England v. Cox et al

Filing 49

MEMORANDUM AND ORDER denying 40 Defendants' Motion to Amend Comparative Fault Designation. Signed by Magistrate Judge Karen M. Humphreys on 7/9/2012. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHANE ENGLAND,
Plaintiff,
v.
TOBY RAY COX and PPC
TRANSPORTATION COMPANY,
Defendants,

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Case No. 11-2362-JTM

MEMORANDUM AND ORDER

This matter is before the court on defendants’ motion to amend their comparative fault
designation to add George Gibby as a person whose fault should be compared with
defendants. (Doc. 40). Plaintiff opposes the motion and for the reasons set forth below, the
motion shall be DENIED.

Background
This is a personal injury action based on a train accident at a grade crossing. Highly
summarized, plaintiff alleges that he was injured while riding in a locomotive engine that
struck a commercial truck driven by Toby Cox. Plaintiff contends that the rear axle of Cox’s
semi-trailer was on the railroad tracks at the time of the accident and that his negligence

caused the accident.

Motion to Amend Comparative Fault Designation
The scheduling order established December 15, 2011 as the deadline for any party
asserting comparative fault to “identify any persons or entities whose fault is to be
compared.” (Doc. 10, p. 8). Defendants filed their designation on October 13, 2011 and
listed: (1) the Union Pacific Railroad, (2) the Kansas Department of Transportation, and (3)
the City of Neodesha as entities whose negligence or “fault” should be considered in
apportioning fault in this case.1 On May 5, 2012, plaintiff moved for partial summary
judgment and requested a finding that Mr. Cox and PPC Transportation “were solely liable
for plaintiff’s injuries and damages” from the collision. After reviewing plaintiff’s motion
and reply brief, defendants moved on June 19, 2012 to amend their comparative fault
designation to add George Gibby as a person whose fault should be compared.2
Plaintiff objects to the belated addition of George Gibby as a person whose fault
should be compared, arguing that the designation is untimely and unfair. The court agrees.
As noted above, the scheduling order established a December 15, 2011 deadline for

1

The “designation” also included “any engineers hired, retained, or employed by
those entities which designed the crossing and crossing guards at the location where the
accident occurred.”
2

Mr. Cox was stopped behind a vehicle driven by Mr. Gibby when the accident
occurred. Mr. Gibby was apparently waiting for another train on a second track to pass
before proceeding.
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identifying the persons or entities whose fault should be compared in this case. Fed. R. Civ.
P. 16(b)(4) provides that the scheduling order “may be modified only for good cause and
with the court’s consent.” (emphasis added). Defendants make no proffer of “good cause”
and instead argue that the addition of Gibby is permissible because they “reserved” the right
to add persons or entities in their original October 2011 designation of persons or entities.
Defendants’ suggestion that they are not bound by a deadline in the scheduling order
because they “reserved” the right to amend their response is a spurious argument and
summarily rejected. Moreover, Mr. Gibby was identified in the original police report and
Rule 26(a)(1) disclosures and he is not a “recently discovered” person. Defendants have not
shown good cause to add Mr. Gibby at this late date by merely “reserving” a right to
designate additional persons whose fault might be compared in this case.
Defendants also argue that they should be allowed to add Mr. Gibby after reading
plaintiff’s reply brief related to the motion for summary judgment. While not entirely clear,
defendants appear to argue that plaintiff contends in his summary judgment motion that there
is no defect in the design of the railroad crossing. Defendants assert that if there is no defect
in the railroad crossing design, then Mr. Gibby must have been negligent for stopping to wait
at the second railroad track and his fault should therefore be compared.3 This tortured
reasoning does not show good cause for the untimely designation of Mr. Gibby as a person
3

Defendants devote the majority of their brief to arguments that the negligent
design of the railroad crossing contributed to the accident. Such arguments have no
relevance to their request to belatedly designate another person whose “fault” should be
compared.
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whose fault should be compared. As noted above, Mr. Gibby, his statements to police, and
the location of his vehicle were known to defendants before the December 15, 2011 deadline.
Arguments in plaintiff’s reply brief are not “newly discovered evidence” or “good cause” for
allowing defendants to belatedly designate a new person whose fault should be compared.
Accordingly, defendants’ motion shall be DENIED.
IT IS THEREFORE ORDERED that defendants’ motion to amend their
comparative designation (Doc. 40) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 9th day of July 2012.
S/ Karen M. Humphreys
KAREN M. HUMPHREYS
United States Magistrate Judge

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