DeWilde v. Orgill, Inc.

Filing 25

ORDER granting 20 Motion to Amend/Correct. Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LORI DeWILDE,
Case No. 11-13370
Plaintiff,
Honorable Nancy G. Edmunds
v.
ORGILL, INC.,
Defendant.
/

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT [20]

This matter comes before the Court on Plaintiff’s motion for leave to file a second
amended complaint. Leave to amend under Fed. R. Civ. P. 15(a) is freely granted where
justice so requires.

For the reasons stated below, Plaintiff’s motion is GRANTED.

Defendant is to immediately file a Notice withdrawing its pending motion for summary
judgment that addresses the claims asserted Plaintiff’s first amended complaint, and may
file a new motion for summary judgment addressing the negligence claims asserted in
Plaintiff’s second amended complaint.
I.

Background
Plaintiff filed this diversity action on August 3, 2011. Her first amended complaint was

filed shortly thereafter (August 10, 2011). In it, she alleges that she was seriously injured
while unpacking a pallet of products shipped to her employer, LumberJack Building Center,
in Marine City, Michigan, by Defendant Orgill, Inc., that is in the business of selling
wholesale hardware products as well as packaging, shipping and distributing them. Among

the products shipped is rebar, defined by Plaintiff as pieces of steel used for construction
purposes that are typically six feet long and a half inch thick. (Pl.’s Resp. to Def.’s Mot. for
Summ. Judg. at 3.)
Plaintiff asserts two claims. In Count I, she alleges that:
Defendant had a duty (1) to “package, stretch wrap, inspect, distribute, monitor and
sell products” that were reasonably safe for their intended use, foreseeable misuses and
to eliminate reasonable and foreseeable risk of harm;” that had reasonably feasible safety
devices and mechanisms “and would prevent bystanders and/or those required to open
their product from unreasonable risks of harm;” and (2) to warn and instruct “those who
purchased their products . . . of the dangers” of unpackaging by placing “clear and
conspicuous warning signs on the product itself.” (Pl.’s 1st Am. Compl. ¶ 7.)
Defendant breached the duty owed to her by negligently failing to properly package
and/or place its products on a pallet, by failing to stack its products in a horizontal as
opposed to vertical position, and by failing to warn. (Id. at ¶ 8.) As a result of Defendant’s
breach, Plaintiff was seriously injured. (Id. at ¶¶ 9-10.)
In Count II, Plaintiff alleges that:
Defendant expressly and impliedly warranted that its product was not defective and
was of merchantable quality and reasonably fit for the purposes, uses and misuses, either
anticipated or reasonably foreseeable. Specifically, that “the product was packaged,
stretch wrapped, inspected, maintained, sold and/or distributed so as not to subject
persons, such as Plaintiff, who are required to open said packaging, to unreasonable risks
of harm and injury. As a result of Defendant’s breach of these warranties, Plaintiff was
seriously injured. (Id. at ¶¶ 6-11.)
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Discovery closed on January 31, 2012, and this Court set a disposition motion cut-off
date of March 1, 2012.
On February 29, 2012, Defendant filed a motion for summary judgment arguing that
Plaintiff’s claims, asserted under multiple theories of product liability, should be dismissed.
On March 14, 2012, before responding to Defendant’s pending motion, Plaintiff filed
the motion at issue here.
In her motion seeking leave to file a second amended complaint, Plaintiff argues that
she needs to amend her complaint to abandon any product liability claims and allege solely
an ordinary negligence claim so as to conform to the evidence disclosed in the March 8,
2012 depositions of Defendant employees, Bates Crabb and Jeff Hawkins. (Pl.’s Mot. at
2, ¶¶ 4-5.)
Plaintiff’s proposed second amended complaint no longer describes Defendant as a
seller of products. Rather, Defendant is now described as a packager/shipper/distributor
of others’ products to Plaintiff’s employer. The proposed amended complaint alleges only
one Count that Plaintiff contends is based on a theory of ordinary negligence – that (1)
Defendant owed her a duty of reasonable care in loading merchandise on a pallet, that it
was foreseeable that shipping and receiving clerks like her would unload the package like
she did; (2) that Defendant breached its duty when it loaded an assortment of goods,
including rebar stacked vertically on the outer edges, and then covered it in stretch wrap,
and failed to warn or instruct about dangers of unpacking; and (3) that Plaintiff was
seriously injured and suffered damages as a result of Defendant’s breach.
Defendant opposes Plaintiff’s motion. It argues that (1) Plaintiff’s amendment is futile
because, even as restated, Plaintiff’s claim is properly construed as a product liability claim;
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and (2) it would be unfair to allow Plaintiff, at this late date, to avoid the strong statutory
defenses for product liability available under Michigan law and raised in its motion for
summary judgment and to force Defendant to once again incur the expense of filing
another motion for summary judgment that addresses Plaintiff’s restatement of her claim
as one of ordinary negligence.
II.

Analysis
A. Rule 15(a) Standard
Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend is freely granted

where justice so requires. However, a motion to amend a Complaint should be denied if the
amendment is brought in bad faith or for dilatory purposes, results in undue delay or
prejudice to the opposing party, or would be futile. See Foman v. Davis, 371 U.S. 178
(1962). Prejudice may result from delay, but “[d]elay by itself is not sufficient reason to deny
a motion to amend. Notice and substantial prejudice to the opposing party are critical
factors in determining whether an amendment should be granted.” Brooks v. Celeste, 39
F.3d 125, 130 (6th Cir. 1994) (citing Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th
Cir. 1989) (quoting Hagerman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973))).
B. Leave to Amend Is Granted
First, contrary to Defendant’s arguments here, futility is determined by examining
whether Plaintiff’s claim could survive a motion to dismiss, not a motion for summary
judgment. See Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th
Cir. 2010) (observing that “[a] proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.”) (internal quotation marks and citation
omitted).

Applying the relevant Rule 12(b)(6) standard, Plaintiff’s second amended
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complaint states a claim of negligence. Second, as stated above, “[d]elay by itself is not
sufficient reason to deny a motion to amend.” Brooks, 39 F.3d at 130. Finally, as to undue
prejudice, Defendant’s arguments are not convincing. Even though the Court is requiring
Defendant to withdraw its pending motion for summary judgment, most of the work done
in connection with that earlier motion, including its discussion and application of statutory
defenses available under Michigan’s product liability law, can be reasserted in its new
motion.
III.

Conclusion
For the above-stated reasons, Plaintiff’s motion for leave to file a second amended

complaint is GRANTED. Defendant is to immediately file a Notice withdrawing its pending
motion for summary judgment that addresses the claims asserted Plaintiff’s first amended
complaint and may file a new motion for summary judgment addressing the negligence
claims asserted in Plaintiff’s second amended complaint

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: May 10, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record
on May 10, 2012, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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