THOMAS et al v. STANLEY BLACK & DECKER INC. et al

Filing 70

ENTRY granting 65 Joint Motion to Dismiss - Defendant Black & Decker is hereby DISMISSED WITH PREJUDICE from this case. The Court thus grants the alternative requested by Defendant Rhodius - to amend its Answer to name Black & Decker as a nonparty. The Clerk is hereby DIRECTED to docket Exhibit A - Amended answer (dkt. no. 66-1) as Defendant's Rhodius' Amended Answer. Signed by Judge William T. Lawrence on 1/27/2014. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEFFREY THOMAS, et al.,
Plaintiffs,
vs.
BLACK & DECKER (U.S.), INC., et al.,
Defendants.

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) CAUSE NO. 1:11-cv-1365-WTL-DML
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ENTRY ON MOTION TO DISMISS
This cause is before the Court on a joint motion to voluntarily dismiss, with prejudice,
Defendant Black & Decker (U.S.), Inc. (“Black & Decker”) filed by the Plaintiffs, Jeffery and
Paula Thomas, and Black & Decker (dkt. no. 65). Defendant-Intervenor Rhodius
Schleifwerkzeuge GmbH & Co. KG (“Rhodius”) filed a response in opposition to the motion,
requesting that Black & Decker not be dismissed (dkt. no. 66). In the alternative, Rhodius
requests this Court to grant it leave to file an amended answer naming Black & Decker as a
nonparty. The Court, being duly advised, rules as follows.
I. STANDARD
The Plaintiffs and Black & Decker request, pursuant to Federal Rule of Civil Procedure
41(a)(2), that the claims against Defendant Black & Decker be dismissed, with prejudice. Rule
41 provides that “an action may be dismissed at the plaintiff’s request only by court order, on
terms that the court considers proper” once a defendant has filed an answer. Fed. R. Civ. P.
41(a)(2). The grant or denial of a Rule 41(a)(2) motion, as well as the conditions imposed
therein, is left to the Court’s sound discretion. See Mother and Father v. Cassidy, 338 F.3d 704,
709 (7th Cir. 2003).

II. BACKGROUND
On or about May 1, 2009, Plaintiff Jeffrey Thomas, a plumber, purchased a .045” metal
cutting wheel from a Lowe’s Home Centers, Inc. (“Lowe’s”) Indianapolis retail store. On
September 12, 2009, Jeffrey was using the metal cutting wheel for a plumbing job when the
wheel exploded, causing severe and permanent injuries to his eye and brain.
Jeffrey and his wife, Paula Thomas, filed a lawsuit in Marion County Superior Court on
September 8, 2011, naming Black & Decker, DeWalt Industrial Tool Company,1 and Lowe’s as
Defendants. The Defendants properly removed the case to this court on October 11, 2011,
pursuant to 28 U.S.C. § 1332.
During the course of discovery, the Defendants informed the Plaintiffs that Rhodius was
the manufacturer of the cutting wheel. Black & Decker also notified Rhodius of the pending
lawsuit. Therefore, on October 29, 2012, Defendant Rhodius filed a motion to intervene
pursuant to Rule 24 (dkt. no. 39). This motion was granted by this Court (dkt. no. 46).
On November 16, 2012, Defendant Lowe’s was dismissed, with prejudice, pursuant to a
stipulation by the parties (dkt. no. 43). This left Defendants Black & Decker and Rhodius as the
only remaining Defendants in this matter.
Turning now to the current motion before the Court, on December 3, 2013, Defendant
Black & Decker and the Plaintiffs filed a joint motion to voluntarily dismiss, with prejudice,
Defendant Black & Decker from this case (dkt. no. 65). Rhodius filed a response in opposition
(dkt. no. 65).

1

The Plaintiffs later amended their complaint (dkt. no. 17) to properly sue the correct
Defendants, noting that DeWalt Industrial Tool Company was not a separate corporate entity, but
rather, a trade name.
2

III. DISCUSSION
Rhodius objects to the dismissal of Black & Decker stating that it will be prejudiced if
Black & Decker is dismissed. It argues that because Black & Decker sold and distributed the
allegedly-defective cutting wheel, its liability is still at issue in the case. If Black & Decker is
dismissed, therefore, Rhodius argues it will be left to defend the action alone. In the alternative,
if the Court grants the dismissal, Rhodius requests leave pursuant to Rule 15(a)(2)2 to amend its
answer to name Black & Decker as a nonparty.3
In viewing the two options, it appears that the prejudice that would result from dismissing
Black & Decker—“depriving [Rhodius] of the opportunity to attribute all or part of the fault to
others”—is remedied by granting Rhodius leave to add Black & Decker as a nonparty. Bowles v.
Tatom, 546 N.E.2d 1188, 1190 (Ind. 1989). “Under Indiana’s comparative fault statute, a named
defendant may assert a ‘nonparty’ defense, seeking to attribute fault to a nonparty rather than to
the defendant.” Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 911 (Ind. 2001).
Rhodius seeks to add Black & Decker as a nonparty due to its potential liability for placing the
allegedly-defective cutting wheel into the stream of commerce. See Pls.’ Amended Complaint at
¶ 7 (“The cutting wheel designed, manufactured, and put into the stream of commerce by
Defendant Black & Decker (U.S.) Inc. was in a defective condition . . .”).
Indiana law allows this remedy so long as a timely objection is made to the dismissal and
a timely request is made to retain the dismissed party as a nonparty. See Bloemker v. Detroit
Diesel Corp., 687 N.E.2d 358, 359-60 (Ind. 1997) (“In view of the timely objections and
requests to retain PTI as a nonparty, we find that Detroit Diesel and North Manchester have
2

Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.”
3
Rhodius submitted as Exhibit A to its Response its proposed Amended Answer naming
Black & Decker as a nonparty.
3

preserved their right to assert a nonparty defense as to PTI.”); see also Rausch v. Reinhold, 716
N.E.2d 993, 1001 (Ind. Ct. App. 1999) (“[B]oth Bowles and Bloemker support the conclusion
that a defendant must do something prior to a party’s dismissal in order to preserve his nonparty
defense with respect to that party.”). Clearly, in this case, Rhodius has done just that in objecting
to the dismissal, and, in the alternative, requesting to add Black & Decker as a nonparty.4
The Court believes that this is the best course of action. Accordingly, the joint motion to
dismiss (dkt. no 65) is GRANTED. Defendant Black & Decker is hereby DISMISSED WITH
PREJUDICE from this case. The Court thus grants the alternative requested by Defendant
Rhodius—to amend its Answer to name Black & Decker as a nonparty. The Clerk is hereby
DIRECTED to docket Exhibit A – Amended answer (dkt. no. 66-1) as Defendant’s
Rhodius’ Amended Answer.
SO ORDERED: 01/27/2014

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication
4

The Court notes that the timing provision found in Indiana Code section 34-51-2-16,
requiring a defendant to plead a nonparty defense with reasonable promptness after it gains
actual knowledge, is also complied with in this instance. See Owens Corning Fiberglass Corp. v.
Cobb, 754 N.E.2d 905, 914-15 (Ind. 2001) (“Because the former party defendants that Owens
Corning sought to add as nonparties could only have been added as nonparties after they were
dismissed as parties, we hold that for purposes of the statute, Owens Corning acquired actual
knowledge of a nonparty affirmative defense relating to a particular entity only when it received
notice that the entity had been dismissed from the action. To hold otherwise would be
tantamount either to requiring Owens Corning to do something impossible—assert a nonparty
affirmative defense with respect to a named defendant—or to preclude Owens Corning from
asserting a nonparty affirmative defense at all with respect to a former named defendant. We
find no support in the statute or its underlying purposes for either of these alternatives.”).

4