FOLSOM v. MENARD, INC. et al
Filing
373
ORDER denying 238 Motion for Leave to Amend Answer. Signed by Judge Richard L. Young on 4/29/2011. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
MICHAEL R. FOLSOM,
)
)
Plaintiff,
)
)
v.
)
)
MENARD, INC., a Wisconsin Corporation;
)
CDI, INC., an Indiana Corporation; LAMAR
)
CONSTRUCTION COMPANY, a Michigan
)
Corporation; NORTH AMERICAN
)
ROOFING SERVICES, INC., a Delaware
)
Corporation; FABCON, INC., a Minnesota
)
Corporation; FABCON, LLC, a Limited Liability
)
Company of Delaware; CROWN CONSTRUCTION, )
INC., an Indiana Corporation; and GARY’S
)
PLUMBING SERVICE, INC.,
)
)
Defendants.
)
3:09-cv-94-RLY-WGH
ORDER DENYING MOTION FOR
LEAVE TO AMEND ANSWER IN ORDER TO STATE
NON-PARTY DEFENSE AGAINST PATRIOT ENGINEERING
On January 31, 2011, Defendant, CDI, Inc., filed a Motion for Leave to Amend
Answer in Order to State Non-Party Defense Against Patriot Engineering. The court,
having considered the motion, all filed documents and relevant law, and being duly
advised, now DENIES the motion.
In its Motion for Leave to Amend Answer, CDI, Inc. (“CDI”) asserted certain facts
which are not disputed and include the following:
1.
Based on injuries he sustained as the result of a partial collapse of a
Menard’s Department Store on September 26, 2007, the Plaintiff
filed suit against CDI and others on July 15, 2009.
2.
CDI filed its original Answer to the Plaintiff’s Complaint on
September 14, 2009. At such time, CDI did not list Patriot as a nonparty because CDI was unaware that Patriot may have been partially
or entirely at fault with respect to the Plaintiff’s damages.
3.
With respect to the construction of the Menards which collapsed,
Patriot was hired directly by Menards to inspect welds and bolts.
4.
On December 16, 2010, the Plaintiff filed his Amended Complaint
for Damages, which raised additional allegations against Menards.
5.
CDI filed its Answer to the Plaintiff’s Amended Complaint on
January 12, 2011. Pursuant to Federal Rule of Civil Procedure
15(a)(1)(A), a party may amend its pleading once as a matter of
course within 21 days after serving such pleading if the amendment
is made before trial. In the present case, because 21 days have not
passed since CDI filed its Answer to the Plaintiff’s Amended
Complaint on January 12, 2011, CDI should be permitted to file an
Amended Answer as a matter of course, without seeking leave of the
Court.
6.
However, to the extent that leave of the Court may be required in
order to add Patriot as a non-party Defendant, CDI asserts that such
leave should be granted in accordance with Indiana Code 34-51-216.
7.
Pursuant to I.C. 34-51-2-16, if a Defendant is served with a
complaint and summons more than 150 days before the expiration of
the limitation of action applicable to the claimant’s claim against the
non-party, the Defendant must plead any non-party defense not later
than 45 days before the expiration of that limitation of action. In the
present case, the Plaintiff filed his Complaint against CDI on July
15, 2009, only 73 days prior to the expiration of the two-year statute
of limitations on September 26, 2009. As such, pursuant to the
statute, CDI was only required to plead a nonparty defense with
reasonable promptness.
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8.
On or about January 6, 2011, structural engineer Mark Valenzuela
completed an affidavit at the request of the Plaintiff, including the
following conclusion: “It is my conclusion that had the strap plates
been welded to the embedded plates as shown in Detail 4 of the
Plaintiff’s Deposition Exhibit 11A at both the North and South
Columns, the structural components of the building west of the joist
girder (G5) would not have collapsed into the interior of the building
striking Michael Folsom as reported in his deposition.
9.
This affidavit was then filed by the Plaintiff on January 7, 2011, as
part of the Plaintiff’s Response in Opposition to co-defendant
Lamar’s Motion for Summary Judgment.
(Motion for Leave to Amend Answer at 1-3).
CDI contends that it was only upon reviewing the summary judgment pleadings
and the affidavit of Dr. Valenzuela that CDI gained actual knowledge that Patriot may
have been at fault in causing the Plaintiff’s damages. CDI then requested leave to amend
its Answer.
The Plaintiff objects and points to the fact that Patriot’s potential liability was
disclosed as early as in the deposition of James Carlson taken July 15, 2010. Other
information, including the deposition of Wayne Linderman, establishes that by October
13, 2010, certain alleged failures to weld plates were a significant omission in the
construction process. Also on October 13, 2010, a Patriot representative testified as to
Patriot’s presence and participation in the construction process.
This complicated construction case has involved at least seven defendants (not
including Patriot). Extensive discovery and – significantly – almost all of the trial
preparation necessary for an originally scheduled trial on April 18, 2011, have been
completed. The court has had to reschedule the trial because of its inability to reach all in
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limine motions filed, but the court did not intend to reopen the discovery process; rather,
the new trial date was issued to allow the court to address pending pretrial issues. In this
case, there is critical delay in raising this issue on January 31, 2011, for the first time prior
to an April 18 trial date. The court concludes that to amend at this time would cause
significant additional discovery after the parties have become trial ready and that the
amendment in this case falls within those that have been unduly delayed and would cause
substantial prejudice to all parties. This is because all parties would have to retake many
depositions addressing potential fault for Patriot and significantly amend motions in
limine.
Because in this case the amendment was raised at a late date, and because
significant expense would occur, the Motion for Leave to Amend Answer (Docket # 238)
is DENIED.
SO ORDERED this 29th day of April 2011.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana
Electronic Copies to:
Gerald F. Allega
STATHAM ALLEGA JESSEN & RUDISILL
saj@statham-aj.com
Bradley A. Bough
WRIGHT SHAGLEY & LOWERY
bbough@wslfirm.com
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Jake A. Cilek
THE HUNT LAW GROUP LLC
jcilek@hunt-lawgroup.com
Kathleen A. Clark
DAWSON & CLARK, P.C.
kclark@dawson-clark.com
Aimee Rivera Cole
SMITH FISHER MAAS & HOWARD
arivera@smithfisher.com
Donald H. Dawson Jr
DAWSON & CLARK, P.C.
ddawson@dawson-clark.com
James L. Fischer Jr.
BOEHL STOPHER & GRAVES, LLP
jfischer@bsg-in.com
Danny E. Glass
FINE & HATFIELD
deg@fine-hatfield.com
Jeffrey W. Henning
RUDOLPH FINE PORTER & JOHNSON, LLP
jwh@rfpj.com
Brian J. Hunt
THE HUNT LAW GROUP LLC
bhunt@hunt-lawgroup.com
John J. Kreighbaum
FINE & HATFIELD
jjk@fine-hatfield.com
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Marcum Jarvis Lloyd
SMITH FISHER MAAS & HOWARD P.C.
mlloyd@smithfisher.com
Rebecca Jean Maas
SMITH FISHER MAAS & HOWARD
rmaas@smithfisher.com
Curtis Paul Moutardier
BOEHL STOPHER & GRAVES LLP
cmoutardier@bsg-in.com
William Scott Trench
THE HUNT LAW GROUP LLC
strench@hunt-lawgroup.com
Scott Lee Tyler
Waters, Tyler, Scott, Hofmann & Doane, LLC
styler@wtshdlaw.com
Robert L. Wright
WRIGHT SHAGLEY & LOWERY, P.C.
rwright@wslfirm.com
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