Scholl v. NCK Tools, Inc. et al

Filing 84

ORDER denying the Defendants' 70 Motion for Leave to File Second Amended Answer. Ordered by Magistrate Judge Michael D. Nelson. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JENNIFER D. SCHOLL, an individual,
Plaintiff,
vs.
MARTY ADE d/b/a NCK Tools, Inc., and
STEVEN E. ROBBINS, an individual,

4:18CV3039
ORDER

Defendants.
This matter is before the Court on Defendants’ Motion for Leave to File Second Amended
Answer (Filing No. 70). Plaintiff opposes the motion. (Filing No. 73). For the following
reasons, the Court will deny the motion.
On November 1, 2017, Plaintiff was driving eastbound on U.S. Highway 136 in a Yamaha
Viking UTV, four-wheel all-terrain vehicle, when she was struck from behind by a double-axle
pickup truck driven by defendant Steven Robbins. At the time, Robbins was working in the
course and scope of his employment with defendant NCK Tools, which is owned by defendant
Marty Ade. Plaintiff was not wearing a seat belt at the time of the collision and was ejected from
the UTV, sustaining several injuries requiring surgery. Plaintiff filed this negligence action on
March 14, 2018. (Filing No. 1). Defendants’ operative answer raises the affirmative defense of
contributory and/or comparative negligence. (Filing No. 47 at p. 3). Defendants specifically list
separate allegations of Plaintiff’s contributory and/or comparative negligence, including that
Plaintiff was operating an unauthorized vehicle on the highway, failed to use her headlight and
taillight, failed to use a safety flag, and failed to utilize the Yamaha Viking UTV’s safety harness
system at the time of the accident.
In the early stages of this case, pursuant to the parties’ Rule 26(f) Report (Filing No. 16),
the Court entered an initial case progression order (Filing No. 17) setting June 29, 2018, as the
deadline for parties to amend pleadings. Although the Court has since entered several amended
case progression orders extending case deadlines, the original deadline to amend pleadings was
never extended.1

The Third Amended Case Progression Order dated June 15, 2020, set

Defendants’ expert disclosure deadline for July 17, 2020. (Filing No. 54).
1

Defendants did file their amended answer (Filing No. 47) on December 2, 2019, after the deadline to
amend pleadings expired, with leave of court. (Filing No. 46).

During Plaintiff’s second deposition on May 28, 2020, she testified that the UTV she was
driving at the time of the collision had been modified by her family members by removing the
driver’s side door and shoulder bolster system. (Filing No. 72-1 at pp. 5-6). On June 29, 2020,
Defendants timely served Plaintiff with their expert disclosures, which included a report authored
by two experts that provided opinions that include consideration of the UTV’s modifications.
(Filing No. 72-2).
On January 4, 2021, Chief Judge Gerrard entered a Memorandum and Order concluding
that Plaintiff’s nonuse of her UTV’s seat belt at the time of the collision is inadmissible “in regard
to the issue of the plaintiff’s contributory negligence or the proximate cause of her injuries”
pursuant to Neb. Rev. Stat. § 60-6,273. (Filing No. 67 at p. 6). Following the ruling, the
undersigned magistrate judge scheduled a telephonic conference with counsel for January 14,
2021, to discuss case progression and other scheduling matters.

During this telephone

conference, which was not recorded, the issue was raised regarding whether Defendants needed to
amend their pleadings in order to proffer an expert report regarding the UTV’s modifications.
(Filing Nos. 68-69). Therefore, a week after the telephone conference, on January 21, Defendants
filed the instant motion seeking leave to file a second amended answer that alleges “with more
specificity” the affirmative defense of contributory/comparative negligence as to the UTV’s
modifications. (Filing No. 70).2 However, Defendants maintain that their operative answer,
which raises the affirmative defense of contributory and/or comparative negligence, encompasses
the expert reports at issue and thus the second amended answer is not necessary. (Filing No. 76 at
p. 2).
Plaintiff opposes the motion for leave to amend as it is untimely and because Plaintiff will
be prejudiced by the amendment. Plaintiff argues Defendants provided no explanation as to why
they waited eight months after Plaintiff’s deposition to file the instant motion to amend. Plaintiff
contends that Chief Judge Gerrard’s ruling on her motion for partial summary judgment renders
the UTV modification opinions “irrelevant and inadmissible” because it is an “end run” around
the Court’s ruling on the seat belt rule. (Filing No. 73 at pp. 3-5). Plaintiff also argues the expert
reports do not provide any causation opinion regarding the door or the shoulder and fail to meet
the standard for a testifying expert. (Filing No. 74 at p. 6).
2

On February 16, 2021, the parties scheduled mediation with a private mediator at the Court’s direction, and
therefore the instant motion was held in abeyance until mediation was complete. The parties notified the Court on
March 15, 2021, that mediation was unsuccessful. (Filing Nos. 80-83).

There is no question Defendants’ motion for leave to amend is untimely under the
progression order. However, the undersigned magistrate judge agrees with Defendants that no
amendment of their answer is necessary. “In responding to a pleading, a party must . . . state in
short and plain terms its defenses to each claim asserted against it.” Fed. R. Civ. P. 8(b).
Defenses “need not be articulated with any rigorous degree of specificity, and may be sufficiently
raised for purposes of Rule 8 by their bare assertion.” Infogroup, Inc. v. DatabaseLLC, 95 F.
Supp. 3d 1170, 1193 (D. Neb. 2015)(Gerrard, J.)(citing Zotos v. Lindbergh Sch. Dist., 121 F.3d
356, 361 (8th Cir. 1997)). Here, Defendants raised Plaintiff’s contributory and/or comparative
negligence as an affirmative defense from the outset of this case. That is all Defendants were
required to do. During the course of discovery, and more specifically, during Plaintiff’s second
deposition on May 28, 2020, Defendants learned information regarding Plaintiff’s modifications
of the UTV, which information was utilized by Defendants’ experts for reports served on Plaintiff
on June 29, 2020. Defendants’ expert disclosures were timely served under the case progression
order. Whether, as Plaintiff argues, Chief Judge Gerrard’s ruling dated January 4, 2021, renders
Defendants’ expert reports “irrelevant and inadmissible,” or whether the experts meet the standard
for a testifying expert are issues more properly raised by a motion in limine. But, because
Defendants raised the affirmative defense of Plaintiff’s contributory and/or comparative
negligence by its “bare assertion,” Defendants do not need to file a second amended answer
specifying exactly how Plaintiff was contributorily and/or comparatively negligent in order to
preserve the issue. Accordingly,
IT IS ORDERED: Defendants’ Motion for Leave to File Second Amended Answer
(Filing No. 70) is denied.
Dated this 17th day of March, 2021.
BY THE COURT:
s/Michael D. Nelson
United States Magistrate Judge