d at 1294; Fed. R. Civ. P. 12(f)). The instant lawsuit,
in our view, has not yet passed the “point of no return” in terms of docket clutter.
At this early stage in the litigation, we are not persuaded that Sheehan’s knowledge
is dispositive to our resolution of the instant motion. Rather, the appropriate
inquiry is whether the pleadings establish Sheehan’s efforts to discover such
knowledge. See Templin v. Fobes, 617 N.E.2d 541, 545 (Ind. 1993). The
chronology of this lawsuit gives the Court no reason to conclude that Sheehan has
neglected its due diligence responsibilities or otherwise failed to act with the
“reasonable promptness” contemplated by statute.
Examining the timetable as pled by the parties, as Sheehan observes, is not
an exercise of perfect certitude. Determining the precise moment at which Mr.
Parker’s negligence claim accrued is difficult at this juncture because the Second
Amended Complaint—although well-pled—contains few firm dates.
Nevertheless, we can discern that construction of the allegedly offending pipeline
ceased at some point in November of 2009. Second Am. Compl. ¶ 6 (deeming this
as the time when Defendants, either individually or collectively, left Mr. Parker’s
property). “Soon thereafter, [Mr. Parker]’s [p]roperty was severely flooded” and
remained in this condition for “a period of at least five months.” Id. ¶¶ 13, 15.
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Five months after November 2009—again, at the very latest—would provide an
April 30, 2010 “start date” for the running of the limitations period on Mr. Parker’s
negligence claim. A two-year statutory period would specify an expiration date of
April 30, 2012. Mr. Parker filed his most recent version of the Complaint against
Sheehan on January 3, 2012, which is not more than 150 days prior to the expiration
of this limitations period. Accordingly, pursuant to Indiana Code § 34-51-2-16,
Sheehan is not bound by an inflexible deadline so long as it can plead all nonparty
defenses with reasonable promptness.
Determining whether Sheehan has pled its defenses with reasonable
promptness implicates its conduct during discovery. “It is during the discovery
period that the court must expect the parties diligently to research and develop their
positions.” Heath v. Isenegger, No. 2:10-cv-175, 2011 WL 2580538, at *2 (N.D.
Ind. June 28, 2011). Here, due to the joinder and dismissal of various parties, the
discovery process has clearly been complicated. But what the Court finds most
useful in assessing Sheehan’s promptness is the fact that time yet remains for
Sheehan to discover the identities of nonparties. On September 17, 2012,
Magistrate Judge Lynch granted the parties’ joint motion to amend the Case
Management Plan and ordered “discovery relating to liability issues [to] be
completed by November 10, 2012.” Docket No. 136. Thus, we find it
inappropriate to curtail Sheehan’s properly-asserted reservation of the right to
amend its answer to add nonparties whose identities may be ascertained up to and
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including November 10, 2012. Failure to make such timely amendment may, of
course, result in a later determination that Sheehan has not acted with reasonable
promptness. Nonetheless, because this deadline has not expired, we will allow
Sheehan the full amount of time deemed appropriate for discovery by Magistrate
Judge Lynch.
For the reasons detailed above, Plaintiff’s Motion to Strike a portion of
Sheehan’s Affirmative Defense Number 29 is DENIED. Sheehan may seek leave
to amend its Answer to name all entities which may be subject to its chosen
nonparty defenses through the close of discovery on November 10, 2012. Any
nonparties added by Sheehan shall be specifically named, in accordance with
Indiana law.
IT IS SO ORDERED.

09/28/2012
Date: ________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Copies to:
James Eric Rochford
YASMIN L STUMP GROUP P.C.
[e-mail]
Patrick O’Shea Sabo
YASMIN L STUMP GROUP P.C.
[e-mail]
Yasmin L. Stump
YASMIN L STUMP GROUP P.C.
[e-mail]
Anthony Seaton Ridolfo, Jr.
HACKMAN HULETT & CRACRAFT LLP
[e-mail]
Joseph M. Hendel
HACKMAN HULETT & CRACRAFT LLP
[e-mail]
Bruce P. Clark
BRUCE P. CLARK & ASSOCIATES
[e-mail]
Jennifer E. Davis
BRUCE P. CLARK & ASSOCIATES
[e-mail]
Brooke Lynn Riffell
KOPKA PINKUS DOLIN & EADS LLC
[e-mail]
Edward J. Liptak
CARSON BOXBERGER
[e-mail]
Michael Brian Langford
SCOPELITIS GARVIN LIGHT & HANSON
[e-mail]
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Thomas C. Hays
LEWIS WAGNER LLP
[e-mail]
Valerie Lynn Hughs
LEWIS WAGNER LLP
[e-mail]

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