KLINE et al v. GEMINI TRANSPORT, LLC et al

Filing 49

ORDER on Defendants' Motion to Amend Answers: The defendants' attempt to name nonparties was not timely under section 16 of Indiana's Comparative Fault Act. FedEx's Emergency Motion for Leave to File Amended Answer to Plaintiffs' Complaint and Name Additional Non-Parties (Dkt. 43) is DENIED. Because Gemini joined in that motion (Dkt. 44), it is also DENIED. See Order for additional information. Signed by Magistrate Judge Debra McVicker Lynch on 3/1/2017. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MATTHEW KLINE, et al.

Plaintiffs,
vs.
GEMINI TRANSPORT, LLC,
AMARILDO ZERE,
FEDEX GROUND PACKAGE SYSTEM,
INCORPORATED,
DELBERT E. LALLATHON, JR.,
Defendants.

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No. 1:17-cv-00353-TWP-DML

Order on Defendants’ Motion to Amend Answers
The plaintiffs are three members of the Kline family, who allege they were
injured in a multi-vehicle accident on Interstate 69 in Delaware County, Indiana, on
February 15, 2015. On August 31, 2016, they filed this action against Gemini
Transport, LLC and its driver Amarildo Zere (when collectively, “Gemini”) and
FedEx Ground Package System, Inc. and its driver Delbert Lallathon (when
collectively, “FedEx”). The Klines allege that Mr. Lallathon and Mr. Zere failed to
maintain control of their respective commercial trucks, struck stopped traffic in
front of them, and then struck one another, causing Mr. Zere’s truck to strike the
Klines’ vehicle and force it off the road. Complaint, Dkt. 1.
Gemini filed its answer to the complaint on September 27, 2016 (Dkt. 7), and
among other things, asserted an affirmative defense that there were “superseding

and intervening conduct, negligence, and acts of others, including the Plaintiffs and
other unknown parties, which was the proximate cause of the accident.” Dkt. 9, at
p. 18. When FedEx answered the complaint on September 30, 2016, it asserted an
identical affirmative defense. Dkt. 13 at p. 9. It further asserted that the Klines
“have failed to name other motorists in this action who may be wholly or partially at
fault.” Id. at p. 11.
On February 3, 2017, FedEx filed an “Emergency Motion for Leave to File
Amended Answer to Plaintiffs’ Complaint and Name Additional Non-Parties,” Dkt.
43, and Gemini joined in that motion five days later. Dkt. 44. The motion requests
leave to amend to name thirty-two individual nonparties to whom fault may be
apportioned under Indiana’s Comparative Fault Act, Ind. Code ch. 34-51-2. The
Klines oppose the motion on the ground that the defendants have not timely
identified these nonparties under the Act.
A description of these thirty-two proposed nonparties is pertinent to the
analysis. One of them, William Hall, was—according to the crash report for the
accident at issue here (“subject crash report”)—the driver of a truck that had come
to a stop in front of Mr. Zere and Mr. Lallathon. The other thirty-one individuals
are listed drivers from reports on five other crashes (“other crash reports”) that the
defendants say occurred within a mile and near the time of the accident involving
the Klines, FedEx, Gemini, and Mr. Hall. The Klines contend, without dispute from
the defendants, that none of the vehicles of these thirty-one individuals identified in
the other crash reports made any contact with any vehicle identified in the subject

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crash report. And none of the drivers listed in the other crash reports is identified
in the subject crash report.
Analysis
Under Indiana’s Comparative Fault Act, the jury must assess the percentage
of fault of each party and “nonparty” that caused or contributed to the plaintiff’s
injury or damages, and a defendant is responsible for damages only to the extent of
the percentage of fault attributed to it. See Ind. Code §§ 34-51-2-8 and 34-51-2-11.
See Owens-Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 913 (Ind. 2001)
(overarching objective of the Comparative Fault Act is proportional allocation of
fault). “Nonparty” is a term of art under the statute, and is a person a defendant
identifies in an affirmative defense of its answer as one who—though not named by
the plaintiff—caused the plaintiff’s damages in full or in part. Ind. Code § 34-51-214.
Section 16 of the Act imposes time limits for raising a nonparty defense. Ind.
Code § 34-51-2-16. It states that a nonparty defense “known” by a defendant when
it files its first answer “shall be pleaded as part of the first answer.” If a defendant
“gains actual knowledge” of a nonparty defense after filing its first answer, it must
plead the defense with “reasonable promptness.” In cases where the defendant is
served with the complaint and summons more than 150 days before the statute of
limitations would expire on a claim by the plaintiff against the nonparty, then the
nonparty defense must be pleaded no later than 45 days before the limitations
period expires. These time limits may be altered by the court where doing so is

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consistent with giving the defendant a reasonable opportunity to discover the
existence of a nonparty defense and giving the plaintiff a reasonable opportunity to
add the nonparty as a defendant before his claim against the nonparty expires. See
id.
The Klines filed their complaint more than 150 days before the statute of
limitations expired, so the Act provides that the nonparty defense had to be pled no
later than 45 days before the expiration of the limitations period. FedEx filed its
motion only twelve days before the limitations period expired, and Gemini joined
the motion only seven days before. Those facts lead the Klines to argue that the
defendants have sought leave “in contravention” of the Act. Though the language of
the statute is arguably ambiguous on this point, the court will assume for purposes
of this motion that it can “alter these time limits” after their expiration to authorize
the naming of nonparties beyond the 45-day period when certain standards are
met.1
The Act requires the court to make certain inquiries in determining the
timeliness of a defendant’s assertion of a nonparty defense. First, if the nonparty
defense was known at the time of the defendant’s first answer, it must be pled at
that point. The court accepts for purposes of this motion that, except for Mr. Hall,
FedEx and Gemini did not know of these nonparties when they filed their original

It is also reasonable to infer, though, that the Indiana Legislature’s specific
identification of these timeframes creates a presumption or expectation, and that a
party who wants the court to alter them bears the burden of demonstrating good
cause for that alteration.
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answers to the complaint.2 The Klines do not contend otherwise. The pivotal
questions therefore are whether FedEx and Gemini acted with “reasonable
promptness” in identifying the nonparties, and whether granting them leave to
amend is consistent with giving them a reasonable opportunity to discover the
nonparty defenses and with giving the Klines a reasonable opportunity to sue the
nonparties before the limitations period expires. See Ind. Code § 34-51-2-16(1). For
a number of reasons, the court finds that the defendants did not act reasonably
promptly, that they had a reasonable opportunity to identify the nonparties much
sooner, and that the timing of their identification of the nonparties did not give the
Klines a reasonable opportunity to sue these nonparties before the limitations
period expired.
FedEx’s3 contention that it acted with reasonable promptness centers on its
early occupation with a number of other litigation tasks. It explains that it didn’t
focus sooner on potential nonparties primarily because it was busy briefing the
motion to dismiss or transfer in the Eastern District of Michigan, where this case
was first filed. See Dkt. 48 at pp. 7-8. It maintains that it acted with reasonable
promptness because it filed its “Emergency Motion” within three days of receiving
the other crash reports that identified drivers involved in other accidents within a

The court assumes the defendants knew of Mr. Hall from the beginning,
because he is identified in the subject crash report.
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The court refers to FedEx’s arguments because Gemini has not separately
briefed the issues but has simply joined in FedEx’s motion.
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mile and near the same time of the accident at issue in this case. But this
argument fails, both legally and factually.
The three days between the defendants’ “discovery” of the nonparty defenses
and the filing of their “Emergency Motion” is not the relevant period for the court to
consider. A defendant’s diligence in identifying nonparties is measured from the
time it is served with the complaint. Kelly v. Bennett, 792 N.E.2d 584, 587 (Ind. Ct.
App. 2003). From that point forward, a defendant is expected to investigate and
take steps, through discovery or otherwise, to determine the existence of a nonparty
defense. Id. Thus, the defendant must act “reasonably promptly” from the date of
service to raise the defense, and it is not enough to act “reasonably promptly” from
the date of discovering the defense to bring a motion to add a nonparty defense. Id.
See also Parker v. Rockies Express Pipeline, LLC, 2012 WL 4481976 at *2 (S.D. Ind.
Sept. 28, 2012) (citing Kelly, 792 N.E.2d at 587, and Custer v. Schumacher Racing
Corp., 2007 WL 2902047 at *2 (S.D. Ind. Aug. 14, 2007)) (“reasonable promptness”
is measured within the time period between service of complaint and asserting the
nonparty defense, and not the time period between learning of the defense and
asserting it). FedEx and Gemini seek to assert the defense about five months after
they were served with the complaint. (See Dkts. 3, 4, and 6, indicating service on
September 6, 2016.)
FedEx’s assertions that it acted with reasonable promptness during this
period do not withstand scrutiny. First, it was obvious from the outset that other
vehicles were involved in the crash at issue. The police report on this particular

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crash—which the defendants presumably had or could have easily obtained
immediately—identifies seven vehicles. They further knew from that report (and
from their drivers, who are parties here) that adverse weather conditions arguably
contributed to a pile-up. And the report expressly includes the statement of Mr.
Hall (a proposed nonparty) 4 that he had stopped because traffic was stopped as a
result of an accident in front of him. See Dkt. 43-2 at p. 3. So the defendants clearly
had reason to suspect that other crashes may have occurred, and they could have
easily obtained any crash reports for the same time and locale much sooner than
they did. (FedEx points out that these are public documents.)
The only reason FedEx offers for not making this inquiry sooner is that it was
focused on other matters in this litigation—specifically, the motion to dismiss or
transfer filed in the Eastern District of Michigan, compliance with this court’s order
requiring a supplemental jurisdictional statement, and the transfer of this case
from the New Albany Division to the Indianapolis Division of this court. It further
blames the Klines for necessitating early motions practice relating to what the
Eastern District of Michigan ultimately determined was an improper venue. This
explanation is not persuasive. Gemini—not FedEx—filed the motion to dismiss or
transfer. The entirety of FedEx’s briefing on this issue was a one-sentence
“concurrence” in the motion. See Dkt. 21. This court’s order requiring a
supplemental jurisdictional statement was directed to the Klines, and the Klines

The defendants have not offered any explanation for why they didn’t seek to
add Mr. Hall as a nonparty sooner, because identifying him didn’t require obtaining
police reports from other accidents.
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filed it. And the transfer of this case from the New Albany Division to the
Indianapolis Division was a simple administrative matter addressed at the initial
pretrial conference (at which FedEx failed to appear) and accomplished by a sua
sponte order of the court. The sum of the time and effort devoted to these activities
is not an adequate excuse for FedEx, in its own words, “not dealing with the
substantive issues in this case.”5
The expiration of an applicable limitations period is a critical event that quite
frequently occurs very early in a case, and that fact, combined with the dictates of
Indiana’s Comparative Fault Act, requires defendants to give the nonparty issue
early and serious attention.6 Though it is, as FedEx points out, still early in this
case, it is not early for limitations purposes.
That brings the court to the final element of the balancing the Act directs:
giving the Klines a reasonable opportunity to sue the thirty-two individuals the
defendants want to name as nonparties. FedEx claims that the Klines are not

As earlier noted, the court has assumed that the Act authorizes the court to
alter the 45-day deadline for naming nonparties after it has expired. FedEx’s
argument that it was engaged with procedural issues that kept it from substantive
tasks—including identification of potential nonparties—suggests an interesting
inquiry. What if the defendants, citing their occupation with procedural matters,
had moved before the expiration of the 45-day deadline for an extension of that
deadline to only twelve days before the limitations period ran? The court would
have found that manifestly unreasonable.
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It would also not be an acceptable explanation that the application of
Indiana’s Act was a surprise to anyone. Gemini (joined by FedEx) argued as early
as September 27, 2016, that this case should be transferred to Indiana, which
follows lex loci delicti choice of law principles in negligence cases.
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prejudiced by amendment—that its filing gave them eleven days to sue these
individuals. The prejudice to the Klines was self-inflicted, FedEx argues, because
they did not try to sue them and because they took the entire fourteen-day period
the local rules afforded to respond to the defendants’ motion. FedEx further
dismisses the Klines’ lament that they faced a Hobson’s Choice, responding that the
Klines could have both sought leave to amend their complaint and filed an earlier
opposition to amendment of the defendants’ answers.
The latter point is technically true,7 but it misses the larger issue: under all
the circumstances, including the defendants’ failure to make an early review of “the
substantive issues in this case,” would granting the defendants leave to amend be
consistent with giving the Klines a reasonable opportunity to sue these thirty-two
individuals within—at most—eleven days? The court finds that it would not.
Again, no party at this point disputes that these thirty-two individuals were not
mentioned in law enforcement’s report on the crash at issue in this case. No one
disputes that the vehicles of these individuals did not come into contact with any
vehicle listed in the crash report. The defendants, to this point, have not
specifically articulated any theory of liability against them. Federal Rule of Civil
Procedure 11 provides that by filing any pleading or other paper the filing attorney
certifies, among other things, that he or she has made a reasonable inquiry under

The court does agree that it would have been wiser for the Klines to have
filed their opposition brief sooner, but it would not have changed the court’s
conclusions.
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the circumstances and that the factual contentions in that filing have evidentiary
support or are likely to have evidentiary support after reasonable investigation or
discovery. It is unrealistic to expect the Klines’ counsel to have made that sort of
assessment and certification in the little time they had.
And apart from the investigation mandated by Rule 11, the Klines also would
have had to prepare and file a motion for leave to amend that included a discussion
of the factors a court should consider when allowing amendment, and in particular
an amendment that would destroy subject matter jurisdiction, as it would have
here. 8 Then the court would have had to rule on that motion. The defendants’
argument that eleven days gave the Klines a reasonable opportunity to add these
thirty-two new parties is not convincing.
Conclusion
The defendants’ attempt to name nonparties was not timely under section 16
of Indiana’s Comparative Fault Act. FedEx’s Emergency Motion for Leave to File
Amended Answer to Plaintiffs’ Complaint and Name Additional Non-Parties (Dkt.
43) is DENIED. Because Gemini joined in that motion (Dkt. 44), it is also DENIED.

SO ORDERED.
____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

3/1/17
Date: __________________

The court does, however, reject the Klines’ assertion of extra complications in
case management as a basis for denying leave.
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Distribution:
All ECF-registered counsel of record by email through the court’s ECF system

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