White et al v. Ameristep, Inc.

Filing 59

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiff Whites motion for leave to file a second amended complaint (#51) is DENIED.IT IS FURTHER ORDERED that plaintiff Whites motion to compel discovery (#46) is DENIED. IT IS FURTHER ORDERED that pl aintiff Whites motion to extend scheduling order deadlines (#52) is GRANTED, consistent with the Second Amended Case Management Order that the Court will file.IT IS FURTHER ORDERED that, by January 12, 2018, plaintiffs shall file an amended complaint that alleges defendants principal places of business. ( Amended/Supplemental Pleadings due by 1/12/2018.). Signed by District Judge Stephen N. Limbaugh, Jr on 12/22/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEFFREY WHITE
Plaintiff,
v.
AMERISTEP, INC., and,
TAHSIN INDUSTRIAL CORP.
Defendants.

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Case No. 4:16-CV-1216-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Jeffrey White’s motion for leave to file
a second amended complaint (#51), motion to compel discovery (#46), and motion to
extend scheduling order deadlines (#52).
I.

Factual Background
Plaintiff was injured when his Tahsin 2010 Model WMLS-500CS two-man

ladderstand (“subject treestand”) allegedly failed and collapsed while he was climbing
the treestand’s ladder. Plaintiff then filed this product liability lawsuit.
Plaintiff served his first request for interrogatories and first request for production
of documents. Defendants responded to both. Plaintiff also deposed defendants’
corporate representative, pursuant to Rule 30(b)(6) of the Federal Rules of Civil
Procedure.
II.

Motion for Leave to File a Second Amended Complaint (#51)

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When plaintiff first filed this lawsuit, he named as defendants Ameristep, Inc., and
Primal Vantage Co., Inc. Distributor (#1). Then, “based on representations of defense
counsel that Primal Vantage was not the proper party,” plaintiff voluntarily dismissed
Primal Vantage and replaced it with Tahsin Industrial Corp. (#24). After deposing
Tahsin’s corporate representative, plaintiff now believes that Primal Vantage should, in
fact, be a defendant in this lawsuit. Plaintiff claims that “Primal [Vantage] continues to
be the primary actor in the design, marketing, management[,] and placement of the
subject ladder deer stand in the stream of commerce.” (#51 at 2.)
Defendants oppose the motion. They argue that “Primal Vantage owed no duty to
Plaintiff and . . . did not manufacture, design[,] or distribute the subject [treestand].”
(#57 at 1.) Defendants claim that plaintiff wants to add Primal Vantage as a party so he
can discover information about treestands—unrelated to the subject treestand—that
Primal Vantage distributes. Defendants urge the Court to deny the motion because (1) it
is untimely and dilatory, (2) any claim against Primal Vantage would be futile, (3) adding
Primal Vantage as a party would significantly prejudice the other defendants, and (4) the
deadline to join or amend parties has passed.
Plaintiff did not file a reply brief, and the time for doing so has passed.
Because defendants have filed an answer (#12), plaintiff “may amend [his]
pleading only with the opposing party’s written consent or the court’s leave. The court
should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Bell
v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998). But parties do not have an
absolute right to amend their pleadings, even under this liberal standard. Sherman v.
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Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008). Whether to grant a motion for
leave to amend is within the discretion of the district court. Popoalii v. Correctional
Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).
A district court may deny a motion to amend if (1) it was filed with undue delay,
(2) the moving party filed the motion with bad faith or dilatory motive, (3) the opposing
party would be unfairly prejudiced by the amendment, or (4) the amendment would be
futile. Bell, 160 F.3d at 454.
The Court finds that any claims against Primal Vantage, as currently pleaded in
plaintiff’s proposed second amended complaint, would be futile because they are legally
insufficient on their face. Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 225
(8th Cir. 1994). Specifically, plaintiff does not allege that Primal Vantage designed or
manufactured the subject treestand for Tahsin. Plaintiff simply claims that Primal
Vantage somehow worked with Tahsin in designing the subject treestand. This is a
“‘naked assertion’ devoid of ‘further factual enhancement’” and does not satisfy the
pleading requirements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (1995)). There is no allegation that
explains how Primal Vantage played any role in placing the subject treestand in the
stream of commerce.
Finally, plaintiff does not allege an alter ego or joint venture theory. Thus,
nothing in plaintiff’s allegations ties Primal Vantage to Tahsin. In sum, plaintiff fails to
connect Primal Vantage to both the product and the defendant Tahsin. The amendment
would be futile, and plaintiff’s request is denied.
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III.

Motion to Compel Discovery (#46)
This Court has wide discretion in dealing with discovery matters. Cook v.

Kartridg Pak Co., 840 F.2d 602, 604 (8th Cir. 1988). Discovery rules should be
construed broadly and liberally to serve the purpose of discovery—that is, “to provide the
parties with information essential to the proper litigation of all relevant facts, to eliminate
surprise, and to promote settlement.” Centrix Fin. Liquidating Tr. v. Nat’l Union Fire
Ins. Co. of Pittsburgh, No. 4:12-MC-624-JAR, 2013 WL 3225802, at *2 (E.D. Mo. June
25, 2013) (quoting Gladfelter v. Wal-Mart Stores, Inc., 162 F.R.D. 589, 590 (D. Neb.
1995)).
Rule 26(b)(1) provides the discovery scope and limits:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Rule 30(b)(6) allows a party to name a corporation or other organization as the
deponent in the party’s deposition notice or subpoena. The organization then designates
a representative who “must testify about information known or reasonably available to
the organization.” Fed. R. Civ. P. 30(b)(6).
Plaintiff claims the defendants failed to fully answer his interrogatories and failed
to fully provide responsive documents. He also claims the defendants’ corporate

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representative was not properly prepared to testify at her deposition. The Court takes
each in turn.
A.

Interrogatories and Request for Document Production

Although plaintiff claims the defendants failed to provide responsive documents
on several matters, in his briefing, plaintiff’s focuses entirely on Request for Document
Production No. 61 and Interrogatory No. 7,2 which relate to other similar incidents.
During the Rule 30(b)(6) deposition, defendants’ corporate representative said the subject
treestand’s ladder design is “see[n] . . . throughout different models and brands [of
treestands].” (#47 at 3.) Thus, plaintiff seeks “information on other ladder failures from
other similar designs of the defendants . . . .” (#47 at 3.) Specifically, plaintiff argues
that defendants must produce the Excel spreadsheet they use to document claims,
lawsuits, and failure reports. Plaintiff also argues that defendants must produce any
requests that consumers filed when asking for a ladder section replacement. Plaintiff
claims that evidence of similar events may show defendants’ notice of defects,
defendants’ ability to correct known defects, the magnitude of the danger, the subject
treestand’s lack of safety for intended uses, or causation.
Defendants contend that they have complied with plaintiff’s requests. First,
defendants point out that they have already produced documents relating to the only other
claim involving the subject treestand, 81,000 of which have been in the market in the last
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The full text of the request reads, “Produce all documents reflecting other reports, claims, or
lawsuits where a component of Defendant’s treestand bent or failed.” (#48-4 at 95.)
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The full text of the interrogatory reads, “State whether this defendant from 2005 to present
received any report, notice or complaint regarding any incident in which the model subject
treestand or any other Tahsin Industrial Corp. USA model treestand was involved in which it was
alleged any part of the treestand bent or otherwise failed . . . .” (#48-9 at 146.)

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five years. Second, they argue that plaintiffs’ requests for information related to “other
similar incidents” are overbroad. In that regard, defendants argue plaintiff has not made a
threshold showing of relevance in that the theory of product defect is still unknown.
Plus, there are differences between models, years, and brands for each treestand style.
And Tahsin has sold over 100 different makes and models in the last decade, many of
which are different from the subject treestand.
The Court agrees that plaintiff’s requests are overbroad, especially in light of the
81,000 identical treestands that have been in the market for the last five years.
B.

Corporate Representative Deposition

Plaintiff claims the defendants’ corporate representative was not prepared to
discuss four topics at the Rule 30(b)(6) deposition.
First, plaintiff argues, because the representative was not familiar with “stress
risers, failure mode effects analysis, [and] SAE standards,” the representative was not
prepared to discuss the deposition topic dealing with the American Society for Testing
and Materials (“ASTM”) standards, the American National Standards Institute (“ANSI”)
standards, and other standards applicable to treestands. But the representative explained
that the ANSI standards do not apply to treestands. She also noted that she’s familiar
with the applicable Treestand Manufacturer’s Association (“TMA”) and the ASTM
standards that defendants test to. This suggests that the topics the representative was
unfamiliar with are not part of the ASTM standards or that they otherwise are
inapplicable to the subject treestand. The deposition notice mentioned the ASTM and
other applicable standards, and the representative testified about both of those topics.
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Plus, defendants produced testing documents related to the subject treestand. This
argument fails.
Second, plaintiff argues that the representative was not prepared to discuss
defendants’ involvement with the TMA. This argument is not supported by the
deposition testimony and fails.
Third, plaintiff argues that the representative was not prepared to discuss other
claims, lawsuits, product failure reports, settlements, or judgments. The representative
explained that defendants keep this information in an Excel spreadsheet, and plaintiff’s
attorney then moved on to the next topic. That was the end of the discussion about this
topic. So this argument fails.
Fourth, plaintiff argues that the representative was not prepared to discuss any
money the defendants have paid for claims involving ladderstands. Again, the
representative said the defendants have a document that tracks this information. This
argument fails.
Thus, defendants need not produce a witness for another Rule 30(b)(6) deposition,
and plaintiff’s request is denied.
IV.

Motion to Extend Scheduling Order Deadlines (#52)
Per the Amended Case Management Order (#45), plaintiff’s expert witness reports

are due by January 2, 2018. Plaintiff asks the Court to extend that deadline by thirty
days. He also asks the Court to extend the date by which expert depositions must be
taken. Defendants agree to an amended scheduling order, so long as all other deadlines
also are extended (including their expert discovery deadline). Thus, the motion will be
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granted, plaintiff’s expert discovery will be due on February 1, 2018, and all later
deadlines will be adjusted accordingly. The court will file a Second Amended Case
Management Order that reflects the new deadlines.
V.

Pleading Requirements
The Amended Complaint (#24) asserts that the Court has jurisdiction over the

action pursuant to 28 U.S.C. § 1332 because the lawsuit is between citizens of different
states and the matter in controversy exceeds the sum of $75,000. Plaintiff alleges that he
is a citizen of Missouri and that defendants are Michigan and New Jersey corporations.
Plaintiff also provides addresses for the Michigan corporation’s “corporate office” and
the New Jersey corporation’s “registered agent.” But a corporation is a citizen of both
the state in which it is incorporated and the state where it has its principal place of
business. 28 U.S.C. § 1332(c). Plaintiff does not allege where defendants have their
principal places of business.
Because it is the plaintiff’s burden to establish subject matter jurisdiction in this
case, the Court again (see #6) grants plaintiff twenty-one days to file an amended
complaint that alleges facts showing the existence of the requisite diversity of citizenship
of the parties.
Accordingly,
IT IS HEREBY ORDERED that plaintiff White’s motion for leave to file a
second amended complaint (#51) is DENIED.
IT IS FURTHER ORDERED that plaintiff White’s motion to compel discovery
(#46) is DENIED.
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IT IS FURTHER ORDERED that plaintiff White’s motion to extend scheduling
order deadlines (#52) is GRANTED, consistent with the Second Amended Case
Management Order that the Court will file.
IT IS FURTHER ORDERED that, by January 12, 2018, plaintiffs shall file an
amended complaint that alleges defendants’ principal places of business.

So ordered this

22nd

day of December 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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