Harris v. Yum! Brands, Inc. et al

Filing 88

OPINION and ORDER Granting in Part and Denying in Part Defendants' 67 MOTION for Summary Judgment, Granting 66 Motion for Leave to File Notice of Non-Party Fault and Denying 80 MOTION to Amend/Correct 62 Amended Complaint, 1 Complaint. Signed by District Judge Gershwin A. Drain. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHERYL HARRIS,
Plaintiff,
Case No.: 17-cv-10239
Honorable Gershwin A. Drain

v.

YUM! BRANDS, INC., et al.,
Defendants.
___________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [#67],
GRANTING MOTION FOR LEAVE TO FILE NOTICE OF NON-PARTY
FAULT[#66] AND DENYING MOTION FOR LEAVE TO AMEND [#80]
I. INTRODUCTION
Presently before the Court is the Defendants, Yum! Brands, Inc. (“Yum!
Brands”), Pizza Hut of America, LLC, Redberry Resto Brands Int’l, Inc.
(“Redberry-Delaware”) and Redberry Resto Brands, Inc.’s (“Redberry-Canada”)
Motion for Summary Judgment, filed on October 12, 2018.1 Plaintiff Cheryl
Harris filed a Response in Opposition on October 28, 2018. Defendants filed a
Reply in support of their Motion for Summary Judgment on November 2, 2018.

Plaintiff agrees that Redberry-Canada should be dismissed from this action.
Thus, the Court will DISMISS Count IV.
1

Also, before the Court is the Defendants’ Motion for Leave to File Notice of
Non-Party Fault, filed on October 11, 2018.

Plaintiff filed a Response in

Opposition on October 18, 2018, and Defendants filed a Reply in support on
October 26, 2018.
Lastly, Plaintiff filed a Motion for Leave to Amend the Complaint on
October 28, 2018, which is also before the Court. Defendants filed a Response in
Opposition on November 5, 2018, and Plaintiff filed a Reply in support on
November 9, 2018.
A hearing on these matters was held on November 13, 2018. For the reasons
that follow, the Court will grant in part and deny in part Defendants’ Motion for
Summary Judgment. The Court will dismiss Defendants Pizza Hut of America,
Redberry-Canada and Yum! Brands, Inc. and Counts IV, V, VI, VII, VIII and IX
from this action. Additionally, the Court will dismiss Counts XI and XII as to
Yum! Brands and Redberry-Delaware. The Court will also grant Defendants’
Motion for Leave to File Notice of Non-Party Fault and will deny Plaintiff’s
Motion for Leave to Amend.
II. FACTUAL BACKGROUND
In the late afternoon of December 16, 2014, Plaintiff decided to purchase
pizza for her granddaughters. She arrived at the Pizza Hut take-out restaurant

2

around 6:30 p.m. Plaintiff chose this restaurant because of its proximity to her
daughter’s house, as well as her belief that a large pepperoni pizza was only $5.00.
When she arrived at the restaurant, Danyel Beanum was working at the
service counter. He rudely informed Plaintiff that there was no $5.00 special for a
large pizza, rather the special was two large pizzas for $10.00. However, she could
buy a small pizza at the $5.00 price. Plaintiff ordered a small pizza.
Plaintiff felt uncomfortable waiting for her pizza inside of the restaurant
because a man was selling bootleg DVD movies and he aggressively attempted to
sell his products to Plaintiff. She decided to wait for her order in her car. When
she returned, Beanum told her that her pizza was ready. Employees and customers
were separated by bullet-proof glass; thus, the restaurant used a dispensary device
to provide pizza and drinks to customers. Beanum placed Plaintiff’s pizza in the
dispensary device and walked away without saying anything to Plaintiff.
Plaintiff believed that the transaction had ended and that she was supposed
to retrieve her pizza from the dispensary device. She saw a small opening in the
device and she began to place her left hand inside to obtain her pizza. As she
reached into the dispensary device, she saw Beanum out of the corner of her eye
turn toward her and it appeared that he pushed a button or flipped a switch. She
heard a popping noise and immediately withdrew her hand without attempting to
take the pizza. As she did this, she felt excruciating pain in her left index finger at

3

the same time she heard and felt metal components of the dispensary device move
rapidly.
Plaintiff was in shock and began screaming.

She placed her left hand

between her legs to put pressure on it and saw blood dripping from her hand and
blood on the floor. Beanum and the other employees appeared dazed and did not
take any action to assist Plaintiff. Another customer entered the restaurant, saw the
blood, and came to Plaintiff’s aid. The customer called Plaintiff’s daughter and it
is believed he called 911 as well.
Beanum provided very hard, rough and unabsorbent paper to Plaintiff, which
failed to stop the bleeding. Beanum bent down to inspect the dispensary device
and found Plaintiff’s severed fingertip and placed it in a dirty container with ice.
Plaintiff was later told by emergency room staff that by placing the fingertip
directly on ice, Beanum eliminated any possibility of surgical reattachment.
The loss of Plaintiff’s left index fingertip has caused permanent physical and
emotional injuries. She can no longer use her left hand without pain.

She

experiences pain in her left hand and wrist due to the injury and has been
diagnosed with Complex Regional Pain Syndrome, a chronic medical condition
associated with severe, burning pain, inflammation, and changes in the skin. Due
to her injury and pain, Plaintiff has also been treated for severe depression at the

4

University of Michigan clinic. Prior to her injury, Plaintiff had plans to start her
own business, however these plans are on hold indefinitely due to her injury.
On October 16, 2018, Plaintiff’s expert, Ralph Lipsey Barnett, examined a
device represented by Defendants to be identical to the dispensary device that
severed Plaintiff’s left index fingertip. Barnett has been a Professor of Mechanical
and Aerospace Engineering at the Illinois Institute of Technology since 1969.
After examining the device, Professor Barnett opined that “the force with
which the door slams shut when forward pressure on the drawer handles is released
suddenly presents a hidden risk of substantial injury to a customer who happens to
have her hand inside the Wall Opening when this happens.” See Dkt. No. 81-2 at
Pg ID 1251, ¶ 14. He further noted that “a complex machine such as this device
should not be hidden from view to its operators,” and “[a] typical first time
customer to a Pizza Hut restaurant with this device would have no idea how it
worked and could not possibly understand its safety hazards.” Id. at ¶¶ 17-18. As
such, he concludes that the safety risks presented by the dispensary device were
not “open and obvious.” Id. at ¶ 19.
Plaintiff filed the instant action on January 25, 2017 naming Yum! Brands,
Pizza Hut of America, Inc., Redberry-Delaware, Redberry-Canada, and John Doe
Entities 1 through 10. She brought the following claims: Count I, Negligence
against Redberry-Delaware; Count II, Vicarious Liability against Redberry-

5

Delaware; Count III, Premises Liability against Redberry-Delaware; Count IV,
Negligence against Redberry-Canada, Count V, Third Party Beneficiary Breach of
Contract against Redberry-Delaware and Redberry-Canada; Count VI, Negligence
against Pizza Hut of America; Count VII, Third Party Beneficiary Breach of
Contract against Redberry-Delaware and Pizza Hut of America; Count VIII,
Negligence against Yum! Brands; Count IX, Third Party Beneficiary Breach of
Contract against Pizza Hut of America and Yum! Brands; Count X, Negligence
against John Doe Entities 1-10; and Count XI, Strict Product Liability against John
Doe Entities 1-10.
Plaintiff did not serve Malibu Builders, a putative John Doe Entity, until
August 4, 2018. On August 27, 2018, Malibu Builders filed a Motion for a More
Definite Statement. On September 4, 2018, Malibu Builders filed a Motion to
Adjourn requesting that all dates in the Court’s August 9, 2018 Stipulation and
Order to Adjourn Dates be extended by 120 days.
The Court held a status conference with the parties on September 24, 2018.
At the hearing, Plaintiff indicated that she would be filing an Amended Complaint
in an effort to address Malibu Builders’ Motion for More Definite Statement,
namely Plaintiff’s negligence and strict liability claims, Counts X and XI. The
Court also indicated at the conference that it would not extend the dates set forth in
its August 9, 2018 Order, but would sever Malibu Builders from the action so that

6

Plaintiff’s claims against Malibu Builders would proceed on a different schedule
than that of the other named Defendants.
On September 28, 2018, Plaintiff filed an Amended Complaint. In her
Amended Complaint, Count XI, Design Defect Strict Product Liability, was
brought against all of the Defendants, as opposed to only the John Doe Defendants.
She also brought Count XII against all of the Defendants, which alleges a failure to
warn strict product liability claim.
III.

LAW & ANALYSIS
A. Defendants’ Motion for Summary Judgment
1. Standard of Review

Federal Rule of Civil Procedure 56(a) “directs that summary judgment shall
be granted if there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quotations omitted). The court
must view the facts, and draw reasonable inferences from those facts, in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine dispute of material
fact exists where the record “taken as a whole could not lead a rational trier of fact
to find for the non-moving party.” Matsushita Elec. Indus., Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Ultimately, the

7

court evaluates “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.
2. Analysis
Defendants first argue that Counts I and II, negligence and vicarious
liability, against Defendant Redberry-Delaware should be dismissed because
Plaintiff cannot allege a negligence claim when her allegations sound in premises
liability.
In her Amended Complaint, Plaintiff alleges that “Beanum . . . acting in the
regular course of his employment . . . failed to instruct Ms. Harris as to how to
safely withdraw her pizza from the pizza dispensary device.” Compl. ¶¶ 30-31.
She further alleges that “Beanum activated the pizza dispensary device in a manner
that caused the internal drawer of the device to suddenly and rapidly move, thereby
amputating Ms. Harris’ left index fingertip.” Id. at ¶ 33. Plaintiff maintains that
Redberry-Delaware had “a duty to exercise ordinary care to protect customers and
other public invitees from unreasonable risks of injury[,]” a duty to instruct Ms.
Harris on the use of the pizza dispensary device and how to withdraw her pizza
safely from the device[,]” and “a duty to use reasonably safe operation methods
with the pizza dispensary device[.]” Id. at ¶ 37.

8

It is true that “[c]ourts are not bound by the labels that parties attach to their
claims” and that “Michigan law distinguishes between claims arising from
ordinary negligence and claims premised on a condition of the land.” Buhalis v.
Trinity Continuing Care Servs., 296 Mich. App. 685, 691-92 (Mich. Ct. App.
2012).

The law is well settled that “[i]f the plaintiff’s injury arose from an

allegedly dangerous condition on the land, the action sounds in premises liability
rather than ordinary negligence; this is true even when the plaintiff alleges that the
premises possessor created the condition giving rise to the plaintiff’s injury.” Id. at
692.
Defendants argue that Plaintiff’s negligence and vicarious liability claims
are extremely similar to the negligence claim asserted in Buhalis. The Court does
not agree. In Buhalis, the plaintiff slipped and fell on ice on a patio near the front
entrance of the defendant’s building. Id. at 689. The Buhalis court determined that
the plaintiff had clearly alleged a claim sounding in premises liability and not
negligence.

Id. at 693.

Even though she maintained that the defendant’s

employees had created the dangerous condition, she could not transform her claim
into one of ordinary negligence. Id.
Here, Plaintiff has alleged that Beanum failed to instruct her on the use of
the dispensary device, he activated the device in a manner that caused the
amputation of her finger, that Redberry-Delaware had “a duty to exercise ordinary

9

care to protect customers and other public invitees from unreasonable risks of
injury[,]” and “a duty to use reasonably safe operation methods with the pizza
dispensary device[.]” Compl. ¶ 37. Michigan law recognizes that claims arising
from dangerous conditions on the land may be “grounded on an independent
theory of liability based on the defendant’s conduct.” Laier v. Kitchen, 266 Mich.
App. 482, 493 (Mich. Ct. App. 2005).
Similar to the facts in Laier, where the court found that the plaintiff had
alleged an ordinary negligence claim in addition to a premises liability claim,
Plaintiff has alleged both claims in her Amended Complaint because she has
alleged that her injury arose from Beanum’s failure to exercise care in the
operation of the dispensary device and failure to operate the device in a reasonably
safe manner.

In Lair, the plaintiff’s decedent brought an action against his

neighbor for “fail[ing] to exercise care in the repair of the front-end loader and his
operation of the equipment before the bucket fell and injured [his son] which was
an additional theory of liability separate from that of premises liability.”
The Laier court explained that “[d]efendant’s conduct was thus an alleged
basis of liability, independent of premises liability.” Id. (emphasis in original)
(“[L]iability for negligence in respect to dangerous instrumentalities . . . arises
from the failure to use due care, and one who causes or authorizes the use of a
dangerous instrument or article in a negligent manner . . . is responsible for the

10

natural and probable consequences of his act to any person injured who is not
himself at fault.”) (citing 46 A.L.R.2d 1377-78, § 1a). Plaintiff similarly alleges
that Beanum’s conduct was the alleged basis of her injury and that his conduct
prevented the possibility of reattaching her index fingertip when he placed it on ice
in a dirty container. Plaintiff has stated an ordinary negligence claim in addition to
her claim of premises liability. Defendant Redberry-Delaware is not entitled to
summary judgment on Counts I and II.
Next, Defendants assert that Plaintiff’s Count III, premises liability, should
be dismissed because the risk of the dispensary drawer was open and obvious. The
Court likewise rejects Defendants’ argument. Defendants have failed to establish
there is no material question of fact as to the open and obvious defense. Plaintiff
has introduced evidence from her expert, Professor Barnett, opining that the
dispensary device posed a serious risk of injury that was hidden from customers.
See Dkt. No. 81-2 at ¶¶ 14, 17-19.
“Whether a danger is open and obvious depends on whether it is reasonable
to expect an average user of ordinary intelligence to discover the danger upon
casual inspection.” Laier, 266 Mich. App. at 498. Here, Plaintiff has come
forward with sufficient evidence showing that a material question of fact exists as
to whether the dispensary drawer was an open and obvious condition. Defendant
Redberry-Delaware is not entitled to summary judgment on Count III.

11

Defendants also argue that Plaintiff’s negligence claim against Defendant
Yum! Brands,2 Count VIII, should be dismissed because it owed no duty to
Plaintiff.

Plaintiff counters that her claim is not based on Yum! Brands’ direct

involvement in the operation of the subject restaurant, rather it is based on Yum!
Brands’ failure to monitor, supervise, and assure the safety of the restaurants under
its control.

Plaintiff presents Yum! Brands public filings which show it

promulgates safety standards for its three business units, including Pizza Hut.
Plaintiff argues that Yum! Brands has provided no admissible evidence regarding
its business practices and does not deny its involvement with promulgating
operating standards for its business units.
In Michigan, “the question whether the defendant owes an actionable legal
duty to the plaintiff is one of law which the court decides after assessing the
competing policy considerations for and against recognizing the asserted duty.”
Friedman v. Dozorc, 412 Mich. 1, 22 (1981). In order for liability to be extended
from the franchisee to the franchisor, the franchisor must retain the right to oversee
the day-to-day operations of the franchisee. See Little v. Howard Johnson Co., 183
Mich. App. 675, 681 (Mich. Ct. App. 1990).

Plaintiff agrees with Defendant Pizza Hut of America, LLC that she sued this
defendant by mistake as Pizza Hut, LLC franchised the subject Pizza Hut
restaurant to Redberry-Delaware. Plaintiff has recently filed a Motion for Leave to
Amend the Complaint to substitute the correct party, which will be addressed infra.
Pizza Hut of America, LLC is dismissed from this action.

2

12

Defendants have produced evidence demonstrating that Yum! Brands was
not the owner, possessor, or franchisee of the subject location at the time of the
alleged incident. The subject restaurant was franchised by Pizza Hut, Inc. to
Redberry Delaware in September of 2009. See Defs.’ Mot. at Ex. E. Yum! Brands
was not the franchisor of the restaurant and had no control over its day-to-day
operations. See Defs.’ Reply at Ex. J. Accordingly, Defendant Yum! Brands is
entitled to judgment in its favor on Count VIII.
Defendants also argue that Plaintiff’s third-party beneficiary breach of
contract claims, Counts V, VII and IX, must be dismissed because there was no
privity of contract between Plaintiff and Defendant. Plaintiff fails to address this
argument in her responsive brief. Thus, she has abandoned these claims. See
Brown v. VHS of Michigan, Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (“[A]
plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in
response to a motion for summary judgment.”); see also Clark v. City of Dublin,
178 F. App’x 522, 524-25 (6th Cir. 2006)(same).

Therefore, Defendants are

entitled to judgment in their favor on Counts V, VII and IX.
Defendants did not address Counts XI, Design Defect Strict Product
Liability and Count XII, Failure to Warn Strict Liability in their Motion for
Summary Judgment. However, Defendants do address these claims in their Reply
in Support of Summary Judgment arguing that their Motion for Summary

13

Judgment seeks dismissal of all Plaintiff’s claims against them. In the Court’s
view, Counts XI and XII, were improperly brought against Defendants Yum!
Brands and Redberry-Delaware.
These Defendants were served with process for this action in early 2017.
Plaintiff was permitted to amend her Complaint in September of 2018 in order to
address the deficiencies with respect to her claims asserted against Malibu
Builders, a former John Doe Entity Defendant, which had not been brought into
this action until August of 2018.

Instead of only rectifying her pleading

deficiencies against Malibu Builders, Plaintiff took it upon herself to allege Count
XI against the remaining Defendants in addition to Malibu Builders. She also
added Count XII to her allegations against all of the Defendants-Yum! Brands,
Redberry Delaware and Malibu Builders. Plaintiff did not seek leave of Court to
bring these additional claims as contemplated by Rule 15 of the Federal Rules of
Civil Procedure. In determining when to allow amendment under Rule 15, this
Court must consider certain factors, including “undue delay, bad faith or dilatory
motive.” Jones v. Robinson Property Group, L.P., 427 F.3d 987, 994 (2005).
Counts XI and XII were first alleged against these Defendants on September
28, 2018. It would be highly prejudicial for Plaintiff to be allowed to bring these
claims so late in this litigation. Trial is set for less than a month away and

14

discovery is closed. These claims are dismissed as to Defendants Yum! Brands
and Redberry-Delaware.
B. Defendants’ Motion for Leave to File Notice of Non-Party Fault
In the present motion, Defendant Redberry-Delaware seeks to name Malibu
Builders, the alleged installer of the dispensary device, and Bullet Guard, the
alleged manufacturer of the dispensary device, as two nonparty entities at fault in
this matter pursuant to Mich. Ct. R. 2.112(K). Redberry-Delaware argues that the
parties learned of the identity of these entities late in the discovery process and
these parties had actually been in this cause of action until the Court bifurcated
Plaintiff’s action. Defendant Redberry-Delaware argues that if it is prohibited
from filing a Notice of Non-Party fault, Plaintiff will be permitted to “double-dip”
her damages for the incident. Redberry-Delaware asserts that it should be allowed
to name Malibu Builders and Bullet Guard as proposed at fault non-parties for the
trial, so the jury is able to attribute a fair apportionment of liability.
In support, Redberry-Delaware asserts that the case law is clear that it is
appropriate to add parties that may be at fault for the subject injury even if the nonparty has been dismissed from the suit.

In Rihani v. Greeley & Hansen of

Michigan, LLC, No. 256921, 256941, 2005 WL 2759210, *9 (Mich. Ct. App. Oct.
25, 2005), the Michigan Court of Appeals found that a trial court erred in not
letting a defendant add the City of Detroit as a non-party at fault after the City had

15

been dismissed under a theory of governmental immunity. Id.; see also Kopp v.
Zigich, 268 Mich. App. 258; 707 N.W.2d 601 (Mich. Ct. App. 2005); Romain v.
Frankenmuth Mutual Ins. Co., 483 Mich. 18; 7692 N.W.2d 911 (2009).
Plaintiff counters that Redberry-Delaware’s present motion is untimely
because Mich. Ct. R. 2.112(K) requires that any notice of non-party fault be filed
within 91 days of a first responsive pleading.

Plaintiff further asserts that

Redberry-Delaware’s claim that it did not know the identities of Malibu Builders
and Bullet Guard until late in the discovery process is disingenuous because
Defendant knew or could have easily discovered the identity of these parties.
Plaintiff claims that Redberry-Canada contracted with Malibu Builders to renovate
the subject restaurant and install the dispensary device. Plaintiff requested this
information in her first discovery requests served in October of 2017. However,
Redberry-Canada refused to produce this information requiring Plaintiff to file a
motion to compel. Even then, Defendants’ discovery responses failed to accurately
identify Malibu Builders as the installer of the dispensary device. It was not until
Redberry’s Regional Manager’s deposition that Plaintiff learned of the correct
identity of Malibu Builders.
Defendant counters that the alleged manufacturer and installer of the
dispensary device had been parties to the case since its inception and did not
become nonparties until this Court bifurcated the action. As such, Redberry-

16

Delaware could not have filed a notice of non-party at fault until they were no
longer parties to this action. See Salter v. Patton, 261 Mich. App. 559, 567; 682
N.W.2d 537 (Mich. Ct. App. 2004)(reversing the circuit court’s decision denying a
motion for leave to file notice of nonparty fault seeking to add previously named
parties to an action who were dismissed via settlement).

Similar to Salter,

Redberry-Delaware could not have known of the need to file a notice of nonparty
fault until the Court severed Malibu Builders and the other John Doe entities from
this action.
Moreover, Redberry-Delaware asserts that it was not the lessee at the time of
dispensary device’s installation. As such, it did not possess any of the documents
related to the installation of the device. Redberry-Delaware’s Regional Manager
was the contact for discovery responses and he identified the installer as Malibu
Construction. When Defendant Pizza Hut provided later responses identifying
Bullet Guard as the dispensary manufacturer, Defendants were then able to identify
Malibu Builders as the installer. Thus, contrary to Plaintiff’s claims, Defendants
did not intentionally act in bad faith and withhold the identities of these entities.
Based on the foregoing, Defendant Redberry-Delaware could not have filed
its Notice of Non-Party Fault until Malibu Builders and the other John Doe entities
were severed from the Pizza Hut Defendants.

Moreover, Plaintiff has not

demonstrated any prejudice if these entities are included as non-parties as fault.

17

Accordingly, Defendant Redberry-Delaware’s Motion to File Notice of Non-Party
Fault is granted.
C. Plaintiff’s Motion for Leave to Amend
Plaintiff seeks leave to amend to substitute Pizza Hut, LLC for Defendant
Pizza Hut of America, LLC. Plaintiff is not entitled to amend her complaint at this
late stage of the litigation. Plaintiff was put on notice that Pizza Hut of America,
LLC was not the proper entity in February of 2017 when the Defendants informed
her that she had named the incorrect party. In June of 2018, Plaintiff was provided
with the franchise agreement which identified Pizza Hut, Inc. as the franchisor.
Plaintiff failed to take any action to amend her complaint to add the proper party
until after Defendants had filed their Motion for Summary Judgment. Plaintiff has
demonstrated “undue delay” in seeking amendment to add Pizza Hut, LLC as the
proper party. Allowing her to add this party at this late stage-mere weeks before
the facilitation and the trial-would cause severe prejudice to Pizza Hut, LLC.
Accordingly, her Motion for Leave to Amend will be denied. Jones, 427 F.3d at
994.
IV.

CONCLUSION

Accordingly, for the reasons articulated above, Defendants’ Motion for
Summary Judgment [#67] is GRANTED IN PART and DENIED IN PART.
Defendants Pizza Hut of America, LLC, Yum! Brands and Redberry Resto Brands,

18

Inc. (“Redberry-Canada”) and Counts IV, V, VI, VII, VIII, and IX are
DISMISSED.
Additionally, Counts XI and XII are DISMISSED against Defendant Yum!
Brands and Redberry Resto Brands Int’l, Inc. (“Redberry-Delaware”).
Counts I through III remain against Defendants Redberry Resto Brands Int’l,
Inc.
Counts X, XI and XII remain against Malibu Builders.
Defendants’ Motion for Leave to File Notice of Non-Party Fault [#66] is
GRANTED as to Malibu Builders and Bullet Guard.
Plaintiff’s Motion for Leave to Amend [#80] is DENIED.
SO ORDERED.
Dated: November 13, 2018

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 13, 2018, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Case Manager

19